77 N.Y.S. 691 | N.Y. App. Div. | 1902
Upon the 17th day of April, 1901, Michael C. Murphy, the police commissioner of the city of New York, made and promulgated the following order:
“ Ordered, that Patrolman William J. Lahey, of the Central Office Squad, be and is hereby appointed as a Detective Sergeant, and assigned to duty in the Detective Bureau as such.”
From the date of that order to and including February 1, 1902, the relator performed duty as a detective sergeant in the city of New York. His name appeared upon the payroll of the department from the date of his appointment to and including the month of December, 1901, and he received the pay fixed for detective sergeants during that period. On or about February 1, 1902, the present commissioner of police furnished the municipal civil service commissioners the payroll for the month of January, 1902, which contained the name of' the relator as a detective sergeant, and the same was duly certified as required by law and transmitted. to. the
The question before us upon this appeal is, whether the relator is entitled to the pay of a detective sergeant for the month of January, 1902. Prior to the passage of the charter of the, city of Hew York (Laws of 1897, chap. 378) the position of detective sergeant in the police department was regulated by section 265 of the Consolidation Act (Laws of 1882, chap. 410, as amd. by Laws of 1884, chap. 180, § 4). It was there provided that the board of police commissioners should maintain and continue a bureau which should be called the central office bureau of detectives, and should select and appoint to perform detective duty as many patrolmen (not exceeding forty in number) as the said board of jolice might from time to time determine to be necessary to make this branch of the police force efficient. “ The patrolmen so selected and appointed shall be called detective sergeants and shall be assigned to duty at the central office bureau of detectives, and shall while performing such detective duty be vested with the same authority, and be entitled to receive and be paid the same salary each as sergeants of the police in the city of Hew York; but the board of police commissioners may, by resolution, reduce to the grade of patrolmen and transfer such detective sergeants or any number of them to perform patrol or other police duty, and when so transferred they shall only be entitled to receive and be paid the same rate of compensation each as patrolmen of the police in said city.” From the time of the passage of this amendment to the Consolidation Act to the 1st of January, 1898, when the new charter of the city of Hew York took effect, the detective bureau was organized and continued under this provision. There was no examination required before “ selection and appointment ” to this position, and their continuance in the detective bureau was, by the express provision of the statute, at the pleasure of the board of police. After being selected and appointed by the police board to act as detective sergeants, and while acting in that capacity, they were entitled to receive the pay of a sergeant of police, but upon being transferred back to patrol duty they were then required to do ordinary patrol duty and were to receive the pay of a patrolman of their rank.
The new charter of the city of Hew York, which took effect on January 1, 1898, recognized the position of a detective sergeant as
The provisions of this section, read in connection with the other sections of the charter to which attention has been called, emphasize the distinction between the position of detective sergeant and that of the other permanent positions in the police force, the promotion to which is regulated by the charter. The duty to be performed by these detective sergeants was entirely different from that performed by patrolmen, or in fact by any other member of the police force. The proper performance of the duty of detective sergeant necessarily depended upon a natural aptitude for the work, which could only be determined by experience, and when an officer thus detailed did not show such aptitude or ability, the board of police were authorized to reassign him to duty as patrolman and cancel his assignment to the detective burean. Such a selection was not a promotion in the department as regulated by section 288 of the charter, but it was an appointment to a distinct rank which entitled the officer to increased pay.
By the amendment of the charter which became a law on April 22, 1901, and took effect on the 1st day of January, 1902, a new section was substituted for section 290 of the charter of 1897. The 1st section of the act amending the charter (Laws of 1901, chap., 466) provides that “ Chapter three hundred and seventy-eight of the laws of eighteen hundred and ninety-seven, entitled,” etc., “is hereby amended so as to read as follows.” Section 290 as thus amended provides that “ the police commissioner shall maintain a bureau which shall be called the central office bureau of detectives, and shall select and appoint to perform detective duty therein from the patrolmen or roundsmen as many detectives as the said commissioner may from time to time determine necessary to make that bureau efficient. The patrolmen or roundsmen so selected and appointed, and the patrolmen or roundsmen heretofore selected, appointed or assigned to perform detective duty in the detective bureau, or in what is known as the headquarters squad, and who were acting in said bureau or squad on the first day of April, nine
This amendment confers upon the officers appointed to perform detective duty a permanent rank in the department, whose tenure of office was no longer at the pleasure of the police commissioner, and the individuals to fill that position were designated by the Legislature as those who had been acting in said bureau on the 1st of April, 1901. They were not, therefore, to be appointed by the police commissioner or by any of the authorities of the city of New York. The patrolmen appointed and selected to.perform this duty prior to or on the first of April, 1901, but whose appointment had been revoked prior to the passage of the act, or when such revocation had been made subsequent to its passage and before it took effect on the 1st day of January, 1902, were designated by the act as the .persons who were thenceforth to be detective sergeants, and the positions were thus filled by the Legislature instead of by the city officials: That the officers holding the various positions in the police department in the city of Néw York are .city officers cannot be seriously disputed. The department of which they are members is created by the city charter. Their appointment, removal and compensation are regulated by that charter, and' the compensation of the members of the force is paid by the city. In People ex rel. White v. York (35 App. Div. 300) it was expressly held that the holders of the various positions in the police department are city officers, and that case was affirmed on the opinion below (158 N. Y. 670).
Section 2, article 10 of the Constitution of the State of New York, which took effect on the 1st day of January, 1895, provides that “ all city, town and village officers whose election or appointment is not provided for by this Constitution, shall be elected by the .electors
The relator was appointed a detective sergeant on the 17th day of April, 1901. He alleges, and it is not disputed, that since that time he has performed the duties of that position. His appoint-ment was regular and under the authority of the charter as then in force. He having been regularly appointed a detective sergeant, and having performed that duty, he was entitled to receive the pay of a sergeant of police, and he was entitled to have the payroll of the department with his name upon it properly certified so that he could receive the pay to which he was entitled.
We think that the relator was entitled to a mandamus requiring the board of. civil service commissioners to certify the payroll so that he would be entitled to receive the compensation provided by law; and as this was the relief granted in the court below, the order appealed from should be affirmed, with fifty dollars costs and disbursements. .
Van Brunt, P. J.,, O’Brien, McLaughlin and Hatch, JJ., concurred.
Order affirmed, with fifty dollars costs and disbursements.