288 N.Y. 97 | NY | 1942
The petitioner, Frank J. Rohr, was appointed in 1937 by the County Clerk of Erie county to a position in the Mortgage Tax Bureau of the County Clerk's office. It is the duty of the County Clerk of Erie county, pursuant to the provisions of the Tax Law (Cons. Laws, ch. 60), to collect the recording tax on mortgages. Section
The petitioner claims the protection afforded by section
Though the title of "cashier" has been attached to the position occupied by the petitioner, the duties of the holder of the position *102
are not confined to the handling of moneys. The County Clerk alleges that the cashier "is entrusted with the handling of monies received during the course of the day and further entrusted with the explicit duty of preparing deposit slips and depositing such sums in the bank," but it is not disputed that at least one other employee holding a position in the Mortgage Tax Bureau, which is entitled "examiner" and which is in the competitive class, shares these duties with the petitioner and, like the petitioner, receives and makes deposits of money and has access to the office safe; and it is also not disputed that in the course of the performance of his duties the petitioner has been required to examine all papers and documents filed or recorded in the office of the County Clerk of Erie county for "the purpose of determining whether or not any of such papers or documents disclose any interest, or lien, subject to the payment of a mortgage tax to the State of New York or under which a mortgage tax may be collected pursuant to the provisions of the Tax Law of said state." Though the County Clerk is responsible for the collection of the recording tax and may retain out of the moneys collected the necessary expenses of collection including the hire of clerks and assistants, the persons appointed to positions in his office are not his employees but are in the service of the State, are paid out of the moneys of the State and hold positions of trust in the "civil service" of the State as defined in section
Appointments, promotions and removals of such employees are subject to the provisions of the Civil Service Law. Such positions must be classified in the competitive class unless they are placed in the exempt class in accordance with section 13 of the Civil Service Law upon a finding by the Civil Service Commission that a competitive examination is not practicable. The Civil Service Commission has determined that such an examination is practicable. Upon this record there might perhaps be doubt whether the Civil Service Commission could reasonably find that a competitive examination would not be practicable. Certainly the court cannot say that the finding of the Civil Service Commission that a competitive examination is practicable is arbitrary. Upon the transfer of the position occupied by the petitioner to the competitive class, the petitioner became entitled to the same security of tenure he would *103
have had if he had been appointed after competitive examination. (Matter of Fornara v. Schroeder,
The courts below have so held, but at the same time they have held that the Civil Service Law does not afford to a person holding the position of cashier even in the competitive class any substantial right to tenure of his position. Though the power to remove from positions in the civil service is limited by section 22 and though it is provided in subdivision 2 of that section that no employee "holding a position in the competitive class * * * shall be removed except for reasons stated in writing, * * * and shall be allowed a reasonable time for answering the same in writing," yet the same subdivision also provides that "nothing in this section shall be construed to apply to the position of private secretary, cashier or deputy of any official or department or change the provisions of section thirteen of the civil service law." If that section is construed according to its letter, then no person may be appointed to the position of cashier without a competitive examination where such examination is practicable, yet the person so appointed is not entitled to the security of tenure assured to other holders of competitive positions under the provisions of section 22.
The petitioner claims that removal is illegal not only because no charges had been made against him but because his removal has been "affected or influenced" by his "political opinions or affiliations," in violation of section
True, a statutory prohibition against removal of the petitioner because of party affiliation would probably afford very unsubstantial protection, if he may be removed though no charges have been made against him and without any statement of the reasons for his discharge. Perhaps it would be unreasonable to ascribe to the Legislature an intention to create such an anomalous situation, but it would be at least equally unreasonable to ascribe to the Legislature an intention to permit the removal of a person holding a position in the competitive class without charges and without reason given for his removal. Yet, as we have said, if section
To set forth in detail the history of the provisions of section 22 would unduly extend this opinion. In its present form subdivision 1 refers to removal of veterans and volunteer firemen; subdivision 2 refers to removals generally. In their original form these provisions were combined in a single section without subdivision. Then, as now, the provision in regard to the "position of private secretary, cashier or deputy" came at the end of the section. In 1915, while the statute was in that form, the Attorney-General rendered an opinion in which he said, "The exception of deputies, cashiers, and secretaries from the operation of section
The order should be modified to the extent that the petitioner's application for an order directing his reinstatement is granted and as so modified affirmed, with costs to the petitioner-appellant in all courts against the County Clerk of Erie county.
LOUGHRAN, FINCH, RIPPEY, LEWIS and CONWAY, JJ., concur; DESMOND, J., taking no part.
Ordered accordingly. *106