
    In the Matter of the Application of Robert Hamburger, Respondent, for a Writ of Mandamus, v. The Board of Estimate and Apportionment of the City of New York, Appellant, Requiring Said Board to Fix His Salary, as Required by Law.
    First Department,
    November, 1905.
    Mandamus —when it will not lie to compel board of estimate and apportionment of New York to fix stenographer’s salary — Consolidation Act and city charter construed.
    Though the salary of the stenographer to the board of coroners of the borough of The Bronx was fixed at §3,500 by section 1768 of the Consolidation Act, the revised charter of the city of New York, enacted in 1901, together with the amendments thereto made by the Laws of 1903, chapters 435 and 436, gives power to the board of estimate and apportionment, on'the recommendation of the coroners of the borough of The Bronx, to fix the salary of such stenographer at §3,000.
    Hence¡ one who has been so appointed stenographer at a salary of §3,000, cannot compel said board of estimate and apportionment, by mandamus, to fix his salary at §3,500. ' ,
    A relator, on mandamus, who alleges that one of the duties of such board of estimate and apportionment is “the fixing of the salaries of the various municipal employees,” but who urges, on the argument, that the board has no power to fix the salary, as it is fixed , by law, shows that he is not entitled to the remedy, for the court cannot, by mandamus, compel an officer or board to do that which the law does not require.
    Appeal by the defendant, The Board of Estimate and Apportionment of the City of Hew York, from an order of the Supreme Court, made at the Hew York Special -Term and entered in the office of the clerk of the county of Hew York on the 28th day of June, 1905.
    
      Charles A. O'Neil, for the appellant.
    
      Henry K. Davis, for the respondent.
   Clarke, J.:

Appeal from an order of the Special Term allowing a writ of peremptory mandamus requiring the board of estimate and apportionment of the city of Hew York forthwith to fix the salary of the petitioner as stenographer to the board of coroners, borough of The Bronx, in the sum of $2,500 per annum, and to provide the necessary appropriation for that purpose. The petitioner was appointed stenographer to the board of coroners of The Bronx on January 10, 1902, at a salary of $2,000 per annum and has been receiving said salary ever since. He claim's that section 1Y68 of the Consolidation Act (Laws of 1882, chap. 410, as amd. by Laws of 1896, chap. 732) fixed his salary, at $2,500, and that, therefore, he does not come within any of the provisions of the charter, original or amended, which gives any body or any board power to fix his salary at any other amount; and that being fixed by law, he is entitled to. a man-damns to compel the observance of the law by the board of estimate and apportionment. At the outset it should be pointed oiit that the petitioner alleges that among the duties required of the board of estimate and apportionment is “ the fixing of the salaries of the various municipal employees and officers, and among others are the stenographers attached to the board of coroners in the various boroughs in said city; ” and the prayer is that a peremptory writ of mandamus issue directing said board to fix the petitioner’s salary at $2,500 as required by law. The case cited and the argument had upon this petition, however, are to the effect that the board had no power to fix the said salary as it was already fixed by law.. If that contention be sound, how can the court compel the board to perform an act for which there is no warrant in law ? Mandamus proceeds .upon the .theory of a clear legal right; it is to correct the neglect or refusal of an officer or board to do that which by law it is bound to do. If the officer or board has discretion, the court will hot. control the exercise of that discretion. It may tell the officer to act, but it will not compel him to act in a particular way. • If he has no power to act, the court will not compel him to do that which the law does not. So that if the petitioner’s contention is sound and his salary is fixed by law, the board has no control over it, it cannot fix it, he has mistaken his remedy and mandamus will not lie.

Examining the question on its merits — in the case relied on (Baker v. City of New York, 56 App. Div. 350) -the salary of Baker, the stenographer to the Manhattan coroners, had been fixed at $2,500, and there was no question about that. He sued for services rendered between January 1, 1898, and July 1,1899, in furnishing transcripts to the district attorney, and there was a stipulation which bound this court upon the facts. If the provisions of the charter then construed still remain the law, that case is controlling.

Before the charter took effect the Consolidation Act (§ 17 66, as amd. by Laws of 1895, chap. 816) provided for four coroners in the city and county of Hew York. By section 1767 of said act each of the coroners was to receive a yearly salary of $5,000. By chapter 732 of the: Laws of 1896, section 1768 of the act was amended so that the board of coroners might appoint a clerk at $3,500 a year, two assistant clerks at $1,500 a year, for each clerk and a skilled ' stenographer at a salary of $2,500 a year, and. six cents per folio for 'all transcripts made for the use of the district attorney’s office by direction of said board; and said salary and folio rate shall be provided for and paid to the said stenographer in the same manner as the clerk, of said, board of coroners is paid;” which was “a county charge, and payable as other courtty salaries are paid.”

By section,1570 of the Greater Hew York charter (Laws of 1897, chap. 378) it .was provided that thereafter four coroners should be elected in the borough of Manhattan, two in the borough of The Bronx, two in the borough of Brooklyn, three in the borough of Queens and two in the borough of Richmond. Section 1571 of said charter provided as follows: The coroners in each borough * * *, shall appoint a clerk who shall receive an annual salary to be fixed by the board of estimate and apportionment and the municipal assembly, and such and so many assistant clerks as shall be provided for in the annual estimate. They shall also appoint a stenographer in each borough whose duty it shall be to take accurate and full stenographic minutes and transcribe the same, of all proceedings and testimony taken before a jury in any Coroner’s Court held by any one of said coroners. * * * The salaries or other compensation of said coroners shall be fixed by the board of estimate and apportionment and the municipal assembly.’.’ Here was a provision for coroners and their subordinates in each/of the five boroughs of the city. So far. as the Manhattan coroners were concerned, their salaries and that of each of their subordinates had been theretofore fixed by statute law. The salary of all of .them in express language was by the charter left to be fixed by the board of estimate and apportionment and the municipal assembly, with the exception of the stenographers. This court held in the Balter case that section 1768 of the Consolidation Act still governed and that the stenographer to the Manhattan board was entitled to $2,500 and six cents a folio for transcripts. The provisions of the charter have been considerably changed Since then. , ' . ■

Section 1570- of the revised charter (Laws of 1901, chap. 466) provides that “four coroners shall hereafter.be. elected in the borough of Manhattan, two. in the borough of The Bronx, two in the borough of Brooklyn, two in the borough' of Queens and. one in the borough of Richmond.” . •

Section 1571 of said charter provides as follows: “ The coroners in • each borough shall have an office in said borough and shall appoint a clerk who shall receive an. annual salary to be fixed by the board of estimate and apportionment and the board of aider-men, and such ánd so many ássistant clerks as shall be provided for in the annual budget. - They shall also appoint a- stenographer in each borough .whose duty, it shall be to, take accurate and full stenographic- minutes and transcribe- the same,' -of all proceedings and testimony taken' before a jury in any Coroner’s Court, held by any'one of said coroners. * " ** The salaries or other compensation of said coroners shall be'fixed by the board of estimate and apportionment and the board of aldermen.” .

Section 97 of‘the Consolidation Act reads: “The’salaries of all officers, whose offices may be created by the common council for the purpose of giving effect. tó the provisions of this act,- shall,, subject to the other provisions of this act, be prescribed- by ordinance or resolution tó be passed by the common council and approved as hereinbefore provided for the approval of ordinances Or resolutions.” This court said in the Baiker case that “ section 56 (of the charter) appears to be a ré-énactment merely of section 97 of-the Consolidation Act.” But it seems to be something more. The language of the charter of 1897 was at the time of the facts under consideration in that case as follows: ' 56, The salaries of all officers whose offices may be created by the municipal assembly for the purpose of giving effect to the provisions of this act, shall,' subject to the other provisions of this act,, be prescribed by Ordinance or resolution. 'The municipal assembly shall have power, upon the recommendation of the board of estimate and apportionment, to fix the salary of any officer or person whose compensation is paid out of the city treasury, irrespective • of the amount fixed by this act, excépt that no change shall , be made in the. salary of an elected officer or head of .a department during the term for which he was elected or appointed.”

That seems to be a broad grant of power. I am inclined to think that “ any officer or person whose compensation is paid out of the city treasury ” is limited only by the words an elected 'officer or head of a department during the term for which he was elected or appointed;” that the words “irrespective of the amount fixed by this act ” are not words of limitation but were inserted for abundant caution as this section expressly changed the law as to salaries “fixed by this act” from the provisions of the Consolidation Act. There was a still further change in the' revised charter of 1901, which provides as follows: “ § 56, The salaries of all officers whose offices may be created by the board of aldermen for the purpose of, giving effect to the provisions of this act shall, subject to the other provisions of this act, be prescribed by ordinance or resolution. , It shall be the duty of the board of. aldermen, upon the recommendation of the board of estimate and apportionment, to fix the salary of every officer or person whose compensation is paid out of the city treasury, other than day laborers, and teachers, examiners and members of the supervising staff of the department of education, irrespective of the .amount fixed by this act, except that no change shall be made in the salary of an elected officer or 'head of a department during his tenure of office. Salaries need not-be uniform throughout the several boroughs. *■ * * All salaries as fixed on the first day of January,- nineteen hundred and two, shall continue in force ■ until fixed by the board of aldermen as in this section provided.”

On April 8, 1902, by chapter 435 of the Laws of 1902, the last sentence of this section was amended by adding the clause in italic as follows: “ All salaries as fixed on the first day of January, nineteen hundred and two, shall continue in force until fixed by the board of aldennen as in this section provided, except as. map be otherwise determined by the board of estimate and apportionment prior to the first day of May in the year nineteen himd/red and two, under the provisions of section ten hereof.” And on the same day, by chapter 436 of the Laws of 1902, the Legislature amended section 10 of the revised charter by adding the clause in italic to"' the following sentence: “Between January first and May first in the year nineteen hundred and two,, the board of estimate and apportionment shall have power from time to time to alter, modify and amend the budget for the year nineteen hundred and two, to change the .titles, terms and conditions of appropriations contained' therein; to add new appropriations and abolish any that may be found unnecessary; ■ and also wpon the recommendation of the mayor or- any borough president or head of any department, bureau, office, board or commission of the. city of New York, or of "any- of the counties-embraced therein, to. fix,salaries in a/ny of said offices,¿departments, bureaus, boards or commissions.”

■ Thislatter section was again -amended on May 5, 19.05, by chapter 373 of the Laws of 1905 to- take effect immediately, but no. change was made therein so far as the provisions applicable to this case, are concerned. Thé amendment of 1905 took effect ten days before the application for the writ of mandamus herein was made.

This seems to have been as broad a grant of power as human language could frame. On April 30, 1902, the board of estimate and apportionment, in accordance with the power conferred, upon the written recommendation of the coroners of the borough of The Bronx, under date of April 14, 1902, fixed the salary of their stenographer at $2,000, and he has been paid that amount ever since and has received the same, so far as appears, without complaint, up to the 1st day of March, 1905. 1 do not think that the petitioner was entitled to the relief granted, and the order must be reversed, with costs of the appeal, and the motion denied, with costs to appellant.

Patterson, Ingraham and Laughlin, JJ., concurred.

O’Brien, P. J. (concurring):

I concur in the result for the reason that I think the further change made in the revised charter of 1901, and the amendment by chapter 435 of the Laws of 1902, operated to change the law as it stood when this court considered the'question in Baker v. City of New York (56 App. Div. 350). Under these amendments, I think that the Legislature has- conferred upon the board of esti-. mate an(d apportionment- the power to fix the salary of stenogra- - phers upon -the written recommendation of the coroners of the borough of The Bronx.

Order reversed, with costs, and motion denied, with costs  