DIGEST OF COURT DECISIONS

Civil Service Law Amendments

Section 21-a. Civil war veterans; retirement; pensions. Added by Laws 1920, chap. 746, in effect May 12, 1920.

Section 21-a. Civil war veterans; retirement; pensions. Amended by Laws 1920, chap. 751, in effect May 12, 1920.

Section 22. Power of removal limited. Amended by Laws 1920, chap. 833, in effect May 19, 1920.

Section 22-a. Suspension and reinstatement of employees. Added by Laws 1920, chap. 836, in effect May 19, 1920.

Section 22-c. Continuity of service, soldiers, sailors or marines. Added by Laws 1920, chap. 266, in effect April 19, 1920.

Section 22-c. Physical examinations of persons in service during world war. Added by Laws 1920, chap. 750, in effect May 12, 1920.

Section 30-a. Inspectors of masonry construction. Added by Laws 1920, chap. 592, in effect May 10, 1920.

1920.

Sections 50-72. Retirement of state civil service officers and employees. Added by Laws 1920, chap. 741, in effect May 11, Sections 60, 61, renumbered as sections 100, 101. Section 22. Superintendent of waterworks not a

Cities Law, sec. 94

See Laws 1920, chap. 741. position "— Second Class

The office of superintendent of water works of the city of Binghamton is not a "position" within the meaning of section 22 of the Civil Service Law, and the power conferred by section 94 of the Second Class Cities Law upon the commissioner of public works in said city to appoint one to such office to hold during the pleasure of the commissioner is not limited by said section of the Civil Service Law. (People ex rel. Johnson v. La Roche, 111 Misc. Rep. 465; 181 N. Y. Supp. 611.)

Classifications

Promotions - Attempted validation of improper.

Where promotions are made within the civil service to classifications which do not legally exist, any subsequent action of the local civil service commission in conferring different titles on the persons promoted does not validate the improper promotion. Story v. Craig, 191 App. Div. 914; 180 N. Y. Supp. 955, the court said: "It is much to be regretted that the former official administrators of the Civil Service Law in the city of New York, after repeated judgments of the courts (People ex rel. Fowler v. Moskowitz, 175 App. Div. 710; 220 N. Y. 669; Gallagher v. Patterson, N. Y. L. J. Jan. 4, 1918; Story v. James, Id. Jan. 8, 1918), should have endeavored to defeat the plain requirements of the Constitution and statutes providing for examinations and promotions, within and under the classified city service, which is the great purpose of a civil service commission and the only security for fair, open and equal competition. The judgment is unanimously affirmed, with costs."

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Constitutional Law

Certification of appointment as veteran Laws 1920 chap. 282.

The statute (Laws 1920, chap. 282) which declares that a public employee who had secured a place on the civil service eligible list by competitive examination before or while in the military or naval service in the World War shall be preferred for any appointment or promotion thereafter made in such grade in the department in which he shall be employed, is constitutional. (Matter of Barthelmess, 112 Misc. Rep. 204; 184 N. Y. Supp. 133.)

Excise Department

99 Position of chief inspector - No appropriation for salary Mandamus to reinstate will not lie.

position

-Abolition of

Petitioner, an exempt fireman, from October 1, 1914, to July 1, 1917, held the position of chief inspector in the department of excise. The general Appropriation Law for the year from July 1, 1917, to June 30, 1918, chapter 181 of the Laws of 1917, contained no item for the salary of the position of chief inspector, and did not provide for any similar position under any other name. Defendant alleged that by reason of the fact that no sum had been appropriated or was available for such salary, it became necessary to abolish the said position of chief inspector in the department of excise, and such position was abolished on the 1st day of July, 1917. The Appellate Division affirmed an order of the Special Term denying a motion for a peremptory writ of mandamus to compel defendant to reinstate relator in the position of chief inspector, and the Court of Appeals affirmed the order of the Appellate Division. (Matter of Ward v. Sisson, 229 N. Y. 522; aff'g 188 App. Div. 942.)

New York City

1. Reduction of salary of employee in office of Comptroller.

Although a civil service employee in the office of the Comptroller of the City of New York and in the competitive class, received a certain salary per annum as a member of a certain grade, the board of aldermen on the recommendation of the board of estimate and apportionment may reduce the salary of such employee in a subsequent budget, and, having voluntarily accepted the lower salary, he cannot maintain an action to recover from the city the difference between his former and present salary on the theory that he could not be reduced to a lower grade and a lower salary without charges being preferred and an opportunity given for him to be heard. (Brigham v. City of New York, 191 App. Div. 866; 182 N. Y. Supp. 145.)

2. Section 1543 of Greater New York charter ·Prohibition against removal or reduction in grade unless on charges.

The provision of the Greater New York charter (§ 1543) forbidding the removal or reduction in grade of an employee without charges and a hearing, was intended to protect individual employees from arbitrary and unjust action on the part of their superiors, and was not intended to limit the power of the proper officials in good faith to reduce the salary of a certain office, providing the reduction was not unjust and not for the purpose of discriminating against any single employee. (Brigham v. City of New York, 191 App. Div. 866; 182 N. Y. Supp. 145.)

Second Class Cities Law

Section 94. Power of appointment to office of superintendent of water works of the city of Binghamton not limited by section 22 of the Civil Service Law. (People ex rel. Johnson v. LaRoche, 111 Misc. Rep. 465; 181

N. Y. Supp. 611.)

Veterans

World War veterans as police sergeants in New York city Military Law, section 245 (7) is constitutional State Constitution, Article V, section 9, construed.

The statute (Military Law, section 245, as added by chapter 241 of the Laws of 1919, and amended by chapter 282 of the Laws of 1920), in reference to preferences in the promotion and appointment of veterans of the military or naval service to civil service positions, is not invalid as violating section 9 of article 5 of the State Constitution which grants preferences to veterans of the Civil War, and the petitioners, members of the New York city police department who had passed the promotion examination for police sergeant, were not entitled to an order directing the municipal civil service commission of New York city to recall and annul a certification for promotion of the name of a World War veteran who in rating was not among the first three on the list. (Matter of Barthelmess v. Cukor, 194 App. Div. 359.)

It must be assumed that the Legislature in respect to the preferences now in question meant merely that the names of those in whose favor the preference is given should be certified for appointment and promotion in the order of their respective ratings on the eligible list following the names, if any, of honorably discharged soldiers and sailors of the Civil War for whom a preference is provided by section 9 of article 5 of the State Constitution. (Matter of Barthelmess v. Cukor, 194 App. Div. 359.)

Promotions are privileges only, not constitutional rights.

Citizens possess no constitutional right to appointments, or promotions in the public service but these are privileges only, which may be conferred for reasons deemed sufficient by the Legislature upon all of the same class, provided there is no discrimination with respect to classification and a classification based on military or naval service may not be said to be arbitrary or declared void on that ground. (Matter of Barthelmess v. Cukor, 194 App. Div. 359.)

Preference to Civil War veterans not exclusive.

The preference granted to Civil War veterans by the Constitution are not exclusive of all others and the Legislature was not stripped of all power thereby with respect to granting preferences in appointments and promotions. (Matter of Barthelmess v. Cukor, 194 App. Div. 359.)

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OPINIONS OF ATTORNEY-GENERAL

Civil Service Law Promotions - Increase of Salary by Statute Division Engineer in Highway Department

Where a promotion examination has been held and an eligible list established for promotion from senior assistant engineer to division engineer, in the State Highway Department, the subsequent increase by the Legislature of the salary of division engineer, does not cancel the list nor prevent promotion therefrom at the increased salary.

STATEMENT

The office of division engineer in the State Highway Department is in the competitive class of the civil service and vacancies are ordinarily filled by promotion from among those holding the position of senior assistant engineer. In 1916 the Civil Service Commission held an examination for promotion to the office of division engineer, and as a result of this examination prepared an eligible list. This eligible list has not yet been canceled or superseded. At the time the list was promulgated the salary of division engineer was fixed by section 16 of the Highway Law at $4,000 per annum. That section was amended by chapter 467 of the Laws of 1919, increasing the salary to $5,000 per annum. On February 25, 1920, the Commissioner of Highways removed one of his division engineers. A clerk in his office then telephoned to the Civil Service Commission, requesting the certification of names for appointment to fill the vacancy. The Assistant Secretary of the Civil Service Commission advised this clerk that the list was already in the possession of the Highway Department and that no further certification was necessary. Thereafter, the Commissioner of Highways notified the Civil Service Commission that he had appointed Leonard D. Brownell, division engineer, to fill the vacancy mentioned, at the salary of $5,000 per annum, the appointment to be effective February 25, 1920. Mr. Brownell's name was third upon the eligible list referred to. (On the list as it appeared in the Civil Service Commission's records Mr. Brownell's name was fourth, the records not having been corrected to allow for the death of Frank W. Bristow. The correction of the record to strike off the list the name of Mr. [130]