sence and it is estopped from insisting or claiming that the plaintiff was not in its employment. If it was considered that his duties were at an end, some steps should have been taken and he notified that such was the intention of the board.

When the salary of a public officer is fixed, such officer is entitled to his salary and it cannot be taken away except for good and sufficient cause. While sickness in some cases may furnish sufficient reason for the removal of such officer, yet where the evidence shows that his absence on account of the same has been permitted, no valid reason exists why he should not be entitled to compensation until some action is taken on the subject. People ex rel. Ryan v. French, 14 W'kly Dig. 173. The resolution of the auditing committee, so far as it purposed to affect and date back the plaintiff's removal to the first day of May, could have no force. It could not impair the leave of absence which had previously been granted and which was subsequently ratified by the action of the board. The rights of the plaintiff which had accrued prior to the resolution, could not be affected thereby, it was retrospective in its character and operation and without any validity whatever.

We think that the finding of the referee, that the plaintiff was not in the employment of the defendant, was erroneous and cannot be upheld. The claim of the respondent's counsel that the resolution of the finance committee was not sufficient to relieve plaintiff from service cannot be sustained. There is nothing to show a want of authority in such committee, and the presumption is that it was authorized, in view of all the facts, to grant him leave of absence. The subsequent action in auditing the plaintiff's salary and the failure of the board to take any action discharging him, until the resolution of the finance committee in September, to which reference has been had, evinces that the leave of absence was granted by the proper authority. There is no ground for claiming that the allowance of the plaintiff's claim was in the nature of a pension or a gratuity and without the sanction of law. A discretionary power must exist in a board of public officers to determine when and to what extent persons in their employment should be excused by reason of sickness or temporary disability, and unless it is clear that such discretion has been abused it should not be overruled and disregarded. In the case of People ex rel. Burnet v. Jackson, 85 N. Y. 541, the board allowed payment to the estate of a deceased teacher, and the question involved was entirely of a different character from the one here presented. The principle

there involved has no application to the case at bar, where the officer was recognized as being in the employment of the board. The case now presented does not involve the question as to the power to grant gratuities as additional compensation for services rendered which are not authorized by law.

We think the defendant was clearly liable for the payment of the plaintiff's claim, and the judgment should be reversed, a new trial granted, costs to abide the event.

All concur, except ANDREWS and EARL, JJ., dissenting.

Judgment reversed.

See also Dolan v. Mayor, 68 N. Y. 274 and Nichols v. MacLean, 101 N. Y. 526, supra.

III. CHANGE OF COMPENSATION.

KEHN V. STATE OF NEW YORK.

Court of Appeals of New York. October, 1883.
93 N. Y. 291.

RAPALLO, J. The uncontroverted evidence shows that on the 1st of May, 1880, the appellant was employed by Mr. Hyde, superintendent of the old capitol, as fireman therein, and continued to serve in that capacity from the time of his employment until the filing of his claim before the board of audit, which was in November or December, 1881.

He claims pay at the rate of $3 per day during that period by virtue of a provision in the general appropriation acts of 1875, which reads as follows: "And the compensation of the men employed as firemen in the capitol is hereby fixed at $3 per day to cach of them. Such salaries shall be paid upon the certificate of the keeper of the capitol."

The appellant was paid at the rate thus prescribed by law from the time of his employment up to the 24th of May, 1880, when the superintendent claiming to act under the direction of the comptroller, refused to allow him more than $1.50 per day during the summer months, and he made this reduction for the periods from May 24, 1880, to September 30, 1880, from May 21, 1881, to June 30, 1881. The appellant received the reduced pay during these periods, but there is no evidence that he ever agreed to the re

duction. From June 30, 1881, to September 30, 1881, he declined to receive the reduced pay, and has been paid nothing. The present claim is for the sums necessary to make up his full pay of $3 per day up to September 30, 1881.

The board of audit rejected the claim, and on appeal to the Supreme Court, the General Term sustained the decision on two grounds. First, that the appellant was hired and agreed to work for $1.50 per day, and was not employed as fireman. Second, that, if otherwise, the rate fixed by statute as fireman's pay might be modified and reduced by the agreement of the parties.

The first ground is, we think, wholly untenable under the evidence.

As to the second ground upon which the General Term place their decision, we think it comes within the decision of this court in People ex rel. Satterlee v. Board of Police, 75 N. Y. 38, where it was held that the board of police commissioners could not reduce the amount fixed by law as the salary of a police surgeon and procure persons to act at a less sum than the statute prescribed. To the same effect is Goldborough v. U. S., Taney's C. C. Decisions 80, In that case it was further held that it was immaterial whether the person whose salary is fixed by law is or is not an officer, so long as he is specified in the law fixing his salary.

The present case however is stronger than either of those cited. At the time appellant entered into the service his pay was fixed by law and there is no evidence that he ever consented to a change. It was reduced by the superintendent and for a portion of the time the appellant took the reduced pay but that does not estop him from claiming his full pay if he was legally entitled to it. Montague's Adm'r v. Massey, 13 Reporter 701.

We think the appellant was entitled to a salary of $3 per day so long as he was retained as fireman and that his claim should have been allowed.

The judgments of the General Term and of the board of audit should, therefore, be reversed and judgment rendered in favor of the appellant for the amount of his claim, with costs.

All concur, except EARL, J., not voting.

Judgment accordingly.

The same rule is applied in case the compensation consists of fees. Hewitt v. White, 78 Mich. 117.

UNITED STATES V. LANGSTON.

Supreme Court of the United States. May, 1886.

118 U. S. 389.

This was a petition in the Court of Claims to recover an unpaid balance of salary claimed to be due defendant in error as minister resident at Hayti. The defence was that Congress, by appropriating a lesser sum, had indicated its purpose to reduce the salary. The case is stated in the opinion of the court. Judgment below in favor of the plaintiff from which the defendant appealed. Mr. Justice HARLAN delivered the opinion of the court.

From September 28, 1877, until July 24, 1885, the claimant, John M. Langston, held the office of Minister Resident and Consul General of the United States at the Republic of Hayti. At the time he entered upon the discharge of his duties it was provided by statute as follows: "There shall be a diplomatic representative of the United States to each of the Republics of Hayti and Liberia, who shall be appointed by the President, by and with the advice and consent of the Senate, and shall be accredited as Minister Resident and Consul General. The representative at Hayti shall be entitled to a salary of $7,500 a year, and the representative at Liberia to a salary not exceeding $4,000 a year. Rev. Stat. § 1683. The sum of $7,500 was annually appropriated for the salary of the minister to Hayti, from the creation of the office until the year 1883.

In the Diplomatic and Consular Appropriation Act of July 1, 1882, certain sums were appropriated "for the service of the fiscal year ending June 30, 1883, out of any money in the treasury, not otherwise appropriated, for the object therein expressed," one of them being "for ministers resident and consuls general to Liberia, Hayti, Switzerland, Denmark, and Portugal, at $5,000 each, $25,000." 22 Stat. 128. The same act provided that "hereafter the Secretary of State shall, in the estimate of the annual expenditures of diplomatic and consular service, estimate for the entire amount required for its support, including all commercial agents, and other officers, whether paid by fees or otherwise, specifying the compensation to be allowed or deemed advisable in each individual case." 22 Stat. 133. It is stated in the brief of the Attorney General that the Secretary of State made a specific estimate for the salary of the minister resident and consul general to Hayti for the fiscal year

commencing July 1, 1883 and 1884, and that that estimate was $5000 in each report. For each of the fiscal years ending June 30, 1884, and June 30, 1885, the appropriation for the minister resident and consul general at Hayti was $5000, and in the same language as that employed in reference to that officer in the act for the fiscal year ending June 30, 1883.

The claimant was paid at the rate of $7500 a year up to and including June 30, 1882, and for the balance of his term at the rate only of $5000 a year. He brought this suit to recover the difference between those amounts for the period from June 30, 1882, to July 24, 1885. His claim was sustained in the court below, and judgment was rendered in his behalf for $7666.66.

This case is distinguishable from United States v. Fisher, 109 U. S. 143, 146, and United States v. Mitchell, 109 U. S. 146, 149. In Fisher's case it was held that the clause in the Revised Statutes, fixing the salary of the Chief Justice and associate justice of Wyoming at $3,000 per annum, was suspended by the provision in each of the appropriation acts, for the legislative, executive, and judicial expenses of the government for the fiscal year ending June 30, 1879 and 1880, which declared that the sum therein specifiedamong which was $2,600 each to the governor, chief justice, and two associate justices of Wyoming-were appropriated "in full compensation" for the service of those years. The claim of Fisher for compensation, on the basis fixed by the Revised Statutes, was consequently rejected. This court said: "We cannot adopt the view of the appellee, unless we eliminate from the statutes the words "in full compensation,' which Congress, abandoning the long used form of the appropriation acts, has ex industria inserted. Our duty is to give them effect. When Congress has said that the sum appropriated shall be in full compensation of the services of the appellee, we cannot say that it shall not be in full compensation, and allow him a greater sum.

In Mitchell's case, the claim was for compensation as an Indian interpreter under §§ 2070 and 2076 of the Revised Statutes, the first one of which declared that interpreters of a certain class shall be paid $400 a year each, and by the second one of which it was provided that the several compensations prescribed "shall be in full of all emoluments and allowances whatsoever." During the period for which Mitchell claimed compensation at that rate, he received pay at the rate of $300 per annum, under acts appropriating various sums for interpreters, including seven interpreters for