65 A.D. 421 | N.Y. App. Div. | 1901
The plaintiff, on January 31,1899, passed a civil service examination for, and was duly appointed to, the position of topographical
The White Act (Laws of 1899, chap. 370, § 10) authorizes the municipal civil service commission of the city of Hew York to make rules which, by section 6, “ shall have the force and effect of law.” Section 11 requires that the positions in the classified service of the city shall be arranged in four classes, one of which is the competitive class.
Rule 37, promulgated by the municipal civil service commission in pursuance of the act, contains the following: “ Positions in the competitive class are graded according to the fixed limit of compensation as follows *' * * Fourth Grade. * * * Draughtsman. Annual compensation of more than $1,320, but not more than $1,800.”
The defendant contends that under section 1543 of the Greater Hew York charter the “power to fix the minimum salary of the plaintiff was in the Board of Public Improvements and not in the Municipal Civil Service Commission,” while the plaintiff insists that “ the rules of the Civil Service Commission of the city of Hew York, having been approved by the State Civil Service Commission and the Mayor of the defendant, have the force and effect of law,” and that “ the minimum and maximum amounts of compensation to be paid to persons holding positions in the grade in which respondent’s position is classified, having been fixed and established by law, he is entitled to receive, at least, the minimum amount for his services.” In other words, the question involved in this appeal is whether the head of a public department, or the municipal civil service commission, has the power to fix the minimum salary of public employees.
I do not think that it was the intention of the municipal civil
This is in .accordance with the views expressed in People ex rel. Lodholz v. Knox (58 App. Div. 541; affd. without opinion, 167 N. Y. 620) where it was said, Mr. Justice Rumsey writing (pp. 543, 544, 546): “ By section 10 of the White Act the civil service commissioners were called upon to prescribe rules for the classification of the offices, places and employments, but not the salaries, in the -classified service. * * * There is nothing in the law which I can find that authorizes the commissioners to consider the salary to be paid. All they are to classify is the position.”
On the other hand, section 1543 of the Greater New York charter provides -that the number and duties of employees in all departments, “ with their respective salaries * * * shall be such as the heads of the respective departments shall designate and approve; but subject, also, to the revision of the board of estimate and apportionment.” Here is a clear and consistent devolution of power upon the several departments where it naturally belongs.
I find nothing in the repealing section of the White Act which repeals section 1543 of the charter, or transfers to the municipal civil service commission the power conferred xipon heads of departments by that section. Certainly we cannot hold that it was the intention of the Legislature, by the general words of repeal in section 29, to destroy the whole salary scheme of the charter unless the language is specific or unequivocal. The repealing clause of the White Act must be considered as relating only to subjects cognate with its own subject. The salaries of employees of the city are only mentioned incidentally to classification and not otherwise. Consequently it would be a stretch of judicial interpretation to hold
It follows that the salary of the plaintiff remains at $900, as it was fixed by the head of the department at the time of his appointment, and that he cannot maintain this action.
The judgment should be reversed, and, as the situation cannot be changed by evidence, judgment must be ordered for the defendant, with costs.
Bartlett, Woodward, Hirsohberg and Jerks, JJ., concurred.
Judgment reversed and judgment ordered for the defendant, with costs of the trial and of this appeal.