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FIRE DEPARTMENT—PROVISION OF NEW YORK CHARTER CONSTRUED

PADDEN v. CITY OF NEW YORK, 45 Misc. 517; REIDY V. CITY OF NEW YORK, 103 App. Div. 361; PEOPLE ex rel. SEGEE V. HAYES, 106 App. Div. 563.

STREET CLEANING DEPARTMENT— PROVISION OF NEW YORK CHAR

TER CONSTRUED

PEOPLE ex rel. LAHEY v. WOODBURY, 102 App. Div. 333; PEOPLE er rel. GUTHEIL v. WOODBURY, 102 App. Div. 462.

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OPINIONS OF ATTORNEY-GENERAL

Stony Point Battlefield State Reservation.—The keeper at the Stony Point Battlefield State Reservation is not an employee in the civil service of the State within the meaning of section 2 of the civil service law, nor is the treasurer of the American Scenic and Historic Preservation Society a fiscal or other disbursing officer of the State within the meaning of section 19 of the civil service law.

STATE OF NEW YORK,

ATTORNEY-GENERAL'S OFFICE,

ALBANY, February 6, 1905. Mr. John C. BIRDSEYE, Secretary State Civil Service Commission,

Albany, N. Y. Dear Sir.—I beg to acknowledge receipt of your favor of the 24th ult., informing me that the State Civil Service Commission had directed you to refer to me the papers in the matter of vouchers covering services of William Ten Eyck for salary as keeper at the Stony Point Battlefield State Reservation, and to request my opinion as to whether the place of this keeper comes within the civil service of the State within the meaning of section 2 of the civil service law, and if the treasurer of this society is a fiscal or other disbursing officer of the State within the meaning of section 19 of the civil service law.

I am of the opinion that the place of the care-taker in question is not within the provisions of the civil service law, and that he is not an employee in the civil service of the State within the meaning of section 2 of the civil service law, and I am also of the opinion that the treasurer of the American Scenic and Historic Preservation Society is not a fiscal or other disbursing officer of the State within the meaning of section 19 of the civil service law. I beg to return herewith the papers forwarded by you to me.

Very respectfully yours,
(Signed) JULIUS M. MAYER,

Attorney-General.

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Commissioner of Licenses in New York City.—The Commissioner of Licenses in the city of New York is the head of a department of the municipal government and not the head of a bureau of the Mayor. His department is in the municipal civil service and his position is in the unclassified service.

STATE OF NEW YORK,

ATTORNEY-GENERAL'S OFFICE,

ALBANY, April 12, 1905. Mr. John C. BIRDSEYE, Secretary State Civil Service Commission,

Albany, N. Y. Dear Sir.-I am in receipt of your favor of March 23, 1905 in which you ask for my opinion as to whether the place of Commissioner of Licenses in the city of New York, created by chapter 432 of the laws of 1904, is the head of a department, and also whether said position is in the classified or unclassified service of the city or State.

I am of the opinion that the Commissioner of Licenses in cities of the first class is an official who is the head of a department of government, and that he is not the head of a bureau of the Mayor. The duties confided to him under the statute are responsible, and he has the power to grant and revoke licenses, and so far as I have been able to discover from the statute, he performs these duties without any power in respect thereto being exercised by, or in conjunction with, the Mayor.

It is not always controlling whether a branch of government be called a department or not. In construing a statute, the principle is familiar that we must look to the intent of the Legislature, as disclosed by the statute as a whole plan or scheme. If there is any charm in words, the word “ Commissioner ” most usually refers to the head of a department.

The case of PEOPLE ex rel. HILLMAN v. SCHOLER, (94 App. Div., 282,) is not in point. In that case the court decided that the Coroner's office was not a city department, so as to protect against removal, under a specific section of the charter of the city of New York, a clerk in that office.

It is not necessary to refer to the opinion of the court in that case other than to say that the proposition there was that a person seeking to avail himself of a restriction against removal was bound to clearly show the warrant for his position in the statute which he invoked.

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I am also of the opinion that this department, of which the Commissioner of Licenses is the head, is a part of the municipal civil service, for the purposes, at least, of classification.

I am further of the opinion that the Commissioner is the head of a department of the municipal government, and therefore in the unclassified service. The departments of the municipal government of the city of New York need not, exclusively, be defined in the charter, but the Legislature, of course, has power from time to time, to create new departments, bureaus and offices.

To summarize, therefore, I beg to say that I am of the opinion:

First.—That the department of which the Commissioner of Licenses is the head is in the municipal civil service.

Second. That the Commissioner is the head of a department, and not of a bureau.

Third.—That the Commissioner is in the unclassified civil service.

In conclusion, I desire to again call your attention to the fact that this opinion is limited to a commissioner of licenses in cities of the first class.

Yours very respectfully,
(Signed) JULIUS M. MAYER,

Attorney-General.

Veteran.—The appointment of a veteran whose name appears on an eligible list does' not take precedence of the right to transfer a person already in the civil service when said transfer is not a promotion, and is to

a place of similar character to that from which the transferee was transferred.

STATE OF NEW YORK,
ATTORNEY-GENERAL'S OFFICE,

ALBANY, June 2, 1905. Mr. John C. BIRDSEYE, Secretary State Civil Service Commission,

Albany, N. Y. My Dear Sir.—I have your communication of May 9, 1905, in which you ask my opinion in accordance with the following resolution of the State Civil Service Commission:

“Resolved, That the Attorney-General be respectfully requested to furnish the commission with his opinion as to whether or not the rights for appointment of veterans whose names appear upon an eligible list take precedence of the right to transfer a person already in the service when said transfer is not a promotion.”.

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After a careful examination I have concluded that the appointment of a veteran, whose name appears upon an eligible list, does not take precedence of the right to transfer a person already in the civil service when said transfer is not a promotion.

I am assuming in this answer, of course, that the transfer to which you refer is a legitimate transfer, made in pursuance of law and of the rules duly adopted, and that the place to which a person in the civil service is tranferred is, as matter of fact, a place of similar character with that from which he was transferred.

You attach to your letter various communications, which, I presume, were for the purpose of illustration. I return these communications as requested, remarking in this connection that I have not passed upon the individual cases referred to in these communications, but I have only answered the question mentioned in your resolution as a question of law.

Respectfully yours,
JULIUS M. MAYER,

Attorney-General.

Volunteer Fireman.—Where a fire company is organized under a special statute which authorizes the members thereof to adopt by-laws determining the length of time which a member must serve in order to be entitled to a certificate as an exempt fireman, such special statute will govern in preference to the general law as laid down in the village law.

STATE OF NEW YORK,
ATTORNEY-GENERAL'S OFFICE,

ALBANY, July 1, 1905. John C. BIRDSEYE, Esq., Secretary State Civil Service Commis

sion, Albany, N. Y. Dear Sir.-Replying to your communication of the 27th ultimo, I would say that I see but one qualification which should perhaps be made in the opinion of Hon. John C. Davies, dated March 31, 1902, a copy of which you enclose with your communication. I think his opinion correctly states the general principle with reference to the length of time a volunteer fireman must serve to receive a certificate entitling him to exemptions.

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