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 munici pal 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. service. That the Commissioner is in the unclassified civil 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. 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." 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, 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 Commission, 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. Where, however, a fire company is organized under special statute, and that special statute authorizes the members thereof to adopt by-laws determining the length of time which a person must serve in order to be entitled to a certificate as an exempt fireman, I am of the opinion that such special statute would govern, in preference to the general law, as laid down in the village law. I have examined the articles of incorporation of many of the fire companies in Richmond county, extending back as far as 1853. They were all organized under special acts of the Legislature, and some of them did authorize the company itself to establish rules and regulations governing their management, and I am of the opinion that those rules and regulations would have the force of a statute. Section 10 of chapter 370, laws of 1899, contains the following language: "The authority by this section conferred shall not be so exercised as to take from any policeman or fireman any right or benefit conferred by law, or existing under any lawful regulation of the department in which he serves." I think this language in the civil service law indicates that the framers of that statute did contemplate the possibility of some fire companies having a provision in their charters, or a by-law enacted in accordance with power conferred upon them by the Legislature, differing in some respects from those organized under the general village law. Of course, it is safe to assume that fraud would vitiate any transaction and any certificate which may be issued by a fire company to one of its members who has never actually served, and actually issued for the ulterior purpose of giving them advantages under the civil service law to which they would not ctherwise be entitled, would be void. Following is the opinion of Hon. John C. Davies, to which the foregoing opinion refers: STATE OF NEW YORK, ATTORNEY-GENERAL'S OFFICE, ALBANY, March 31, 1902. Mr. H. VAN BENSCHOTEN, Germantown, N. Y. Dear Sir.-The Secretary of State has referred to me your communication to him of the 26th instant, inquiring how long a volunteer fireman must serve to receive a certificate entitling him to exemptions. In reply I have the honor to say that by section 6 of title 3 of chapter 291 of the laws of 1870, every member of a village fire department while such member shall be exempt. from serving in the militia, except in cases of war, invasion and insurrection, and every person who shall serve in such fire department five successive years, shall thereafter be entitled to the like exemption from military service, and the certificate of such service authenticated by the president of the village and the corporate seal, shall be presumptive evidence before all courts. and officers, civil and military, of such exemption. This law has been substantially re-enacted in the present village law (chap. 414, laws of 1897, § 209), which provides that "a full term of service in a fire department is five successive years. A person who has served in a fire department of a village, after becoming eighteen years of age, shall be entitled to a certificate of such service, signed by the president and under the corporate seal, or by the chief engineer and the secretary of the fire department, or by a majority of the members of the board of fire. commissioners in a village in which separate fire commissioners are appointed. Such certificate shall be presumptive evidence of the facts stated therein. “A member of a fire department who removes from the village shall be allowed, as part of a full term, the time he has served continuously as a fireman therein, if, within three months thereafter, he becomes a member of the fire department of another village or city; and, upon completing a full term, shall be entitled to all the privileges and exemptions thereby secured to firemen." By section 8 of chapter 315, laws 1887, regarding fire companies in unincorporated villages, as amended by chapter 745, laws 1895, it is provided that every active fireman who shall be a member of any department or company organized under the provisions of that act shall be entitled to all exemptions provided by chapter 291, laws 1870, and the acts amendatory thereof. By section 1030 of the code of civil procedure, subdivision 13, "a member of a fire company or fire department duly organized according to the laws of the State and performing the duties therein; or a person, who, after faithfully serving five successive years in such a fire company or fire department, has been honorably discharged therefrom," is entitled to exemption from service as a trial juror, upon his claiming such exemption. It is, therefore, my opinion that to entitle a fireman to a certificate entitling him to exemption he must have served the full term of five years. Respectfully yours, JOHN C. DAVIES, Probation Officers in New York City. The probation officers heretofore appointed by the city magistrates in the city of New York (except in the special cases arising under chapter 357 of the laws of 1903, and chapter 582 of the laws of 1902) are not legally in the classified civil service of said city, and are not in a position to be continued therein as salaried officers without examination. In order to render them legally in the civil service of the city, they must be appointed after the position has been classified and the, classification approved by the State Civil Service Commission. The position may be placed in the exempt class. STATE OF NEW YORK, ATTORNEY-GENERAL'S OFFICE, ALBANY, July 28, 1905. To the Honorable the State Civil Service Commission, Albany, N. Y. Gentlemen. I beg to acknowledge the receipt of your communication of the 19th inst. in which you ask my opinion as to whether or not certain probation officers heretofore appointed by the city magistrates in the city of New York are legally in the civil service of said city, and whether they are now in a position to be continued therein as salaried officers without examinations Your communication sets forth the facts, and it will not be necessary to repeat them except in so far as I may refer to them in this opinion. |