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STATE OF NEW YORK,
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 there after, 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.
Probation Officers in New York City.—The probation officers heretofore appointed by the city magistrates in the city of New York (ex pt 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,
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.
The civil service of the State, and of each of its civil divisions and cities, has been divided by the statute into the unclassified service and the classified service.
The unclassified service comprises certain officers and persons specifically described in section 8 of the civil service law.
The probation officers here referred to do not come within any of the classes or persons referred to in said section 8. The offices and positions in the classified service of the State, or of any city or civil division thereof for which civil service rules have been established pursuant to section 11 of the civil service law, are arranged in four classes, to wit, the exempt class, the competitive class, the non-competitive class and, in cities, the labor class. (Section 11, civil service law.)
Certain positions are included in the exempt class by specific provisions of the statute. (Section 12, civil service law.) The probation officers do not fall under any of these provisions.
Whether, therefore, this place of probation officer shall be exempt or not must be determined by classification made pursuant to section 10 of the civil service law and to the rules which have been adopted by the Municipal Civil Service Commission and approved by the State Civil Service Commission in relation to the civil service in the city of New York. There is, of course, no question as to your power to classify the place of probation officer in the exempt class. The sole question now is, whether the officers heretofore appointed are legally in the classified, civil service of the city of New York.
Apparently, the only probation officers heretofore classified have been the special cases arising under chapter 357 of the laws of 1903 and chapter 582 of the laws of 1902. The appointment of officers other than the two special cases above referred to seems never to have been reported to the Municipal Civil Service Commission and the names of such officers have never been entered upon the official roster of the municipal civil service of the city of New York as required by the civil service law. The reason for the failure so to do is perfectly understood by those familiar with the situation.
Until the time arrived when it was possible to pay a salary to these officers, there was no practical occasion for conforming with the provisions of the law or the rules and regulations made in pursuance thereof. I am of the opinion therefore, that before the resolution of the Municipal Civil Service Commission adopted at its meeting held on June 7, 1905 (and providing that thirteen probation officers shall be in the exempt class), can become effective, that such resolution must be approved by the State Civil Service Commission. Upon the approval by the State Civil Service Commission of this or some other classification, it will become necessary for the Board of Magistrates to appoint persons as probation officers in conformity with the amended resolution thus approved.
I reach this conclusion most reluctantly because I realize the value of the services rendered by these officers during a considerable period of time when they received no compensation. It may, perhaps, be proper, however, to call your attention to the fact that in the two cases above referred to the Municipal and State Civil Service Commission have regarded the qualifications of the place of probation officer as of a character to warrant classification in the exempt class, and I may also say that the exemption obtained under chapter 582 of the laws of 1902 was not es parte but was after argument which I presented on behalf of the Court of Special Sessions for the First Division in the City of New York, of which Court I was then a member.
Investigation of Violation of Civil Service Law.—The State Civil Service Commission has jurisdiction to investigate an alleged violation of section 24 of the civil service law in a State Department, and as an incident to such jurisdiction has the right to subpoena and require the attendance of witnesses and the production of books. Its power of investigation is not limited to a conspiracy or conclusive act between an examiner or subordinate of the commission on the one hand and a person in the public service on the other.
STATE OF NEW YORK,
ALBANY, September 27, 1905. To the Honorable the State Civil Service Commission.
Gentlemen.--I acknowledge receipt of your communication per Secretary Birdseye, dated September 20, 1905, in which you ask