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for work performed for another department, where such work is not within the scope of his original employment and is performed by him during such periods of time as he is not required by law to devote to the department in which he is regularly employed."

The principle underlying these rulings is that the statute is not considered to prevent a person employed in one department at a regular salary from being paid for extra work elsewhere, provided the work so performed is not within the scope of the work he has contracted to perform at a regular salary, and further, provided that the extra work is not performed in the time he has contracted to devote to earning his regular salary. This being the case I see no reason why the principle should not be applied to permit the Secretary of State, in the case under consideration, to employ clerks who are regularly employed in the automobile bureau or the corporation bureau at the extra work of the election bureau, outside of the regular office hours established by law or custom for which they have contracted to give their services to the corporation bureau, or the automobile bureau. The work they will perform in the election bureau is certainly not within the scope of their regular employment in the corporation bureau or the automobile bureau and if the work they perform in the election bureau is not performed during the time they can fairly be said to have contracted to devote the work of the corporation. bureau or the automobile bureau, it is my opinion that to pay for such extra work would not constitute a violation of section 43 of the Civil Service Law.

In the past, rulings holding such compensation permissible have been where the extra work was done for a department other than the one in which the person so paid was regularly employed. But since the appropriation bill recognizes the different bureaus in the Secretary of State's office as established branches, by making separate appropriations for them, and since section 43 of the Civil Service Law itself, by mentioning bureaus, recognizes them as entities, I think that what my predecessors have held with respect to departments may fairly be said to apply equally to the bureaus in the office of the Secretary of State. Dated, September 7, 1917.

MERTON E. LEWIS,
Attorney-General.

TO HON. FRANCIS M. HUGO, Secretary of State, Albany, N. Y.

Civil Service Law, Section 30- Constitutional Oath by Employ. ees of the State and Its Civil Divisions and Cities

All persons holding positions as laborers in the exempt class in the state, county, village and town service under section 13 of the Civil Service Law and also the labor class in cities as defined in section 18 of that law, are excepted from the provisions of chapter 574 of the Laws of 1917, which added section 30 to the Civil Service Law and required persons employed by the state or its civil divisions and cities to take and file the constitutional oath.

Statute construed as not covering everyone who enters into contractual relation with the state and who as an incidental part of his business might be called upon to do some work for the state etc., but as meaning the regular employees placed upon the payrolls of the state etc.

INQUIRY

I have been considering the request for an opinion orally communicated to me by Commissioner Rice with reference to chapter 574, Laws of 1917, which adds a new section to the Civil Service Law requiring persons employed by the State and its civil divisions and cities to make and file a constitutional oath.

OPINION

Two questions have been raised with reference to the application of this statute.

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1. The statute is made applicable to "every person hereafter employed by the State or any of its civil divisions or cities except in the labor class as defined in this chapter.". The question occurs as to what is meant by "the labor class as defined in this chapter." Section 10 provides, inter alia that "No examination or registration shall be required of persons to be employed as laborers in the state service." Section 13 provides that "The following positions shall be included in the exempt class or the non-competitive class: * * 4. In the State service, all unskilled laborers and such skilled laborers as are not included in the competitive class; * * * 99 Section 18 defines "The labor class in cities," providing for listing of candidates and appointment from lists. Thus we see that there is more restriction upon the appointment of laborers in the State than in the city service and it would not seem reasonable that the Legislature intended to make the new requirement apply to the State laborers while exempting the city laborers from it. I am therefore of opinion that in using the phrase "the labor class as defined in this chapter" the Legislature contemplated all laborers

"The

referred to in sections 10 and 13 as well as in section 18. state service" as used in sections 10 and 13 has been held to mean the service which is subject to the jurisdiction of the State Civil Service Commission-that is all service except city service. So it is my opinion that the exception excludes from the requirement of filing oaths, all persons holding positions as laborers in the exempt class in the State, county, village and town service under section 13 of the Civil Service Law and also the labor class in cities as defined in section 18 of the Civil Service Law.

2. The further question arises as to the application of this statute to persons contractually employed such as veterinarian who may be called in to treat a sick horse used by the State in connection with one of its institutions. It seems to me that it was intended to include first only those who are placed upon the payroll of the State or any of its civil divisions or cities and not intended to include any employments where a disbursement is made directly to the person employed by the department or officer employing him and the voucher is presented as a disbursement voucher by such department or officer. I am also inclined to believe that the Legislature did not intend to include such emergency employment as would involve only a day's labor or a fraction of a day but only such employment as involved a more or less continuous service. Perhaps this is best indicated by the language of the last sentence which reads as follows:

"The failure of such employee to take and file such oath shall terminate his employment until such an oath shall be taken and filed as herein provided."

No other penalty is provided and it seems to me that it was contemplated that there should be a more or less steady employment and certainly was not intended to mean everyone who entered into a contractual relation with the State and who as an incidental part of his business might be called upon to do some work for the State and be paid by it. In other words, I believe it was intended to mean the regular employees of the State, etc., who are placed upon the payrolls of the State, etc.

Dated, May 31, 1917.

MERTON E. LEWIS,

Attorney-General.

TO STATE CIVIL SERVICE COMMISSION.

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One who is not a citizen of the United States and was born in Germany or Austria does not cease to be an enemy alien” by taking the constitutional oaths and should not be permitted to take such oath.

INQUIRY

The State Civil Service Commission inquires if persons who are natives of Germany or Austria and who apply for employment in the State service before they are naturalized, cease to be enemy aliens" if they take the constitutional oath required by

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statute.

OPINION

In reply to your letter of December 8th, I must advise you that I do not think that by taking the oath of allegiance or a constitutional oath an enemy alien ceases to be an enemy alien. A citizen of Germany or of Austria-Hungary is a citizen of a country at war with the United States and until admitted to citizenship, or at least to the status of one who has signified his intention of becoming a citizen but has not yet accorded full civic rights, he necessarily retains his native nationality. One cannot expatriate himself by merely taking an oath to support the constitution of a sovereign other than his own, especially at a time when that sovereign is at war with his sovereign. I do not think that an alien enemy can support the constitution of the United States and I do not think that he should be permitted to take an oath to the effect that he will. Dated, December 14, 1917.

MERTON E. LEWIS,
Attorney-General.

TO STATE CIVIL SERVICE COMMISSION, Albany, N. Y.

Pension of State Employees - Civil Service Law, Section 21-A

One who is not employed in the service of the state, at the time of the enactment of section 21-a of the Civil Service Law, although prior thereto he had served for ten years continuously is not entitled to a pension. This section is not retroactive.

INQUIRY

The Superintendent of Prisons asks to be informed if a former officer of Auburn Prison and a Civil War veteran who was in the State service for over ten years continuously prior to the enactment of chapter 438 of the Laws of 1916, but retired from the service in 1911, can be placed upon the payroll at half pay as a retired officer.

OPINION

I have your letter relating to Henry J. Rhodes, a Civil War veteran, in which you request my opinion with respect to section 21-a of the Civil Service Law as added by chapter 438 of the Laws of 1916. It is perfectly clear to me, and I have heretofore ruled that this section only provides for the pensioning of employees in the service at the time of, or after its passage, and cannot be construed to permit the pensioning of one whose connection with the civil service was severed prior to April 27, 1916 no matter what his qualifications may be. In the statute the retirement from employment and the right to pension are so tied up together that it is impossible to conclude that the Legislature intended to provide for the pensioning of men who had retired from employment some time prior to the passage of the statute.

Dated, March 15, 1917.

E. E. WOODBURY,
Attorney-General.

HON. JAMES M. CARTER, Superintendent of Prisons, Albany,

N. Y.

Military Law, Section 245-Provisional State Employees in National Guard-Civil Service Rule VIII, Subdivision 4; Law, Section 15-Section 245 of the Military Law Does Not Protect an Employee Who Although a National Guardsman Fails to Take an Examination for the Position He is Holding Provisionally

INQUIRY

Is a person holding a State position provisionally entitled to the benefits of section 245 of the Military Law after he is called

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