6. Civil war veteran left position in civil service to enter military service Restoration to former position - Mandamus

On August 31, 1918, relator, who since 1911 had been assistant engineer in the department of water supply, etc., of the city of New York, left his position to enter the federal military service from which he was honorably discharged September 30, 1920. Upon the hearing of an application pursuant to section 22-b of the Civil Service Law for a peremptory writ of mandamus to compel the commissioner of water supply, etc., to reinstate him as an assistant engineer, held, that where notwithstanding the respondent's contention that the position formerly held by relator had been abolished, it clearly appeared that after the shifting of various engineers of the same general character as relator and after the intradepartmental transfer of "office designations" and "titles," the position of relator as he left it to enter the federal military service was intact upon his return, he came within both the letter and spirit of the statute and was entitled to the writ directing his restoration to his former position. (People ex rel. Machen v. Hayes, 115 Misc. Rep. 373.)

7. Civil service commission no power to revive expired eligible list when affidavits irrelevant

When two motions for peremptory writs of mandamus to compel the civil service commission of the city of New York to certify the names of the relators for promotion to the rank of lieutenants in the fire department were denied on September 29, 1921, and affidavits purporting to show that a certain eligible list for the position of engineer of steamer, which expired July 29, 1920, was thereafter revised and certification made therefrom, were presented upon a motion for a reargument, presumably to show that a precedent exists for the revival of an expired list. Held, that the issue raised by a denial of these facts, in an opposing affidavit, was of no relevancy, the said civil service commission had no power to revive an expired eligible list. (People ex rel. Walter v. Kaplan, 117 Misc. Rep. 256.)

8. Promotion Right to take examination

Employees of city who are illegally promoted to positions which do not exist do not thereby lose their status as civil service employees and are entitled to take promotion examinations. (People ex rel. Story v. Cukor,

Absence of eligible list No power to revive expired list

Where there is no eligible list, the specific provisions in the rules of the State Civil Service Commission or of a local civil service commission for temporary and provisional appointments, negative the contention that either

of said commissions has power to revive an expired eligible list. (People ex rel. Walter v. Kaplan, 117 Misc. Rep. 256.)

Technical breach of rules does not justify dismissal of World war veteran. (People ex rel. Rigby v. Anderson, 198 App. Div. 283.)

1. Liberal construction of statute

Veterans

A statute affording protection or relief to veterans should be liberally construed in their favor. (People ex rel. Doud v. City of Rochester, 116 Misc. Rep. 703.)

2. When within protection of section 21A as amended

Petitioner, an honorably discharged veteran of the Civil war, had been continuously employed for an unbroken period of more than ten years in the civil service of the city of Rochester, N. Y., as a fireman but such service was performed a considerable length of time before he, at the age of seventyeight years, applied for retirement. Held, that he came within the terms of section 21A of the Civil Service Law, as amended by chapter 54 of the Laws of 1921 and his application for a peremptory writ of mandamus directing the payment to him of an annual sum equal to one-half of the wages paid to him in the last year of his service, will be granted. (People ex rel. Doud v. City of Rochester, 116 Misc. Rep. 703.)

The mere technical breach of rules on the part of a World war veteran protected by the Civil Service Law, who was employed in the office of the county treasurer of Erie county, without wrongful intent, was not sufficient to warrant his dismissal from the service. (People ex rel. Rigby v. Anderson, 198 App. Div. 283.)

4. Statement of case

Accordingly, the county treasurer was not justified in dismissing the relator, where it appeared that the relator with others was engaged in receiving letters containing checks for the payment of taxes and making notations on the checks and tax bills; that currency was seldom sent by mail to pay taxes; that relator signed for a registered letter, which he had the right to do, containing currency remitted for the payment of taxes, and instead of taking the cash immediately to the cashier as required by the rules of the office, placed it in his pocket, without any intention of appropriating it, where it remained till his attention was called to it by a fellow-servant, when he turned it over to a superior, explaining the circumstances. (People ex rel. Rigby v. Anderson, 198 App. Div. 283.)

Yonkers (City of)

See MANDAMUS, 1

OPINIONS OF ATTORNEY GENERAL

January 10, 1921. HON. JOHN C. BIRDSEYE, Secretary, Civil Service Commission, ALBANY, N. Y.

DEAR SIR. The letter of December 20, 1920, addressed to you by the Chief Clerk of the Transit Construction Commissioner, contains two questions which I have considered in the light of the opinion addressed by this department to the State Engineer, dated June 1, 1920. His first question is: "Where John Smith entered the service as junior assistant on April 1, 1919, and was promoted to the position of junior engineer on July 1, 1920, is he entitled to preference in retention over John Jones who was appointed as junior engineer from an open competitive list on December 15, 1919?"

At first blush it might seem more within the spirit of the statute to say that in this case Smith is entitled to preference, but a rule upon which such a preference could be granted would have to be a general one applicable in all cases, and such a rule can easily be reduced to an absurdity. For example: Suppose John Doe entered the service as junior assistant on January 1, 1919, and Richard Roe entered as junior engineer on January 15, 1919. On January 1, 1921, Doe is promoted to junior engineer and on January 15, 1921, a reduction of the force of junior engineers becomes necessary. Should the man who has been junior engineer for two weeks be retained in preference to the junior engineer who has been retained for two years? It seems to me that we must consider the interests of the State as well as the interests of the employee in interpreting the statute. In my opinion the preference should depend upon length of service in the position and not length of service in the department or in the civil service, and in my mind it does not matter whether the employee came into the position by apointment or by promotion.

The second question is: "Where an employee was appointed as junior engineer in 1917, resigned in 1918 and was reinstated on May 25, 1919, is he entitled to preference over an employee who was appointed as junior engineer on May 1, 1919?" This department has always held that the various civic statutes providing for retirement after a stated number of years' service mean continuous service and I think that the same should be true here. The statute rewards fidelity and seniority by preference in retention when the number of positions is reduced. The man who separates himself from the service thereby waives his rights to preference as those rights might be measured by service prior to separation. On rejoining the service he should not be allowed to reinstate the

rights which he waived, but should start fresh. It is therefore my opinion that seniority in this matter should count from the date of last appointment.

Yours very truly,

CHARLES D. NEWTON,

Attorney-General.

By J. S. Y. IVINS,

Deputy.

FEBRUARY 17, 1921.

STATE CIVIL SERVICE COMMISSION, ALBANY, N. Y.:

GENTLEMEN.- Receipt is acknowledged of your inquiry of the 9th instant as to whether the position of tax clerk, to which appointment is made by the Clerk of the Board of Supervisors of Erie County, is in the unclassified or classified service.

Section 9 of the Civil Service Law provides, among other things, that:

"The unclassified service shall comprise all elective offices, all offices filled by election, or appointment by the legislature on joint ballot; all persons appointed by name in any statute; all legislative officers and employees", etc.

A county board of supervisors is a legislative body within the meaning of the law.

I concur in the Commission's assumption "that employees of a board of supervisors of a county are 'legislative officers and employees' and that their positions fall in the unclassified service as defined by section 9 of the Civil Service Law."

The fact that this clerk is appointed by the clerk of the board of supervisors does not change the situation. See Matter of William L. D. O'Grady v. Frank L. Polk, et al., 132 A. D. page 47, where a practically parallel case is passed upon. The following language is found in the opinion of Judge Jenks which was concurred in by four justices of the Appellate Division, Second Department: "The contention of the learned counsel for the relator is that these appointees are without the unclassified service because they are not appointed by the legislative body, but by the city clerk. This contention is not justified by the words of the Civil Service Law (section 8 as amended supra- now section 9) applicable to this case, which are 'all legislative officers and employees'. If the Legislature intended to limit such officers and employees to those directly appointed by this legislative body it could readily have so declared".

A county board of supervisors is a parallel body to the Board of Aldermen of the City of New York. See People ex rel. Martin v. Scully, 56 A. D. page 302.

I am therefore of the opinion that said appointee is a legislative employee within the meaning of section 9 of the Civil Service Law and should be considered to be in the "unclassified" service.

Very truly yours,

CHARLES D. NEWTON,

Attorney-General.

By P. H. CLUNE,

Deputy.

Civil Service Law, § 9 and 22-Rule 12, Paragraph 1, Probationary Appointments

Under section 9 of the Civil Service Law, all appointments in the classified service (which includes competitive, non-competitive and exempt classes) must be for probationary terms not exceeding the time fixed in the Rules. The Rules fix no probationary terms for positions in the exempt class. Where the rule is silent and the probationary term was not fixed by the appointing officer at the time of making an appointment, it may be fixed thereafter.

Section 22 of the Civil Service Law does not require the retention of veterans (except Civil War Veterans) after the expiration of a probationary term and no hearing is necessary before they may be dropped.

INQUIRY

Shortly before January 1, 1921, the Superintendent of Public Buildings appointed certain veterans of the World War to positions as laborers in the Department of Public Buildings. The term of office of the Superintendent of Public Buildings expired and the new superintendent was appointed on January 1, 1921. The outgoing superintendent did not fix any probationary terms for the laborers so appointed. May their probationary terms be fixed by the new superintendent? What are their rights under section 22 of the Civil Service Law as amended by chapter 833 of the Laws of 1920?

OPINION

The first civil service law enacted in this State was passed in 1883. The first Civil Service Commission was appointed by Governor Cleveland in the same year. And among the first rules it promulgated (approved by the Governor, December 6, 1883), was one reading as follows:

66

"Rule XL.

Every original appointment for employment in the civil service shall be for a probationary term of three months, at the end of which time,