(91 Hun, 21.)

#### GILLIGAN v. TOWN OF WATERFORD.

(Supreme Court, General Term, Third Department.

December 3, 1895.)

Office and Officer—Compensation—Regulation by Statute.

Plaintiff was appointed tender of a bridge constructed under Laws 1888, c. 320, which provided that the bridge should be operated at the expense of defendant town, under the direction of the superintendent of public works, tout did not authorize the town board to fix the compensation of the tender. At the time of plaintiff’s appointment, Laws 1889, c. 380, providing that the wages of persons employed by the state, otherwise than day laborers, shall be at the rate of not less than 25 cents per hour, had taken effect. The superintendent of public works wrote to the town supervisor that the bridge tender was to be appointed by the superintendent of public works, and the town was to fix his compensation, whereupon the town board fixed the compensation at less than the statutory amount, tout it did not appear that plaintiff had notice of the correspondence between the superintendent and the supervisor. *Held,*that plaintiff was entitled to recover from the town the difference between the statutory .amount and the compensation fixed by the town board, though he received from month to month the amount fixed by the town board. Larkin v. "Village of Brockport, 87 Hun, 573, 34 N. Y. Supp. 551, distinguished.

Appeal from Saratoga county court.

Action by Edward Gilligan against the town of Waterford to recover money alleged to be due plaintiff for services rendered by plaintiff as bridge tender. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, made on the minutes, plaintiff appeals.

Reversed.

Argued before MAYHAM, P. J., and PUTMAN and HERRICK, JJ.

Francis A. Martin (I. H. Maynard, of counsel), for appellant.

J. W. Atkinson, for respondent.

MAYHAM, P. J.

On the 11th of July, 1889, the plaintiff was employed or appointed by the superintendent of public works of the state as bridge tender, to operate a hoist or lift bridge across the ■Champlain Canal, where it intersects and crosses Broad street, in the town of Waterford. He served in that capacity from the 20th of July, 1889, to the 1st of December of that year,—a period of 1,596 hours. This hoist or lift bridge was constructed by the state under the direction of the superintendent of public works, pursuant to chapter 320 of the Laws of 1888.

Section 1 of that act provides as follows:

> “The superintendent of public works is hereby authorized to construct or cause *to*be constructed and maintained, at the expense of the state, a lift bridge over *89the Champlain Canal, at Broad street in the village and town of Waterford, Saratoga county. Said bridge shall, when constructed, be operated at the expense of the town of Waterford, under the direction of the superintendent of public works.”

The balance of the section limits the amount of expenditure, and describes the method of letting the contract, for the construction of the bridge.

In pursuance of that act, the state' constructed a bridge at the point indicated, which was completed before the 20th of July, 1889.

Chapter 380 of the Laws of 1889 took effect on the 6th day of July of that year.

By section 1 of that act it is provided as follows:

> “From and after the passing of this act, the wages of day laborers employed by the state, or any officer thereof shall not be less than $2.00 per day, and for all such employed otherwise than day laborers, at the rate of not less than twenty-five cents per hour.”

On the 11th of July, 1889, the superintendent of public works addressed a communication in writing to the supervisor of the town of Waterford as follows:

> “John E. Gage. Esq., Supervisor of Waterford, N. Y.—Dear Sir: This is to, certify that under the provisions of law, that I select the tender of Waterford lift bridge, while the town of Waterford fixes the compensation for such services.

> “Very truly yours, James Shanahan,

> “Superintendent of Public Works.”

On the 12th of July, 1889, the supervisor called a meeting of the town board of the town of Waterford, at which the following resolution was adopted:

> “Resolved, that the sum of $50.00 per month be paid for each man employed for operating the lift bridge for the season of 1889, and that the number- of men be limited to two.”

The case does not disclose that the plaintiff had any notice or knowledge of the correspondence between Shanahan and the supervisor, to which we have referred, or of the adoption of resolution by the town board. The persons designated or selected by the superintendent of public works as bridge tender for this bridge were the plaintiff, Edward G-illigan, and one Mr. Clark. On the 23d day of August, the plaintiff was paid by the town $50 on account of his services as bridge tender, and, at the time of receiving the same, made no claim for additional compensation for his services. On the 26th of September, he was also paid $50, and made no additional claim. And, on the 3d of December, he was paid $66.66, being pay for 1¿ month, at the rate of $50 per month. The testimony of the plaintiff shows that he was appointed by Shanahan, superintendent of public works, to the position of bridge tender, and that he never had any understanding or agreement with the town board as to his compensation. The case shows that the plaintiff never made any claim for more than $50 per month compensation at the time of the performance of the service; that he had received in all $218.38; and that his compensation, if fixed at the rate of $2 per day for a day of 8 hours, or 25 cents per hour for the whole number of hours, *90would aggregate $398, leaving due him upon that basis $180.66, which amount he claimed to recover in this action.

The jury, upon the evidence, under the charge of the judge, rendered a verdict for the defendant; and the plaintiff appeals from the judgment entered upon that verdict. After the rendition of the verdict, the plaintiff moved to set it aside, and for a new trial, upon the minutes of the judge, on the ground that the verdict was against the weight of evidence, and contrary to law, and also upon the exceptions taken at the trial. The motion was entertained and denied, to which the plaintiff excepted.

If, under the circumstances of this case, the town board had authority to fix the compensation of the plaintiff at a rate other than that regulated by statute, we think the jury might, under the evidence in this case, have reached a conclusion that there was an implied contract on the part of the plaintiff to accept the sum of $50 per month; and upon his acceptance of the same, in the manner indicated by the evidence in this case, they might properly have reached a conclusion that the town had paid the plaintiff the amount regulated by such implied contract. But, under the circumstances of this case, and the statute governing the same, we are of the opinion that neither the superintendent of public works nor the authorities of the town had any power to fix upon a different rate of compensation than that regulated by chapter 320 of the Laws of 1888. It is true that the act was repealed by chapter 218 of the Laws of 1890, but that repeal in no way affects the rights of laborers employed by the state, or any officer thereof, during the period for which chapter 380 of the Laws of 1889 remained in force. The appointment or employment in this case by the superintendent of public works was in the proper exercise of the power conferred upon him of operating this lift bridge, which, by the express provisions of chapter 320 of the Laws of 1888, was to be operated under the direction of the superintendent of public works. The appointment or employment of the plaintiff came clearly within the duties imposed upon the superintendent of public works under this act, and the town or the town board had no power, authority, or volition in the-selection of such appointee. Nor does it appear from that act that the town board had any power or authority to fix the compensation of such appointee or employé. The only power or authority conferred upon the town, or duty imposed upon it, was to pay the expense of operating such bridge. This contract went into effect after the enactment of chapter 380 of the Laws of 1889, and was subject to the provisions of that act. All the labor for which this action is brought was performed before its repeal, and must, we think, be compensated for under its provisions. If the plaintiff rendered the services for which this action is brought by the day, his compensation would be $2 for every eight hours’ service performed iby him, under section 1 of chapter 385 of the Laws of 1870, making eight hours a day’s work; or, if rendered by the hour, he would be entitled to 25 cents for each hour actually employed. And there seems to be no controversy in the evidence as to the length of time the plaintiff served under his employment. *91We think that, upon authority, the questions presented on this case have been fully settled.

In the case of People v. Board of Police, 12 Hun, 653, the question was whether the board of police commissioners could fix the salary of a police surgeon by resolution at a less rate than that fixed for such salary by statute. Even where the police surgeon had accepted the position, and had drawn his salary at the rate fixed by the resolution for two years, at the end of which period he claimed the salary fixed by law, and demanded compensation at that rate, he was held to be entitled thereto. In that case the court held that the salary fixed by law was his rate of compensation, and Miller, J., in delivering the opinion of the court of appeals, uses this language:

> “As the statute gave the salary, I think fixing the amount at a less rate by resolution could not make it less than the statute declared. There is no principle upon which an individual appointed or elected to an official position can be compelled to take less than the salary fixed by law. The acceptance and discharge of the duties of the office after appointment is not a waiver of the statutory provisions fixing the salary therefor, and does not establish a binding contract to perform the duties of the office for the sum named. The law does not recognize the principle that a board of officers can reduce the amount fixed by law for salaried officers, and procure officials to act, at a less sum than the statute provides, or that such officials can make a binding contract to that effect. The doctrine of waiver has no application to such a case, and cannot be invoked in aid of the respondent.” 75 N. Y. 42.

The correctness of the rule laid down in the case cited does not seem to have been questioned, and is manifestly sound upon principle.

We have been referred by the learned counsel for the respondent tp Larkin v. Village of Brockport, 81 Hun, 364, 30 N. Y. Supp. 973, and the same case as reported in 87 Hun, 573, 34 N. Y. Supp. 551. From an examination of that case, we are clearly of the opinion that it has no direct application to the case at bar. That case, in some of its aspects, was similar to this, in that it was for services of a bridge tender of a bridge across the Erie Canal, which had been constructed by the state, the compensation for tending which was charged upon the village of Brockport by the act under which it was constructed. The amount of compensation was fixed by a resolution of the village trustees on the 5th of June, 1888, and the services were rendered, most of them, under the express contract between the plaintiff and the village trustees to perform the services at the rate fixed by the resolution. That contract was in force at the time of the passage of chapter 380 of the Laws of 1889, and it was held, in effect, that the passage of that act did not affect existing contracts. Ho such question arises in this case.

In Clark v. State, 142 N. Y. 101, 36 N. E. 817, it was held that the legislature has power to pass general laws regulating the compensation of laborers employed by the state, or by any officer under its authority, where the act disturbs no vested right; and that chapter 380 of the Laws of 1889, which took effect in June of that year, regulating the wages of day laborers employed by the state, or any officer thereof, was constitutional; and that the compensation of a laborer, if so fixed by statute, cannot be reduced by a state officer *92under whom the laborers are employed, and the fact that the laborer takes for a time a reduced compensation does not estop him from subsequently claiming the residue.

It will be admitted that the compensation in this case was not fixed by the state officer; but it can hardly be successfully maintained that the limitation fixed by that act did not apply to all officers or individuals appointed by a state officer. And, as we have seen that the operation of this bridge was a part of the duty of the superintendent of public works, the appointment of the laborers to operate the same was necessarily a duty imposed upon him, and was, in this instance, performed by him, and the employés were therefore employés of a state officer, within the wording of the provision of chapter 380 of the Laws of 1889. That being so, the town board had no power or authority to fix the compensation of such employés at a price less than that specified in that chapter, and it must, we think, be held that the compensation of these bridge tenders comes clearly within the provisions of that law. It is no part of the duty of the court to determine whether that provision of law was wise or unwise. It is enough to know that it was an act of the legislature, and that, in enacting it, the legislature acted strictly within its constitutional power.

We think, therefore, that the learned trial judge erred in refusing to hold, as requested, that the plaintiff, as matter of law, was entitled to the statutory compensation.

The payment of the wages of this plaintiff at the rate fixed by statute was charged as a duty upon the town of Waterford, and that duty, when the town fails in its performance, may, we think, be enforced by action.

In People v. Mayor, etc., of City of New York, 25 Wend. 680, it was held that the legislature had power to impose upon the town, in its corporate character, the obligation to pay for the services rendered within its territory, and directly for the benefit of its inhabitants, and the court used in that case this language:'

> “Here is a legal duty enjoined by competent authority, which the corporation are bound to discharge. It is as binding upon them as if entered into under their corporate seal. Full consideration has been rendered in the services of the officer for the liability thus imposed. An action on the case, or assumpsit, will lie for a neglect of corporate duty.”

The same effect is Canniff v. Mayor, etc., 4 E. D. Smith, 437; Federgreen v. Town of Fallsburgh, 25 Hun, 153.

On the whole case, we think the plaintiff was entitled to recover, and that the judgment must be reversed, and a new trial ordered in the county court; costs to abide the event. All concur.