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taking a census and inventory of the military resources of the state and to provide for the organization of the reserve militia in addition to the duties pertaining to the office of Adjutant-General of the state. He will report in person, forthwith, to the Governor, for instructions relative to such additional duties.

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By order of the Governor, General Stotesbury proceeded to the taking of such military census and engaged clerks and other employees for that purpose. The question has arisen as to whether such clerks and employees should be chosen so far as practicable from the civil lists of the State.

Section 2, subdivision 3, of the Civil Service Law provided as follows:

"The Civil Service of the State of New York or any of its civil divisions or cities includes of offices or positions of trust or employment in the service of the state or of such civil division or city, except such offices and positions in the militia and the military departments as are or may be created under the provisions of Article XI of the Constitution."

It is seen that by title and express provision of the Civil Service Law, it has no reference to positions and offices in the militia and military departments of the State. Bryant v. Palmer, 152 N. Y. 412, affirming 15 App. Div. 86; Peo. v. Martin, 53 App. Div. 19; Opinions of Attorney-General, 1906, p. 365.

In Bryant v. Palmer, supra, armorers and janitors of armories. of the National Guard were held to be in the military service and not in the civil service of the State.

In 1895, Attorney-General Hancock rendered an opinion that chief clerks as well as other clerks in the staff department of the National Guard are in the military and not the civil service of the State. Opinions of Attorney-General, 1895, p. 111.

In 1910, Attorney-General O'Malley held that employees of the Bureau of Records of the War of the Rebellion are members of a military bureau and are not in the civil service. Opinions of the Attorney-General, 1910, p. 692.

"Civil service" is defined by Black in his Law Dictionary as follows:

"This term properly includes all functions under the government except military functions."

It is clear to me that the application of the Civil Service Law must be confined to the civil service as distinguished from the military service. The duty which is to be performed establishes the status of the appointee. This has been the basis of the distinction as conceived by the authorities to which I have referred. The bureau which is carrying on the taking of this census is essentially and necessarily military in its character. The act serves no civil purpose whatsoever. Its military character is emphasized by the fact that it is a census of the military resources of the State, that it is a war measure and is being carried on for that sole purpose. The fact that war has been declared robs it of any possible civil character. The information secured is to be placed at the service of the Federal government and is authorized to be taken "forthwith." The Governor is authorized to receive donations of money for the purpose. The fact that this is a service for the benefit of the government, that it is to be done forthwith and that the expense thereof is to be met by private funds in part at least, convinces me that formality and technicality should yield to the exigency even if there were any doubt as to the military character of this service.

Chapter 103 of the Laws of 1917 does not interfere in any way with the national and State enactments providing for the taking of the prescribed periodical census and enumeration. It is obviously intended to be a part of the military labors and to be undertaken under the supervision if not directed entirely by the military departments of the State both staff and field. The Governor is the commander-in-chief of the military and naval forces of the State. N. Y. Const., Art. IV, § 4. As such commander-in-chief, the Governor has full and exclusive power and authority to make and promulgate military regulations governing the military and naval forces. Opinions of Attorney-General, 1912, p. 249. In that opinion Attorney-General Carmody said:

“He must necessarily be held to have the powers incident and inherent in such military office with power to make such orders as will insure the best efficiency and discipline of the military forces under his command."

It is apparent that the authority of chapter 103, Laws of 1917, vests in the Governor as commander-in-chief of the military forces a new express power and the Governor alone without further legis

lative enactment may consummate the work through the agency of the military department. In exercising his authority under his military power, the Governor has rendered complete confirmation of the military character of the work. Moreover, if the Legislature had intended the work to be effected as a civil process, it would have prescribed some modus operandi. It is evident that the omission of any prescribed method of undertaking the work was due to the fact that under the Military Law, section 255, the Governor has been given full authority to make such rules and regulations as he may deem expedient, which, when promulgated, have the same force and effect as the Military Law. The Governor is thus enabled by virtue of his military power to accomplish that which, as a civil power, might be hedged in by many obstacles.

It is also well known that one of the elementary tests as to whether a given work comes within the province of the Civil Service Commission is the fact whether the persons employed are to be compensated from the public funds. In the act in question, it was contemplated that only a part of the expense should be borne by the public treasury, the balance being received and expended exclusively by the Governor, the receipts coming into his hands purely as donations.

In view of the foregoing, it is my opinion that the persons engaged in the work authorized by chapter 103 of the Laws of 1917 do not come within the provisions of the Civil Service Law and are exempt therefrom.

E. E. WOODBURY,

Attorney-General,

By MERTON E. LEWIS,

First Deputy.

Dated, April 18, 1917.

Extra Compensation of State Employees- Civil Service Law, Section 43.

A civil service employee in one of the distinct bureaus of the office of the Secretary of State is entitled to compensation for work performed in another district bureau where such work is not within the scope of his original employment and is performed during such periods of time as he has not contracted to devote to the work of the bureau in which he is regularly employed.

INQUIRY

Employees in the office of the Secretary of State are divided into distinct bureaus for which separate appropriations are made in the appropriation bill. Under the sections of the Election Law requiring the Secretary of State to make a register of absent voters, to prepare war ballots, etc., it becomes necessary that a large amount of extraordinary work be done in the election bureau in a short time. The Secretary of State inquires whether he may employ upon this extra work, in addition to the regular employees of the election bureau, employees of the corporation bureau and the automobile bureau, they to perform the extra work out of the regular office hours, and to be paid specially for this work in addition to their regular salaries in their respective bureaus.

OPINION

Section 43 of the Civil Service Law provides:

"No person holding a position or employed in any department bureau, commission or office to which this article applies and for which a definite salary or compensation has been appropriated or designated, shall receive any extra salary or compensation in addition to that so fixed."

The persons whom the Secretary of State proposes to employ in addition to the regular clerical force of his election bureau, hold positions subject to the article containing section 43, but not in that bureau. And he does not propose to employ them on the special election work in hand during the time for which they are paid regular salaries under the appropriation bill. The appropriation bill recognizes the different bureaus in the Secretary of State's office by making the appropriations therefore under distinct subheads, each bearing the name of the bureau to which it applies.

The purposes of section 43, as has been pointed out by my predecessors in office, are to prevent employees neglecting their regular work in office hours and getting paid extra for overtime in doing that very work out of office hours.

Attorney-General Davies, in 1901, in an opinion to the comptroller said:

"The framers of the statute evidently intended to prohibit any person from receiving additional compensation for services which he may be

said to have contracted to give to the state at a fixed compensation or salary. When a person enters the employ of the state, by way of accepting a position in any department, bureau, commission or office, the time of employment being regulated by law or custom, such person, in my judgment, cannot be paid additional compensation for services incident to his employment, nor can he receive additional compensation from any other department for services performed during the time which he was under contract to give to the particular department, bureau, commission or office, at a fixed compensation or salary. The state being the common paymaster there cannot be two salaries running to that class of persons described in the statute at one and the same time.

If a person employed in one department performs services in some other department, and at such time as he has not contracted to give his services to the department in which he is regularly employed or appointed, upon the presentation of his account, duly approved by the official who gave him the extra employment, with his own affidavit attached thereto, setting forth the nature of the services rendered, the particular hours when performed, in order that it may be determined by a perusal of said affidavit that the claim made is not in conflict with the statute, I am of the opinion that you would be justified in paying the same, provided there was an appropriation available for the payment thereof." (Rept. Atty.-Gen., 1901, p. 313.)

This ruling has been accepted as the proper interpretation of the statute ever since 1901 and has been followed in several opinions of attorneys-general and innumerable departmental rulings. The Legislature has not seen fit to change the statute, in order to overrule this construction, although it has amended the Civil Service Law practically every year since 1901. In 1909 Attorney-General O'Malley, in an opinion to the Civil Service Commission, said:

"While the language of this statute is not as clear as might be desired, it is my opinion, that construing it in the light of the practice previously existing, as shown by the opinion of the former AttorneyGeneral above referred to, there is nothing which prohibits your Commission from paying compensation to an employee of another department engaged by you to perform the work of an examiner in addition to the work pertaining to his regular employment in his own department and outside of his regular office hours." (Report of Atty. Genl. 1909, p. 590).

In 1912, Attorney-General Carmody, in an opinion to the secretary of the State College of Forestry, said:

"After considering all of these opinions and after a careful consideration of the provisions of article 3 of the Civil Service Law I think it may be stated as a general proposition that a person who is not of the class described in section 40 of article 3 of the Civil Service Law, employed in one department of the State is entitled to compensation

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