execution, does not exempt the board from the duty of paying for water furnished the school, though it be a form of taxation; and Lockport City Charter (Laws 1911, c. 870) § 204, having given the water board power to fix the rates, the Board of Education, being a separate corporation, is properly chargeable with the water it uses.

[Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 206, 207; Dec. Dig. § 87.*]

Action for an injunction by the Board of Education of the City of Lockport against William Richmond and others, as Water Commissioners, and others. Submitted on agreed facts. Judgment granting an injunction for plaintiff, and denying other relief.

W. W. Storrs, of Lockport, for plaintiff.

W. S. Caton, Corp. Counsel, for defendants.

POUND, J. This case presents two questions for the determination of the court: (1) Have the defendants, the water board of the city of Lockport and the superintendent of waterworks, authority to shut off from the public schools the water supply from the municipal water supply system of the city for the alleged nonpayment of water rates by the plaintiff, the board of education of said city? (2) Have said defendants authority to require or compel said plaintiff to pay for water furnished from the municipal water supply system of said city to the public schools? The first question is one of remedy; the second question is one of right.

[1] The board of education of the city of Lockport is a municipal corporation, separate and distinct from the city of Lockport, holding title to the school property, disbursing its own funds. Laws 1847, c. 51, as amended. It has never been constituted a part of the city government. Its duties are state, not local. Ham v. Mayor, 70 N. Y. 459. But the supply of water to the public schools is a public necessity and should not be interfered with, even though it should be the duty of the board of education to pay water rents. I think that the remedy of cutting off the water supply for unpaid water rates provided by section 210 of the City Charter (Laws 1911, c. 870) cannot be applied against the board of education of the city of Lockport. The duty of paying the water rates, if any, due from the board of education, is a clear legal duty, purely ministerial, which can probably be compelled by mandamus, without resort to the summary method properly provided for in case of delinquent private corporations and individuals. People ex rel. Johnson v. Barrows, 140 App. Div. 24, 124 N. Y. Supp. 270, affirmed 204 N. Y. 664, 97 N. E. 1113; Board of Water Com'rs v. Corning, 140 App. Div. 11, 124 N. Y. Supp. 268, affirmed 201 N. Y. 570, 95 N. E. 1123.

[2] It is urged that the plaintiff is exempt by law from liability for the payment of water rates. Section 23 of the school act provides: "The title of schoolhouses, sites, lots, furniture, books, apparatus and appurtenances, and all other school property in this act mentioned, shall be vested in said board of education; and the same, while used for or appropriated to school purposes, shall be exempt from all taxes and assess

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

ments, and shall not be liable to be levied upon or sold by virtue of any warrant or execution."

This is an exemption of the property, not of the board. Water rates are not made a lien on property by the Lockport Charter, and while "the imposition of water rates is but a mode of taxation" (Fire Ins. Co. v. Keeseville, 148 N. Y. 46, 42 N. E. 405, 30 L. R. A. 660, 51 Am. St. Rep. 667), I find nothing in the School Act which relieves the board of education from liability for water rates. But the remedy is not by the enforcement of a lien therefor against the school property. The Charter provides (section 204) that:

"The water board shall have power, subject to the approval of the common council, to fix, prescribe, and regulate the water rates and charges for the use of water in the said city."

In the exercise of such power, meter rates have been fixed. I am of the opinion that the board of education, being a distinct municipal corporation and not a mere department of the city government, is properly chargeable at the fixed rates for the water it uses. While it apparently was not the design of the Legislature that the water board should sue the board of education to recover unpaid water rents, or cut off the water from the schools, or sell the school property to pay water rates, it seems clear that the board of education was made separate from the city government, so that it might conduct business with the village and later with the city as a distinct entity, and that it should pay its water rates the same as any other consumer. The question, in a sense, is one of bookkeeping. The money comes from the same ultimate source. The city appropriates money to the board of education for school purposes, and out of those funds the board of education pays its bills, for water as for any other commodity. The Legislature may doubtless compel the city to furnish water to the schools without charge, for the purpose is a public purpose, and in a broad sense a city purpose. Without passing on that question, it remains for the court only to make permanent the temporary injunction which restrains defendants from shutting off the water supply from the public schools, without costs to either party. Prepare decision accordingly.

PEOPLE ex rel. SCHOENWALD v. TREMAN, Superintendent of
Public Works.

PEOPLE ex rel. DENNER v. SAME.

(Supreme Court, Special Term, Erie County. March, 1912.)

1. STATES (§ 53*)-EMPLOYÉS-DISMISSAL-CIVIL SERVICE "LABORER."

Const. art. 5, § 3, provides for the appointment of assistant superin. tendents of public works, for the filling of vacancies in such office, etc., and declares that all other persons employed in the care and management of canals, except collectors of tolls, and those in the department of the state engineer and surveyor, shall be appointed by the inspector of public works, and be subject to suspension or removal by him. ReFor other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

lator, a Civil War veteran, was appointed bridge tender by a deputy surveyor in 1901, working during the season of canal navigation; his services being dispensed with and his pay stopped during the closed season. He was employed for successive seasons until the spring of 1911, when on his reporting for duty his position was refused him. The position of bridge tender is not an office created or recognized by statute, being left to the discretion of the superintendent of public works and the agreement of the parties; nor is the term of employment or compensation regulated by legislation. The position was placed in the noncompetitive class, was exempt from examination, and classed as "laborer." Held that, the word "laborer" being ordinarily used to designate persons whose employment is uncertain as to time and terminates when the works on which they are engaged ends, as distinguished from men who are employed for a definite or fixed term from year to year, relator was therefore subject to removal without the preferring of charges or the granting of a hearing.

[Ed. Note. For other cases, see States, Cent. Dig. §§ 43, 58; Dec. Dig.. § 53.*

For other definitions, see Words and Phrases, vol. 5, pp. 3952-3968; vol. 8, p. 7700.]

2. STATES (8 53*)-EMPLOYÉS-DISCHARGE OF VETERAN.

The statute against summary discharge of a veteran without a hearing does not forbid his removal when the position is abolished, or when his services are dispensed with for want of work or in the interest of economy, or where the term has expired.

[Ed. Note. For other cases, see States, Cent. Dig. §§ 43, 58; Dec. Dig. § 53.*]

3. STATES (§ 53*)—EMPLOYÉS-VETERAN-DISCHARGE-LOCK TENDER.

Relator, a veteran, was employed as a canal lock tender in 1894, and for four years worked only during the navigation season; but from 1900 to the time of his discharge he worked continuously summer and winter at a certain lock, receiving $45 a month during the canal season, and was carried on the pay rolls as a "lock tender," and for the rest of the time he received $10 a month and was on the roll as "watching guard lock." The lock at which he was stationed opened into Lake Erie, and it was necessary to have a person on watch there at all times. Held, that relator's employment was continuous, and therefore he was not subject to discharge without the filing of charges and a hearing.

[Ed. Note.-For other cases, see States, Cent. Dig. §§ 43, 58; Dec. Dig. § 53.*]

Proceedings by the People, on the relation of Albert Schoenwald and of Barney Denner, for mandamus to compel the reinstatement of relators to positions formerly held by them in the Canal Department of the State of New York, from which they were dismissed without the filing of charges and without hearing. Proceedings dismissed in the case of Schoenwald, and writ granted in the case of Denner. Parton Swift, for relators.

Henry W. Killeen, for defendant.

WHEELER, J. Each of these proceedings was instituted by the relators, praying for a peremptory writ of mandamus to restore them to the positions formerly occupied by them in the Canal Department of the State of New York, from which they contend they were illegally dismissed, without charges and without a hearing. Both relators are veterans of the Civil War, and invoke the statutes of the For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 137 N.Y.S.-5

state providing that in the case of veterans they shall not be discharged from the public service, except on charges and after a hearing.

Schoenwald was appointed a bridge tender by the deputy superintendent of canals in the year 1901, and assigned work on one of the canal bridges in the city of Buffalo. He worked in this position of bridge tender for the season of canal navigation, and in the fall, when the canal closed, his services were dispensed with and his pay stopped. The following spring he watched the newspapers, and learned when the canal was to open, and reported to the deputy superintendent, and was again put to work on his old job. This continued each year until the fall of 1910, when the canal closed for the season. In the spring of 1911 Schoenwald again reported for duty and was refused his old position. He advised the superintendent of the fact that he was a veteran and claimed the statutory right to his old place. This was refused. No charges against Schoenwald were ever preferred, and no hearing had. When he was originally appointed bridge tender, nothing was said as to the term of his appointment, and nothing was said about that matter at any of the subsequent times when he resumed work as a bridge tender. The case of Barney Denner is somewhat different in its facts, as will be noted later in the opinion.

Upon the presentation of the relators' petitions at Special Term, the defendant appeared and raised issues of fact which necessitated the trial of the issues before a jury. The two proceedings came before a Trial Term of the court, and after hearing the evidence the trial judge directed a verdict in favor of the defendant. The parties now come before the Special Term, and the counsel for relators moves for a new trial in each case upon a case and exceptions, and it was stipulated that such motion might be heard at Special Term, and for the purposes of the motion the stenographer's minutes of the trial be taken to be the case and exceptions.

The real question to be passed on by this court is whether the hiring of the relator was for the period of navigation of each year, or whether the relator is to be deemed appointed for an indefinite term, performing his duties simply so long as the canal remained open for business. If the hiring was simply for the season's work, and there was a re-employment when canal navigation opened in the spring, then, concededly, the relator's connection with the department terminated when the season's operations ended. If, on the other hand, he is to be regarded as holding over from season to season, then as a veteran, entitled to the benefit of the act forbidding a veteran's discharge from public employment except on charges and after a hearing, the relator has a standing in court for the relief asked. As the facts are practically undisputed, we are of the opinion the question presented is purely a question of law, and no issue of fact remained. for disposition by the jury.

[1] In the first place, it is to be observed that the position of bridge tender is not an office created or recognized by statute. No fixed compensation is provided for the place. The amount to be paid for the services rendered is left to the discretion of the superintendent of

public works and the agreement of the parties. Neither the term of employment nor the compensation to be paid is in any way regulated by legislation. The relator was employed, like the great mass of others engaged in operating the canals, under the general authority given by the Constitution of the state, providing as follows:

"Section 3, article 5. The superintendent of public works shall appoint not more than three assistant superintendents, whose duties shall be prescribed by him, subject to modification by the legislature, and who shall receive for their services a compensation to be fixed by law. They shall hold their office for three years, subject to suspension or removal by the superintendent of public works, whenever, in his judgment, the public interests shall so require. Any vacancy in the office of any such assistant superintendent shall be filled for the remainder of the term for which he was appointed by the superintendent of public works; but in case of the suspension or removal of any such assistant superintendent by him, he shall at once report to the governor, in writing, the cause of such removal. All other persons employed in the care and management of the canals, except collectors of tolls, and those in the department of the state engineer and surveyor, shall be appointed by the superintendent of public works, and be subject to suspension or removal by him.”

This power was exercised, in the main, by the superintendent through the division superintendents, whose acts were subject to the approval of the state superintendent of public works. The relator was, therefore, simply an employé of the department.

In the state civil service rules, adopted by the state civil service commission and having the force of law, the position of bridge tender in the department of public works is placed in the noncompetitive class, exempt from examination, and is classed as "laborer." While this classification is not necessarily controlling on the question as to whether the position is to be deemed held under a continuing employment, it is a circumstance that bridge tenders fall within the designation of "laborers," a name ordinarily used to designate persons whose employment is uncertain as to time, and whose employment terminates when the work on which they engage ends, as distinguished from men hired for a stated and fixed term, or whose employment is continuous from year to year.

We think it the fair inference, to be gathered from all the circumstances of this case, that there was no purpose or intention on the part of the department of public works to employ the relator longer than each season's work lasted; that when the canal closed, and the necessity for his services ended, his employment ended. The fact that he was put to work on the same job the succeeding spring when the canal opened did not change the legal effect of the dismissal when the canal closed in the fall. When the relator was put to work in the spring, it was tantamount to a re-employment by the superintendent, to be terminated in the fall for want of work.

[2] It is perfectly well established that the provision of the statute against the summary discharge of a veteran without a hearing does not forbid his removal when the position is abolished, or where his services are dispensed with for want of work and in the interest of economy. Matter of Jones v. Willcox, 80 App. Div. 171, 80 N. Y. Supp. 420, and cases cited; People ex rel. Steers v. Board of