
    People ex rel. A. Filkins Hose Co. et al. v. Son, Treasurer of Fire Department.
    
      (Supreme Court, General Term, Third Department.
    
    June 1, 1892.)
    Fire Departments—Distribution op Funds—Power op Village Trustees.
    Under Laws 1854, c. 889, tit. 3, § 3, subd. 33, (charter of the village of Amsterdam,) authorizing the board of trustees to organize and establish a fire department, and to prescribe the powers and duties of the companies and the members thereof, the trustees had, in the absence of any other provision, power by resolution to direct the payment of the money coming into the hands of the fire department treasurer to the companies of the department, in proportion to their maximum membership as fixed by the trustees.
    Appeal from special term, Montgomery county.
    
      Mandamus on the relation of A. Filkins Hose Company and others against William H. Son, as treasurer of the fire department of the city of Amsterdam. From a final order denying a peremptory writ, and dismissing the alternative writ, relators appeal.
    Affirmed.
    Argued before Mayham. P. J., and Putnam and Herrick, JJ.
    
      Edward J, Maxwell, for appellants. C, S. Nisbet, for respondent.
   Matham, P. J.

The contest in this ease arises out of a disagreement as to the proper division and distribution of the funds received by the respondent, as treasurer of the fire department of the city of Amsterdam, from the agents of insurance companies, under the provisions of chapter 465 of the Laws of 1875, and the various amendments thereto. That act makes it the duty of every agent doing a fire insurance business within the limits of any city or incorporated village to annually pay to the treasurer of the fire department of such city or village $2 on every $100 of premiums received for insurance on property located in such city or village. The defendant, as such treasurer, received the sum in controversy under that law, and the relators insist that they, consisting of the various hose and hook and ladder companies of the city, shall each share that fund equally with all other engine and fire companies in that city. The statute under which this money is required to be paid to the treasurer of the fire department, or to the treasurer of the village or city when the fire department has no treasurer, does not indicate or direct how this fund shall be distributed among or be used by the fire companies, constituting the fire department of the cities or villages, to whose treasurer it is required to be paid. We must therefore look to the city or village charter, or to the authorized acts of the city government, or the fire department, for some ordinance, resolution, rule, or custom for the distribution of this fund. The answer to the alternative writ denies that all of the relators are members of, or constitute a part of, the fire department of the city of Amsterdam, and alleges that if the relators are duly incorporated, and do constitute a part of the fire department, they are not as companies to share equally in such fund with all the other fire or engine or steamer companies, and that such fund is not to be divided equally by companies, butyie?- capita, in proportion to the maximum number of men in each company, and that by regulation long established and acted upon by the village of Amsterdam, and, since its incorporation as a city, acquiesced in and adopted by it, the maximum membership of a steamer and hose company was and is 100 men, and of each hose company 30 men, and of each hook and ladder company 40 men, and this fund has, by resolution of the department and uniform usage, been distributed to the companies in proportion to their respective number of members. Upon the issue just framed, the referee to whom it was referred found as facts that all of the organizations named as relators are members of the fire department, and that the fire department was originally established by the board of trustees of the village of Amsterdam, who fixed by resolution, some time prior to the year 1875, the maximum number of the several companies to consist of 100 men to each steamer and hose company, 30 men to each hose company, and 40 men to each hook and ladder company; and that the fire department of the village became the fire department of the city of Amsterdam on its incorporation. The referee also found as a fact that the board of trustees of the village of Amsterdam by resolution directed that the moneys received from foreign insurance companies be divided among the several companies composing the fire department pro rata, in proportion to the number of members of said companies as fixed by the board of trustees; and that such resolution has never been rescinded by the board of trustees of the common council of the city of Amsterdam. The referee also found that, prior to the commencement of this action, the firemen at an annual meeting voted to rescind a resolution that had been passed by them in 1888, providing that the insurance moneys be divided pro rata among the several companies in proportion to their number of members. The referee found upon the facts of this case that, as matter of law, the trustees of the village and the common council of the city of Amsterdam had authority to regulate the number of members of the various fire companies in the village and city, and to apportion and distribute this insurance fund, and that the fire department had no power or authority to apportion this fund among the various companies composing the fire department, and held that the relators were not entitled to a peremptory mandamus, and that the-defendant was entitled to judgment dismissing the alternative writ.

By the charter of the village of Amsterdam (chapter 389, Laws 1854) the' trustees of the village were authorized to organize and establish a fire department. Subdivision 33, § 3, tit. 3 of the charter provides as follows: “The board of trustees are authorized to organize and establish a fire department to be composed of one or more fire, hook and ladder, bucket and hose companies-in said village, * * * and to prescribe the powers and duties of each of said companies, and of all the members thereof.” It is true that by this subdivision the maximum in each company was not to exceed 60 men, and we have not been' referred to any statutory authority conferred upon the board of trustees to increase the number in any case to 100. By chapter 582 of the-Laws of 1875 the treasurer of the fire department of the village of Amsterdam was made one of the officers of such village, and by section 3 of that act-he was authorized to collect and receive all moneys belonging to, or that may grow due to, that department, and pay the same over to the several companies composing said fire department as they shall be entitled to the-same. As there is no statute definitely defining the method of distribution of this insurance fund, and as the fire department was the creation of the-board of trustees, which, by the statute above referred to, had authority to prescribe the powers and duties of each of said companies, and all the members thereof, it was but a reasonable exercise of that power to direct the manner in which a subordinate officer of the village should distribute that fund. As we have seen, the referee finds as a fact that the board of village trustees assumed to and did exercise that power, and by resolution directed the payment of such money to the companies in proportion to their maximum members as fixed by such board, and that method of distribution was for some time followed and acquiesced in by the members of the fire department, and was in operation at the time, of the adoption of the city charter in 1885. By that charter the common council took the place of the village trustees, with the same or increased powers conferred by statute, and it was, by section 104 of that charter, empowered to establish and maintain an efficient fire department, and make all necessary rules and regulations for the government and discipline of the same, and, by section 108 of the charter, the fire department of the village of Amsterdam became the fire department of the city. The common council have never rescinded the resolution of the board of trustees in relation to the distribution of this fund, and, if that resolution was authorized and valid, it is, by the express terms of the charter, still operative. Section 128 of the charter (chapter 131, Laws 1885) provides that “ the existing ordinances, by-laws, resolutions, and regulations of the trustees of the village of Amsterdam, as the same shall be in force when this act shall fake effect, shall be and continue in force, and shall have the same force and effect * .* * as if duly adopted by the common council of the city, until the same shall have been repealed by the common council of said city.”

If we are right in our construction that the board of village trustees, under its general supervisory power of the fire department, could regulate the distribution of this fund so long as they acted in harmony with the general scope and purpose for which this money was given, which manifestly was to improve the efficiency of the various fire departments of the cities and villages of this state, then it follows that the resolution passed by that board must remain operative until the same is repealed, either by them or their successors in authority, the common council of this city. It has been held that the treasurer of the fire department should, under the directions of the trustees of the village or common council of the city, pay over all the moneys received or recovered under the first, second, and third sections of chapter 465 of the Laws of 1875, to the fire department of the city or incorporated village in which the department is located, (Trustees v. Roome, 29 Hun, 396,) and in' this case, on appeal to the court of appeals, that court, in discussing the relation which a fire department in a city or village bears to the municipality, use this language in speaking of firemen and fire companies: “Their duties were public duties; the service they rendered was a public service; their appointment comes from the common council; * * * they were liable to be removed by the authority which appointed them, and were intrusted with the care and management of the apparatus owned by the city; they are at least a public body, and perhaps are best described as a subordinate governmental agency.”

Tested by these reasons, we see no ground for holding in this case that the board of trustees of the village did not possess the power to make the order they did in relation to the distribution of these funds; and as that order has not been revoked or modified by the common council, it must be regarded as still in force, and the money should be disposed of by the defendant under its directions.

Having reached this conclusion, it is unnecessary to determine whether or not proceeding by mandamus was the proper remedy for the relators. The order denying the peremptory writ of mandamus, and quashing the alternative writ, must be affirmed, with $50 costs and disbursements. All concur.  