paid to him, nor are they compensation for the performance of military duty, not being in any way based upon the quantity or quality of duty performed. The payment to the man of the difference between his civil salary or compensation and the compensation paid to him for military service operates whether he is single or married, supporting a family or supported by one, and section 245 of the Military Law contains nothing to indicate that it was passed for the benefit of anybody but the man himself. Held, that in interpreting the Military Law we should not consider family allowances as part of the compensation paid to a man for military service, and should not deduct them in computing the excess of civil over military pay.

Hon. William P. Burr, Corporation Counsel, New York city, submitted an inquiry, together with a request for an opinion thereon, as follows:

"Under section 245 of the Military Law, in computing the difference between the civil compensation of a State or municipal officer or employee on military duty and the compensation paid to him for the performance of such duty, should family allowances paid by the United States to dependents of enlisted men, in accordance with the provisions of article II of the War Risk Insurance Law (Act of Congress October 6, 1917), be considered as part of the compensation paid to such enlisted men for the performance of military duty?"

LEWIS, Attorney-General.- Section 245 of the Military Law, as amended by chapter 435 of the Laws of 1917, provides, inter alia, that officers and employees of the State and its municipal corporations and political subdivisions entering the Federal military, naval or marine service under stated conditions, while in the performance of duty in such service "shall receive such part of his salary or compensation as such officer or employee as equals the excess, if any, of such salary or compensation over the compensation paid to him for the performance of such duty" to the extent of not less than twenty-five dollars a month. This act took effect May 10, 1917.

On October 6, 1917, the War Risk Insurance Law of the United States took effect. Article II of that statute provides that enlisted men with wives or children must allot certain amounts,

Attorney-General

[Vol. 15]

and may allot greater amounts, and enlisted men with other dependents may allot certain amounts of their military pay to such persons, and it goes on to provide that in cases where allotments have been made, the United States will pay to the dependents of the enlisted men certain monthly allowances if there be a wife but no child, fifteen dollars; if there be a wife and one child, twenty-five dollars, etc., etc. In cases where allotments are voluntary, the allowances are only made if and while the enlisted man makes an allotment. The amounts of family allowances are fixed by the number, relationship and condition of the dependents, the amount of voluntary allotment made them by the enlisted man and his habits with respect to their support prior to his enlistment. They do not depend upon the rank or grade of the enlisted man, the amount of his military pay nor the extent of the services he renders or is expected to render.

The question is whether family allowances paid to the dependents of an enlisted man should be regarded as part of the "compensation paid to him " for military duty.

While it might be said that the family allowances, paid to dependents, are compensation to them for the absence of the man who ordinarily supported them, it can hardly be said that they are compensation paid to him for the performance of such [military] duty." The allowances are not paid to him, nor are they compensation for the performance of military duty, not being in any way based on the quantity or quality of the duty performed.

The amount of military compensation paid a man depends on his rank, the nature of his duties, and the place where he is required to perform them. A man holding a higher rank or performing more important duties or fighting in foreign lands receives higher pay than another not so ranked or detailed. The amount of the compensation is directly related to the value of the services rendered or the risk incurred. A soldier's pay is governed by what he does and it does not vary by reason of his marital status, the number of his children or dependent relaSTATE DEPT. REPT.- Vol. 15 35

tives, nor their financial condition. In the payment of soldiers we find the elements of quid pro quo and quantum meruit.

The family allowances however contain neither the element of quid pro quo (to the soldier) nor that of quantum meruit. They have nothing to do with the value of the services rendered or the risk incurred by the soldier, but are based upon purely extrinsic circumstances the number and relationship of dependents, the degree of their dependency, the amount of voluntary allotment made by the soldier, and his habits before enlistment with respect to their support.

It has been suggested that if I consider family allowance as not part of the compensation paid to the man for military serv ice, I should also exclude so much of the man's pay as he is obliged by the statute to allot to his wife and children. This does not follow. A man's salary is his compensation, even though he may be required by law to pay part of it in alimony to a divorced wife, in support of a child, in settlement of old debts, or in taxes for the maintenance of the government. If a man's dependents should die or become independent during his military service, they would cease to draw family allowances, but he would continue to earn the same compensation whether permitted to draw it all himself, required to send some of it home, or required to leave half of it on deposit with the government until his discharge.

Section 245 of the Military Law provides for the payment to the man of the difference between his civil salary or compensation and the compensation paid to him for military service it operates whether he is single or married, supporting a family or supported by one, and contains nothing to indicate that it was passed for the benefit of anybody but the man himself.

I am satisfied that in interpreting the Military Law we should not consider family allowances as part of the compensation paid to a man for military service and should not deduct them in computing the excess of civil over military pay.

!

In the Matter of CONSTRUING THE ELECTION LAW, SECTION 292, and Title VI, Section 20 of Chapter 751 of the Laws of 1895, Being an Act to Revise the Charter of the City of Hudson, Relative to Special Elections

(Opinion dated March 20, 1918)

Authority of the Governor to call a special election in a ward in the city of Hudson where the general election resulted in a tie vote for alderman of such ward.

A vacancy exists in the office of alderman of the first ward of the city of Hudson as the result of a tie vote at the general election held on November 6, 1917. The question now arises as to whether the Governor has power vested in him to fill such vacancy under the provisions of section 292 of the Election Law. Under title 6, section 20 of the charter of the city of Hudson it is provided that vacancies occurring in any manner in an elective office shall be filled by a special election to be ordered by the common council at its first regular meeting after the occurrence of the vacancy, such election to take place within one month after the order of the common council, except that if such vacancy shall occur within six months before a municipal election the common council shall fill the vacancy instead of ordering a special election. Held, that the Governor is authorized, in the situation presented in the city of Hudson, to proclaim a special election to fill the office of alderman in the first ward caused by reason of a tie vote at the general election held on November 6, 1917, and that the power of the common council to order an election is limited to those vacancies enumerated in section 30 of the Public Officers Law, and that the Governor now has, and has had for a period of over seventy years, a well-defined power in instances of this character to call a special election.

Hon. Charles S. Whitman, the Governor, has submitted a statement of facts as follows:

"The common council of the city of Hudson has requested the Governor to call a special election in that city for the election of an alderman in the first ward where there was a failure to elect by reason of a tie vote at the general election held on November 6, 1917."

Upon this statement of facts the Governor has also submitted an inquiry, together with a request for an opinion thereon, as to his duty and authority to call such special election.

LEWIS, Attorney-General. The inquiry presents the question to be determined of whether the vacancy occurring in the office of alderman in the first ward of the city of Hudson should be filled pursuant to title 6, section 20 of the city charter, or whether the power is vested in the Governor to fill such vacancy under the provisions of section 292 of the Election Law.

Title 6, section 20, of the city charter provides that: "Vacancies occurring in any manner in any elective office shall be filled by a special election to be ordered by the common council at its first regular meeting after the occurrence of the vacancy; which election shall take place within one month after such order. If, however, such vacancy shall occur within six months before a municipal election, no special election shall be ordered, but the common council shall fill the vacancy until the first day of January next ensuing, if the vacancy shall occur in the year eighteen hundred and ninety-five, and until the first day of May next ensuing, if the vacancy shall occur in any other year, but the person elected to fill a vacancy shall not hold the office longer than the thirty-first day of December next ensuing if the vacancy shall occur in the year eighteen hundred and ninety-five, nor longer than the thirtieth day of April next ensuing, if the vacancy shall occur in any other year. In case of vacancy occurring during the year eighteen hundred and ninety-five the person elected to fill a vacancy shall not hold the office longer than the thirty-first day of December, eighteen hundred and ninety-five. In the case of vacancies during the year eighteen hundred ninetysix the person elected to fill a vacancy shall not hold the office longer than the thirtieth day of April next ensuing."

Section 292 of the Election Law, providing for the filling of vacancies in elective offices, directs that "Upon the failure to elect to any office, except that of governor or lieutenant-governor, at a general or special election, at which such office is authorized