294 N.Y. 245 | NY | 1945
On April 1, 1943, both the petitioners and the interveners were occupying the positions of motor vehicle license examiners in the Motor Vehicle Bureau of the Department of Taxation and Finance. Effective on that day, a number of those positions were abolished and it became necessary to suspend a certain number of employees "in the inverse order of original appointment in the service", pursuant to the provisions of Civil Service Law, section 31. We must determine whether the petitioners or the interveners have seniority. The interveners held the positions as a result of a transfer from the Transit Commission in 1940. The petitioners were appointed to the positions from a competitive list a few months earlier in the same year. When the positions were abolished, the interveners were retained and the petitioners were suspended. The Appellate Division was of the opinion that our decision in Matter of Horn v. Gillespie (
The question presented for our consideration is, therefore, whether service with the former Transit Commission (Metropolitan Division of the New York State Department of Public Service) is State or city service. If the interveners, when occupying the positions of transit inspectors, later called transportation service inspectors, in the Transit Commission, were State employees, then they are senior in service to the petitioners. Were they in city service, that could not be added to State service to establish seniority. (Matter of Eagan v. Livoti,
Historically, the Transit Commission has always been a State agency. When the amendment to article V, section 2, of the New York State Constitution was adopted at the general election in 1925, provision was made for a Department of Public Service. The enabling act, chapter 350 of the Laws of 1926, consolidated into that department the former Public Service Commission and the former Transit Commission. There was then a Department of Public Service with two divisions, viz., a State Division and a Metropolitan Division. The head of the Metropolitan Division was a Transit Commission, consisting of three members appointed by the Governor, by and with the consent of the Senate. They were subject to removal by the Governor for inefficiency, neglect of duty or misconduct in office. The head of the State Division was a Public Service Commission, consisting of five members appointed by the Governor, by and with the consent of the Senate. The chairman of the Commission was designated as such in his appointment and he was both chairman of the Public Service Commission and head of the department. When he acted in such capacity, he was known as the chairman of the Department of Public Service. The appointment or removal of all officers, clerks, inspectors, experts and employees of the department, or any division thereof, were subject to the approval of such chairman.
The jurisdiction of the Transit Commission extended generally, at the period herein involved, to:
(1) Railroads, street railroads and stage or omnibus lines or routes lying exclusively within a city containing a population of over one million inhabitants and to the persons or corporations owning, leasing or operating them; *250
(2) Similar lines or routes where a portion of the lines or routes were within such city but extended beyond the city to a point within the State (in which case the Public Service Commission had jurisdiction outside the territorial limits of the city);
(3) All omnibuses with a carrying capacity of more than seven persons, operating within the City of New York.
The Department of Public Service, with its State and Metropolitan Divisions, was separate and apart from the Board of Transportation, created by the Legislature in 1924 (L. 1924, ch. 573) for the purpose of constructing New York City subways, to which Board reference will later be made.
The salaries of interveners were determined by the Transit Commission (Matter of Powers v. La Guardia,
By Chapter 170 of the Laws of 1943, the Metropolitan Division of the Department of Public Service and the Transit Commission were abolished and their functions transferred to the State Division of the Department of Public Service.
The petitioners place great reliance upon Matter of Horn v.Gillespie (
The fact that the City of New York paid interveners' salaries is not determinative. The salaries were fixed by the Transit Commission and not by the City. (Public Service Law, §§
Nor is the fact that the interveners are members of the city retirement system determinative. The city retirement system was created to provide "a retirement system for officers and employees whose compensation in whole or in part is payable out of the treasury of the city of New York" (L. 1920, ch. 427). It was not for officers and employees of the city exclusively. On the contrary, section 1700, subdivision 3, of the Greater New York Charter (L. 1901, ch. 466) as amended by that act includes State employees in the following definition: "3. `City-Service' shall mean service, whether appointive or elective, as an official, clerk or employee of the city or state of New York * * * so far as such service is paid for by the city of New York * * *" (emphasis supplied). To the same effect are the provisions in the New York Administrative Code, which define city service in dealing with the city retirement system. (Administrative Code, §§ B3-1.0, B3-3.0.) It seems clear that it was convenience of administration of both the city and the State retirement systems which dictated the inclusion of such State employees as interveners in the city retirement system. It was *253
more logical, as well as more practical, when a State employee received compensation from a city, to have him join the city retirement system and to have the city then make the necessary contribution than to have the city make the necessary salary deduction, and remit such deduction to the State so that the latter might then add its contributions to the State retirement system. The salaries of interveners were "chargeable to the city in which such commission has jurisdiction, * * *" (Public Service Law, §
In the same way, the fact that the interveners were always regarded by the State Civil Service Commission as being in the State service for all of the purposes of the Civil Service Law, including the certification of payrolls, their seniority rights under section 31 of the Civil Service Law, their promotion, transfer, the abolition of their positions under section
It is also urged that, even if the service of the interveners with the Transit Commission was State service, their transfers to their present positions as motor vehicle license examiners with the Department of Taxation and Finance was illegal because the qualifications for the two positions were different. There is proof in the record that the transfers were requested in 1940 by the chairman of the Transit Commission and that careful consideration was given to the problem by the Department of Taxation and Finance. The transfers were within the sound discretion of the administrative bodies concerned. (Civil Service *254
Law, § 16; Matter of Stracquadanio v. Dept. of Health,
The orders should be reversed and the petition dismissed, without costs.
LEHMAN, Ch. J., LOUGHRAN, LEWIS, DESMOND, THACHER and DYE, JJ., concur.
Orders reversed, etc.