The opinion
Vann, J.
(dissenting). While cities of the second class commit immense power to their mayors, they still retain the common council but confine it to strictly legislative duties. From time out of mind the control of taxation and the appropriation tif public moneys has been the fundamental and exclusive duty of legislative bodies. Government is not free unless the power to tax belongs to the legislative department. The executive department spends the money raised by taxation, but the legislative department, which moré directly represents the people, determines how much is to be spent, and for what purposes. The power to expend and the power to appropriate are kept separate, for the union of the two is dangerous and may leave the people helpless. “ If the power over the public treasury, and that of imposing taxes, be left to the executive, there is an end to public liberty. * * * It is not only necessary for vigorous civil liberty that the legislature keep the purse-strings of the public treasury, but also that the same principle, be acted upon in all minor circles of the vast public fabric.” (Lieber’s Civil Liberty, 148, 149.)
According to the construction placed by the prevailing opinion upon the charters of four large cities of the state, the executive department has, substantial control of tlie sum to be raised by taxation for municipal purposes. The mayor controls the executive department, including the board of estimate and apportionment, for his own vote and that of two of his appointees, who are removable by him at will, constitute a majority of the votes in that board. The practical effect of this construction, therefore, is to confide to the will of one man the powers of the executive department, and the most
*561
important of all the- powers, which, according to the history of free government, belong to the legislative department. If the legislature intended to make such a radical departure from established methods of government, the presumption is that it would have expressed that intention in words so clear as not to admit of discussion. If there is any doubt as to the intention, it should be solved in favor of the people and against the exercise of arbitrary power. -If the question is fairly debatable, it should be settled in the interest, not of those who govern, but of those who pay the expense of government.
While the city budget is initiated by the board of estimate and apportionment, it is actually made by the common council. The duty of the former, as its name indicates, is not to make appropriations, but estimates. Its members are required to
“
make an estimate of the several sums of money which they deem necessary to be raised by tax to pay the expenses of conducting the business of the city in each department and office thereof, * * * ” (L. 1899, ch. 581, §§7, 96.) This estimate is not final, for if it were, it would constitute the tax budget. What is the further duty of .the board
%
The same section provides by the next sentence that
“
after it has made such estimate, it shall submit it in writing with such reasons for it in detail as it may have to give, to the common council which shall convene and consider such estimate.” Here the duty of the board ends and that of the common council begins. The board has simply made an itemized statement of the sums which in its judgment will be needed to run the city government for the fiscal year, and has - added its reasons therefor. Tliis estimate is in the nature of information, advice and recommendation, for the board must give its reasons in detail in its report to the common council. In one respect it is final, for it places a limit upon the action of the common council, which cannot “ increase any item in such estimate.” Can it diminish an item ? If not, what can it do
%
Is it an echo of tiie executive board, or a legislative body clothed with control over appropriations ? The charter answers these questions by providing, in connection with the provisions quoted
*562
above, that the common council “ shall convene and consider such estimate * * * hear any taxpayer who wishes to be heard in reference thereto, and after such hearing it may adopt such estimate * -x" * or diminish or reject any item therein contained, except such as relate to the city debt, and adopt the estimate as thus amended, but it shall not increase any item for any department, office or purpose.” The estimate, as adopted with or without amendments, becomes the tax budget, and “ the several sums * * * so adopted * * * become appropriated for the ” purposes indicated and for. those purposes only.
This seems plain. The board recommends and the common council acts. The executive branch estimates and the legislative branch reviews, amends and adopts. Its freedom of action is absolute with two exceptions; it cannot increase any item and it cannot diminish the item relating to the city debt. By express terms it is given power to reject any item entirely, or to diminish any item, subject to the single limitation designed to protect the credit of the city. If it cannot diminish the salary list, why was not this made an express exception also ? Does not the mention of one item imply the exclusion of all others, in accordance'with the familiar rule of
expressio unius, exolusio alterius ?
But it is said that these clear provisions of section 96 are modified by section 98, which provides that the board “ has authority to fix the salaries or compensation of all city officers and employees, except as otherwise provided in this act,” and that “ the salary or compensation of every officer and employee shall be thus fixed before his election or appointment.” (L-1898, cli. 182, § 98.) It is claimed that the effect of this section is to place the salary list of officers and the compensation of employees absolutely beyond the control of the common council and to confide it wholly to the board of estimate, with no limitation in the charter upon its power. What reason is there for such a discrimination ? It does not aid the taxpayer, but the officeholder, for the common council can increase no item. Why should the legislature surround the salaries of
*563
city officials with the same protection as the city debt, without including any other subject of expenditure ? Are salaries more important than safe bridges or clean streets ?. If restraint is to be placed upon any class of expenditures, what class needs it more than the salaries of the political favorites of the executive department ? What object is there in withholding from the consideration of the city legislature the subject involving the largest expenditure, the Avidest latitude of judgment and the greatest danger of abuse ? Why should the appropriations Avhicli are of the greatest benefit to the people, such as those relating to public improvements, the care of streets and the like, be referred to the common council Avith poAver, and the salary list, which mainly benefits officeholders, be taken away from the members of the city legislature, elected by the people and in close touch with them, and placed under the control of the mayor and his board ? Is it not a violation of legislative precedents to permit the appointing poAver to unalterably fix the compensation of its oavii appointees? Did the «legislature intend that if the board of estimate fixed the compensation of the pound-master at $10,000 a year the common council could not reduce it ? Did it mean that the city legislature could diminish the sum needed for a ubav fire engine, but not the compensation of the driver ? Suppose they gave a bookkeeper in the comptroller’s office a larger salary than was fixed by the legislature for the comptroller himself or a messenger or elevator boy more than is paid to the governor of the state? Or suppose they fixed a salary list that would bankrupt the city except for the two percentum clause of the Constitution ? (Art. 8, § 10.) It is not an answer to say that no board of estimate would be guilty of such outrages, because the history of municipal government sIioaa's that cities have been despoiled in violation of laAV, while spoliation in this form avouM have the sanction of laAv. If, as is said to be the case, it costs one second class city fifty cents to spend a dollar and another a dollar to spend fifty cents at the ratio borne by salaries to all other expenditures, it illustrates what boards of
*564
estimate are capable of doing, and shows the necessity of a rigid construction of their powers. A construction leading to an absurd, unjust and unreasonable result does not ordinarily carry out the legislative will and should be avoided unless no other is possible. There should be a liberal construction in the ■ interest of economy and a strict construction against extravagance.
These observations bring me to the ultimate question which must control our' decision ; is the power to fix salaries conferred by section 98, subject to the power of the common council to reduce them conferred by section 9G ? Either section 96 is subject to section 98 or the latter.is subject to the former. Section 96, when read by itself, does not exclude the salary list, either expressly or impliedly, while section 98 confers authority to fix salaries, “ except as otherwise provided by this act.” To what does this exception relate ? It may relate exclusively to the salaries fixed by the legislature, such as those of the mayor, comptroller, etc., or it may relate also to the power of the common council to “ diminish * * * any item ” as conferred by section 96. If either construction is possible that should be adopted which is the more reasonable, for that is presumed to better express the legislative will. I think the construction which makes section 98 subordinate is the true one, because it harmonizes the apparent conflict between the two sections, tends to protect the taxpayer from the most dangerous form of extravagance and places the taxing power in the legislative department where it belongs. It is confirmed by the right of the taxpayer to be heard by the council, but not by the board. Any other construction would not only vest practically in one man an extraordinary power, hitherto unknown to our form of government, but would give no force whatever to the general power to “diminish” conferred by section 96, so far as the largest subject of municipal expense is concerned. If the board of estimate alone can irrevocably fix the salary list, it can double it or quadruple it or multiply it indefinitely, subject only to the restraint of the Consti
*565
tution, to the oppression of the taxpayer, and yet with no increase of benefit to the city. The common council is expressly authorized to “ diminish any item ” in the estimate of the board. Item does not mean aggregate, but one of the several particulars going to make up an aggregate. Every salary is an item and every salary may be diminished by the common council, as the salary of the plaintiff, in my opinion, was lawfully diminished in the case under consideration.
For these reasons I dissent from the judgment about to be pronounced, and vote in favor of affirming the judgment of the Appellate Division.
Bartlett, Haight and Cullen, JJ., concur with Martin, J.; O’Brien and Landón, JJ., concur with Vann, J.
Judgment accordingly.