Summary
In Hilton v. Cram (supra) where it was sought to recover damages under this statute for a reduction in salary calculated to bring about a resignation, we by analogy and upon grounds of public policy applied the rule of the cases last cited and held that before damages, which would ordinarily and mainly be loss of salary, could be recovered, the plaintiff must resort to his legal remedy to obtain an adjudication in his favor upon the lawfulness of the act or action of which he complains.
Summary of this case from Bean v. ClausenOpinion
March 23, 1906.
Louis Sturcke, for the appellant.
W.B. Crowell, for the respondents.
The appellant is an honorably discharged soldier of the Union army. He was employed in the dock department of the city of New York since 1890 as a transitman. On the 11th day of March, 1898, he was receiving a salary of $150 per month, which the defendants, constituting the board of docks, on that day reduced to $100 per month. The plaintiff alleges that this reduction was made with a view to bringing about his resignation, and he brings this action for damages under section 1 of chapter 312 of the Laws of 1884, as amended by chapter 821 of the Laws of 1896, which has been since revised in section 20 of the Civil Service Law (Laws of 1899, chap. 370, as amd. by Laws of 1902, chap. 270), which, so far as material to this appeal, provides as follows: "And no person holding a position by appointment or employment in the State of New York or of the several cities, counties, towns or villages thereof and receiving a salary or per diem pay from the State or from any of the several cities, counties, towns or villages thereof, who is an honorably discharged soldier, sailor or marine, having served as such in the Union army or navy during the War of the Rebellion, and who shall not have served in the Confederate army or navy, shall be removed from such position or employment except for incompetency or misconduct shown, after a hearing upon due notice, upon the charge made, and with the right to such employe or appointee to a review by writ of certiorari; a refusal to allow the preference provided for in this act to any honorably discharged Union soldier, sailor or marine, or a reduction of his compensation intended to bring about a resignation, shall be deemed a misdemeanor, and such honorably discharged soldier, sailor, or marine shall have a right of action therefor in any court of competent jurisdiction for damages, and also a remedy by mandamus for righting the wrong."
The motion for dismissal was made upon two grounds: (1) That the action was barred by the three years' Statute of Limitations prescribed in subdivision 3 of section 383 of the Code of Civil Procedure; and (2) that the statute purporting to give the cause of action was unconstitutional. The court placed the dismissal upon the former ground; but if either ground was tenable, the judgment must be affirmed.
The question as to whether the action is barred by the Statute of Limitations depends upon whether it is governed by subdivision 3 of section 383, or subdivision 2 of section 382 of the Code of Civil Procedure. The former prescribes a limitation of three years for "an action upon a statute for a penalty or forfeiture where the action is given to the person aggrieved, or to that person and the people of the State, except where the statute imposing it prescribes a different limitation;" and the latter prescribes a limitation of six years for "an action to recover upon a liability created by statute, except a penalty or forfeiture." Now it is very clear that this is a cause of action "to recover upon a liability created by statute." The question, therefore, on this branch of the case narrows to the inquiry whether it is a cause of action for a "penalty or forfeiture" within the meaning of those terms as employed in these provisions of the Code. Neither the word "penalty" nor "forfeiture" is used in the statute giving the cause of action, but that, while entitled to some importance, is not controlling. Ordinarily, the amount of a statutory penalty or forfeiture is fixed arbitrarily and is prescribed as punishment and has no relation to the damages sustained by the party who receives the benefit of the recovery; but this is not always the case and, therefore, it is not controlling. Here the recovery authorized by the statute is the damages sustained by the aggrieved party for the wrong. The damages must necessarily be limited to compensation to the party whose rights have been violated. But that fact alone is not decisive of the question concerning the Statute of Limitations. In the view we take of the case, however, we deem it unnecessary to decide the question as to which Statute of Limitations would be applicable. For we are of opinion that no cause of action for damages has accrued to the plaintiff. The plaintiff has not resorted to his remedy by mandamus to compel the defendants as such commissioners to rescind the resolution reducing his salary or to pass another restoring it. He stands upon the broad proposition that he may acquiesce in the reduction of his salary or resign and wait not merely three years, but until the last day of the sixth year, and then bring an action against the public officials individually and recover from them individually the difference between the salary as reduced and as it stood before reduction, not only for the intervening time, but for an indefinite time in the future, and such manifestly are the possibilities of his right of recovery if his contention that it is not necessary to first resort to mandamus prevails. It is evident that the Legislature intended to give two remedies in every case. It follows, therefore, that the Legislature did not intend to authorize a recovery of damages against public officials individually, except in those cases where there was a remedy by mandamus as well, for the two remedies are expressly given. If the plaintiff had resorted to mandamus for a rescission of the resolution reducing his salary, or for the adoption of a resolution restoring it, and were successful, it is quite likely that there would remain damages either in loss of salary during the intervening period, or in costs or expenses of litigation beyond the recovery therein. Those damages would be certain and capable of ascertainment, and with a recovery limited to such damages and the prior restoration of salary the employee would be fully indemnified for all loss. The view that the employee may acquiesce in the reduction and remain in the service, or may resign, and in either case, after waiting until just before the expiration of six years, bring an action to mulct the officials personally in the damages consisting of the difference in salary, not only for the intervening time, but for such time in the future as the jury might believe he would be able otherwise to hold the position, would bring about confusion in the public service and result in the award of damages based upon pure speculation. Such a ruling would be against public policy, for it would prevent public officials performing their duty to their constituents in reducing salaries where they ought to be reduced, lest at some time during the succeeding six years an action might be brought against them individually by the employees affected, and an effort made to convince the jury, which might be successful, that the reduction in salary was made with a view to compelling the employee to resign.
For these reasons, therefore, I think the judgment was right and should be affirmed.
O'BRIEN, P.J., INGRAHAM, McLAUGHLIN and HOUGHTON, JJ., concurred.
Judgment affirmed, with costs. Order filed.