
    In the Matter of the Application of Catherine F. Mahon Respondent, for a Writ of Mandamus against The Board of Education of the City of New York, Appellant.
    
      Pensions to retired school teachers in New York city — an act conferring them on teachers who resigned before the pension system was created is unconstitutional.
    
    Chapter 725 of the Laws of 1900, which designates certain persons who had retired from their positions as teachers in the public schools of the city of New York, and directs the board of education to place their names on the pension list of retired teachers, created pursuant to chapter 296 of the Laws of 1894, as re-enacted in .section 1083 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by chap, 91 of the Laws of 1898), and to pay to each of them the annuity prescribed by said statutes, is unconstitutional, so far'as it relates to teachers who resigned, before the enactment of chapter-296 of the Laws of 1894, at a time when no provision had been made for pensioning teachers.
    Yan Brunt, P. J., dissented on the subject of costs.
    Appeal by the defendant, The Board of Education of the City of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of October, 1901, granting a peremptory writ of mandamus requiring the defendant forthwith to place the petitioner’s name on the list of retired teachers entitled to receive as an annuity one-half of the annual salary which they had received before such retirement.
    
      Theodore Connoly, for the appellant.
    
      Charles A. Decker, for the respondent.
   Laughlin, J.:

The right of the respondent to the relief granted by the order from which the appeal is taken is based on the provisions of chapter 725 of the Laws of 1900. The title of that act recites that it is “ for the relief of certain persons who have retired from their positions as teachers in the public schools of the city of New York.” Section 1 thereof names thirty-three individuals and authorizes and empowers the appellant to place their names on the list of retired teachers entitled to receive as an annuity one-half of the annual salary paid to them prior to retirement pursuant to the provisions of chapter 296 of the Laws of 1894, as re-enacted in section 1083 of the Greater New York charter (Laws of 1897, chap. 378) and amended by chapter 91 of the Laws of 1898, and to pay to each of them out of the funds provided by said first two statutes an annuity of one-half the amount of salary which they received at the date of their resignation as teachers in the public schools of said city. It is further provided that the payment of such annuities shall be made as from the date of resignation; but where the resignation occurred prior to the enactment of chapter 296 of the Laws of 1894,

' it is provided that payment shall commence as of the date of the passage of that law.

It does not appear from this special act how long the individuals therein named were employed as teachers in the public schools, nor is it stated when they retired from such service. In the case of the respondent, however, it appears’from the moving papers that her connection with the public -schools was severed by her retirement on the 1st day of September, 1892, prior to which time she had been continuously employed as a teacher from the year 1857. At the time of her retirement no provision had been made for pensioning teachers on account of' long service or otherwise, and no public fund liad been created for that purpose in which she had any interest, either legal or equitable. Chapter 296 of the Laws of. 1894 constitutes the first legislation on the subject applicable to the city of New York. That statute created a public school teachers’ retirement fund” to consist of (1) money, pay, compensation or salary forfeited, deducted or withheld from teachers on. account of absence from duty; (2) moneys received from donations, legacies, gifts, bequests or otherwise for and on account of that fund; and (3) “ All such other methods of increment as may be duly and legally devised for the increase of said fund.”

The provisions of that statute were substantially re-enacted in section 1083 of the Greater New York charter, but by chapter 91 of the Laws of 1898 this section was amended by adding a provision for the increase of the fund by the addition thereto annually of five per centum of all excise moneys or license fees belonging to> or received by the city of New York. By chapter 466 of the Laws of 1901 former section 1083 became section 1092 of the Greater-New York charter, and the funds provided for the retirement of public school teachers in the cities of New York and Brooklyn, as-they formerly existed, were apparently therein consolidated, but. the provision with reference to the making up of the pension fund remains the same.

The conditions prescribed by the Legislature in these various-statutes for the retirement of teachers upon half pay are not-less-than thirty years’ service as a teacher in the public schools and either advanced age or actual mental or physical incapacity to discharge the duties of the position.

Such pension laws, so called, are now quite common, both in State and Federal legislation.- These annuities, after the expiration of' the period of active service, are not gratuities, but are in the nature of compensation for the services previously rendered for which full and adequate compensation was not received at the time of the rendition of the services. In other words, it is in effect pay withheld to induce long-continued and faithful service. Such statutes are-designed to benefit the public service in two ways: First, by encouraging competent and faithful employees to remain in the service-: and refrain from embarking in. other vocations; and, second, by retiring from the public service those who, by devoting their best •energies for a long period of years to the performance of duties in a public office or employment have, by reason thereof or of advanced age, become incapacitated from performing the duties as well as they might be performed by others more youthful or in greater physical or mental vigor. Provision is thus made for the partial support of such teachers when their retirement without such provision was deemed inequitable, and but for such provision doubtless would not be enforced. These and other considerations will sustain such legislation from successful attack where the Legislature has limited the application of the law to those who are in the public service or employ at the time of its enactment. As to those, however, who have passed out of the public service at a time when no such obligation had been assumed toward them, retroactive legislation of this character becomes obnoxious to the Constitution. In such case the annuity becomes a mere gratuity, the giving of which is prohibited by section 10 of article 8 of the Constitution. (Matter of Jensen, 44 App. Div. 509; Matter of Chapman, 57 id. 583; affd., 168 N. Y. 80.)

It is evident that the fund mainly consists of public moneys of the city of New York. (Trustees of Exempt Firemen's Fund v. Roome, 93 N. Y. 313 ; Fox v. Mohawk & H. R. Humane Society, 165 id. 517.) It does not appear that there has been any gift, donation, bequest or legacy by which the fund has been increased, and no question is presented as to the authority to appropriate moneys given or bequeathed for the benefit of teachers who have previously severed their connection with the public schools.

These views lead to the conclusion that the special act in question, so far as it relates to the respondent, is unconstitutional and void.

The order is, therefore, reversed, and the proceeding dismissed, but without costs.

Patterson and O’Brien, JJ., concurred; Yan Brunt, P. J., dissented as to costs.

Van Brunt, P. J.:

I concur, except as to costs. I see no reason why costs should not be allowed.

Order reversed, and proceeding dismissed, without costs.  