151 N.Y.S. 419 | N.Y. Sup. Ct. | 1915
Bichard Murray was summarily removed from the position of chief electrical engineer at the pumping station at North Tonawanda, N. Y., hy '
The Civil Service Law (Laws of 1909, chap. 15, § 22, as amd. by Laws of 1910, chap. 264) provides that such volunteer firemen shall not be removed from such an employment “ except for incompetency or misconduct shown after a hearing upon due notice upon state ! charges.” Murray claims that his rights have been prejudiced contrary to the provisions of this section. If so, he is entitled by the terms thereof to a writ of mandamus to remedy the wrong.
The water board is authorized by the charter of the city of Lockport (Laws of 1911, chap. 870, § 202) to appoint a superintendent of water works “ and from time to time such employees and assistants as may be necessary for the management, operation and care of the water works. Said superintendent, employees and assistants shall severally hold their offices or positions during the pleasure of the water board.”
The city charter further provides (§ 375) that “ all acts or parts of acts inconsistent with this act are also hereby repealed so far as they affect the city of Lockport. ’ ’
It was held in People ex rel. McNeile v. Glynn, 128 App. Div. 257, that where a statute of later date than the Civil Service Law authorized the state comptroller to appoint and at pleasure remove tax appraisers the later enactment controlled and that the only construction that could be given to the later statute is that
The city charter provides (§ 376): “ The repeal hereby of any act or part thereof shall not affect or impair any act done, offense committed, or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred, prior to the time such repeal ■ takes effect, but the same may be enjoyed, asserted, enforced, prosecuted or inflicted as fully and to the same extent as if such repeal had not been effected.”
. By the terms of this saving clause, the repeal of the provisions of the Civil Service Law relative to the removal of firemen and the enactment of the charter provisions that employees of the water board should hold during the pleasure of the board, did not affect or impair Murray’s right to a hearing before removal. Unquestionably the legislature had ample authority to provide for summary removals from office, but it may in its discretion restrict the appointing power and protect the faithful employee from arbitrary action. It may with propriety extend such protection only to those who accepted employment in reliance thereon while placing no restriction on future remov
But it is urged that Murray was not legally designated chief engineer because he took no promotion examination and that he has no valid title to' the position and so is not within the protection of the Civil Service Law. People ex rel. Hannan v. Board of Health, 153 N. Y. 513. There are three positions at the North Tonawanda pumping station: chief engineer, first assistant engineer and second assistant engineer. These positions were classified by the municipal civil service commission for the purpose of competitive examinations in one group, as electrical engineer. The chief engineer and the two assistants took the same examination and were appointed from the same eligible list. Murray was the second assistant when he was promoted to the position of chief engineer. The first and second assistant engineers receive ninety dollars per month. The chief engineer receives ninety-seven dollars per month.
The Constitution of the state of New York provides (Art. V, § 9) that “ appointments and promotions in the civil service of the state and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness, to be ascertained so far as practicable by examinations, which so far as practicable shall be competitive.”
But there is no promotion here requiring a competitive- examination unless the increase in salary from $1,080 to $1,164 per annum is such a promotion. Positions are classified for the purposes of promotion into groups and grades. The character of the work to be done determines the group and the compensation determines the grade. Promotions may be made within the group and grade without examinations. State Civil Service Bules. The tests established for the
I do not find that positions in the municipal civil service of the city of Lockport have been graded by salary. In the state service, grade 6 includes positions paying more than $900, but not more than $1,200 per annum, according to the most recent copy of the rules of the state civil service commission I have been able to consult.
The municipal civil service commission might in its discretion have required an examination for the position of chief engineer which involved essential tests or qualifications different from or higher than those required for original- entrance to the position of assistant engineer. If it had done this, a promotion examination would have been required. Civil Service Law, § 16. It has failed thus to grade or group the different positions. They are in the same group and the same grade. The small increase in salary and the slight change in duties did not in the judgment of the municipal civil service commission constitute such a promotion as to call for further competitive tests or make such tests practicable. The appointing power should have some latitude in assigning the electrical engineers to duty and the designation of a chief engineer from either of two assistants, both of whom have. passed the necessary examination, is allowed by the Civil Service Law and rules. In a civil service sense they all hold the position of electrical engineers.
Let a peremptory writ of mandamus issue restoring Murray to his position and directing the payment of his compensation from the date of his removal, with costs in the sum of twenty-five dollars and disbursements.
Ordered accordingly.