PEOPLE EX REL. PARDEE
COGGEY, COMMISSIONER OF CORRECTIONS.
Appeal from Special Term, New York County.
Mandamus by the People, on the relation of Mary A. Pardee, against John V. Coggey, as Commissioner of Corrections of the City of New York. From an order denying a peremptory writ, relator appeals. Affirmed.
[117 N.Y.S. 66] C. E. Hill and George M. Curtis, for appellant.
Theodore Connoly, for respondent.
Argued before INGRAHAM, LAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.
The application was made upon the affidavit of the relator, stating that she was one of the matrons attached to the Harlem Prison, in the city and county of New York, having been [117 N.Y.S. 67] appointed on the 5th day of July, 1893, by the commissioner of charities and corrections of the city of New York, and had served continuously since that time as such matron; that the relator was receiving a salary of about $400 a year, which salary she has received for the past 15 years; that by the grading of matrons, as provided for by section 716 of the charter of the city of New York (as added to Laws 1901, p. 32, c. 466, by Laws 1903, p. 1175, c. 511, § 1), the salary of the relator would be increased; and that she served a demand upon the commissioner of corrections that he make gradation and classification of matrons as required by this provision of the charter-and upon that affidavit the relator obtained an order to show cause why a peremptory writ of mandamus should not issue requiring the commissioner to make such gradation and classification as required by said section. In reply to this application, the affidavit of the commissioner of corrections was submitted, which stated that the board of estimate and apportionment had fixed the salary of the relator at $400 per year, which amount has been paid to her; that on July 16, 1903, the question as to whether this section of the charter was mandatory was submitted to the corporation counsel, who advised the defendant that he was justified in exercising his judgment in regard to putting in operation the provision of this section, leaving it to the court to decide, if necessary, whether the section was mandatory; and that, relying upon that opinion, he had taken no action in the matter of carrying the provisions of this section into effect. The court at Special Term denied the motion, upon the ground that there was nothing in the statute under consideration which indicated that the power conferred upon the respondent was other than permissive and discretionary; and from the order denying the motion the relator appeals.
By the amendment of the charter (chapter 511, p. 1174, of the Laws of 1903) three sections were added, which provided for the appointment of women who should be known as matrons. By section 715 the matrons were to-
" have charge of and supervision over all women prisoners and all parts of their respective prisons occupied by such women prisoners, or such parts thereof as may be designated to come under their control by the officer in command thereof. At least one matron shall be on duty in each prison as long as any woman prisoner is detained therein. Matrons shall also search all women visiting any part of such prisons, except as otherwise ordered by the commissioner. No officer other than the matron shall be admitted to the corridor or cells of the women prisoners without the consent of the officer in charge of said prison."
And the commissioner of corrections was authorized to appoint for each prison, jail, workhouse, or place of detention now or thereafter under his jurisdiction, where women prisoners were detained, at least one woman, and such other women as in his judgment might be necessary, who should be known as " matrons." This appears to be the first express provision authorizing the appointment of women to this position. The act was mandatory, in so far as it required that women prisoners should be in charge of and supervised by matrons, one of whom should be on duty in each prison as long as any woman [117 N.Y.S. 68] prisoner was detained therein, and it was the duty of the commissioner to provide such matrons, so that the act could be complied with. It was plainly the object of this provision that thereafter women prisoners should be in charge of women jailers or attendants, who were to be known as " matrons."
Section 716 of the charter then provides:
" The matrons may be graded into three grades according to their years of service in the department of correction. All matrons who shall have served more than five years may be members of the first grade and shall receive not less than nine hundred dollars as annual pay or compensation; all matrons who shall have served not more than five nor less than three years may be members of the second grade, and shall receive not less than seven hundred and fifty dollars as annual pay or compensation; all matrons who shall have served less than three years may be members of the third grade and shall receive not less than six hundred dollars as annual pay or compensation; the pay or compensation above provided shall be payable monthly to each person entitled thereto."
The permissive word " may" is used throughout this section, rather than the more mandatory " shall" ; but the section contains the only provision for the compensation of matrons whose appointment was provided for by section 915 of the charter, and the method of grading is evidently prescribed in order to fix the amount of compensation. The section applies to matrons generally, and is not confined to those who may be appointed by the commissioner under the authority granted to him by section 715. For the first time, as would appear, these matrons, whose duties were defined in section 715, became employés of the city, whose minimum compensation was expressly fixed by the Legislature. Prior to the insertion of these sections in the charter, under section 694 the commissioner of corrections had power within the limit of his appropriation to appoint and remove, subject to the requirements of the civil service laws, such superintendents, wardens, and other subordinate officers and assistants as may be necessary for the efficient performance of the duties of the department; and under section 56 of the charter (as amended by chapter 435, p. 1067, of the Laws of 1902), the board of aldermen, upon the recommendation of the board of estimate and apportionment, were required to fix the salary of every officer and person whose compensation is paid out of the city treasury, other than day laborers. This provision in regard to fixing salaries was not affected by section 716, except that a minimum was fixed, so that matrons who had served more than five years should receive not less than $900 per annum, matrons who had served not more than five nor less than three years should receive not less than $750 per annum, and matrons who had served less than three years should receive not less than $600 per annum.
It seems to me clear that these matrons would be entitled to receive the minimum compensation provided by section 716 of the charter, depending upon their years of service in the department, without action of the commissioner of ...