129 Misc. 867 | N.Y. Sup. Ct. | 1927
The petitioner was superintendent of water and light in the village of Solvay, an incorporated village of the first class. This village has no separate board of water commissioners or board of light commissioners, but the affairs of those two departments are administered by the board of trustees of the village, under the general powers conferred by section 89, subdivisions 16,17 and 19, and acting as water and light commissioners
No question of fact is raised by the answer of the respondent, and if the Civil Service Law, section 22, applies to the position held by petitioner, his removal was clearly illegal and he is entitled to be reinstated. Section 22, so far as applicable here, reads as follows: “ No person holding a position by appointment or employment in the State of New York or in the * * * villages thereof who is an honorably discharged soldier * * * having served as such in the army * * * of the United States * * * in the world war, or who shall have served the term required by law in the volunteer fire department of any * * * village in the state * * ‘ * shall be removed from such position except for incompetency or misconduct shown after a hearing upon due notice upon stated charges. * * * 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.”'
This provision for the benefit of honorably-discharged soldiers and volunteer firemen was not a part of the original civil service system, but has been engrafted upon it by degrees for the purpose of creating “ a privileged class entitled to preferential employment in subordinate positions in the public service ” (People ex rel. Fonda v. Morton, 148 N. Y. 156,162), and in 1894 this preference was extended so as to prevent removal from office except for cause. Because of the use of the indefinite term “ position ” in the act the courts have been frequently called upon to interpret the meaning of the word, and to determine whether or not the particular position under review was within the contemplation of the statute,
To determine this question in the particular case, reference must be had to the statute under which the position is created, for it must be conceded that a public office cannot be created except by authority of the Legislature. The matter of furnishing water to a village is regulated by sections 220 to 236 of the Village Law and is in general charge of the board of water commissioners, and the matter of furnishing lights by sections 240 to 247 of the Village Law, and is under the charge of a board of light commissioners. It is alleged in the petition and admitted by the answer that in the village of Solvay there were no separate board of water commissioners and no separate board of light commissioners, and that all the functions of said boards were exercised, and still are exercised, by the board of trustees of the village. The Village Law (§ 89, subd. 19) provides that when a village has no separate board of water or light commissioners, the board of trustees has all the powers and is subject to ,all the liabilities and must perform all the duties of a separate board. They, therefore, derive then powers as such from the above-mentioned portions of the Village Law. It is also alleged in the petition and admitted in the answer that the power in the trustees to appoint the petitioner to the position to which he seeks to be reinstated was conferred by sections 223, 224, 243 and 244. Section 223 provides generally that if a proposition to establish water works be adopted, the board of water
It will thus be seen that there is no statutory authority for the appointment of an officer under the title of superintendent of water and light, although there is for the appointment of a superintendent of water. No such office is mentioned in the list of village officers. (Village Law, § 43.) When the power and authority is given to manage and control the water and light departments, keep them in repair and extend their service, it is not probable that it was the intention of the Legislature that all the labor involved should be performed individually by the commissioners, especially as they are required to serve without compensation, and power will probably be implied in the board to employ such assistants as may be required for the proper carrying out of the duties and responsibilities committed to it, although it is a singular fact that in all the other activities of the village such power is expressly given, e. g., the street department (§§ 84, 280), police (§§ 188, 188-a), fire department (§ 200).
Assuming, as I must because of the admission, that the petitioner was regularly appointed to the position, it remains to be determined whether he thereby became a municipal officer charged with governmental functions, or a mere subordinate charged with routine duties under the direction of another. Defendants claim he was an officer and point to section 223 of the Village Law, which reads: “ May appoint and at pleasure remove a superintendent to take charge of the system.” If the words “ take charge of the system ” existed alone in the statute to define the powers and duties of the board and the superintendent there would be some force in defendants’ contention that the superintendent was clothed with discretionary power in the management and control of the water and
My interpretation of this law is that the whole responsibility for the conduct of the water and light system is charged upon the board and that with regard to the water system it is authorized to appoint a superintendent who shall act under their direction and perform the routine and ministerial duties connected therewith. In this regard this case differs from that presented in People ex rel. Johnson v. La Roche (111 Misc. 465), where under the statute creating the position the superintendent was charged with the
My decision in that regard is not affected by what is claimed to be a practical construction of the law by the authorities of this village in that the superintendent hired and discharged employees and fixed their compensation, purchased materials and audited the bills, made up payrolls and caused the employees to be paid. In the absence of anything to the contrary in the law, it may well be that the practical construction acquiesced in for many years will be a guide in determining the extent of the powers conveyed, but I know of no rule of law which will permit of a violation of positive law, however long continued, to effect a repeal or modification of such law. In this case such acts are contrary to the sections already cited and in so far as the auditing of the bills is concerned are also in violation of section 89, subdivision 21, and section 224-a.
Attention is called to the use of the words “ and at pleasure remove,” used in the Village Law (§ 223) in connection with the appointment of a water superintendent, and reliance is had upon the cases of People ex rel. McNeile v. Glynn (128 App. Div. 257) and People ex rel. Johnson v. La Roche (111 Misc. 465) to take this case out of the prohibited removal provided by the Civil Service Law (§ 22). There is apparently an irreconcilable conflict between those cases and the cases of People ex rel. McBride v. Atchinson (68 Misc. 115; affd., 142 App. Div. 927) and Matter of Bennett v. Robbins (211 App. Div. 833; affd., 240 N. Y. 553). In the first of those cases the opinion at Trial Term was written by Judge Pound, now a judge of ,the Court of Appeals; both of those cases are Fourth Department cases and the latter was affirmed by the Court of Appeals. In both of those cases the statute under which the appointments were made gave the appointing power the right to remove the incumbents at pleasure, and in both cases it was held that such statutes should be construed in connection with section 22 of the Civil Service Law so as to give effect to both statutes. I, therefore, feel that I am bound by these latter cases as authoritative decisions, and must, therefore, hold that the removal of the petitioner in this case was illegal.
Peremptory mandamus order as prayed for is, therefore, granted, with costs.