Effect on former statutes. In accordance with the general rule of statu. tory construction that a constitution is deemed to be enacted with reference to previous existing laws and customs, the civil service provision of the constitution is held to contemplate its effectuation, in so far as possible, by the provisions of the Civil Service Law and regulations existing at the time of its enactment. People v. Lyman, (1898) 157 N. Y. 368, 52 N. E. 132, affirming 30 App. Div. 135, 50 N. Y. S. 444, 51 N. Y. S. 641; Chittenden v. Wurster, (1897) 152 N. Y. 345, 46 N. E. 857, reversing 14 App. Div. 483, 43 N. Y. S. 1035; People v. Roberts, (1896) 148 N. Y. 360, 42 N. E. 1082, 31 L. R. A. 399, affirming 91 Hun 101, 34 N. Y. S. 641, 36 N. Y. S. 677, 13 Misc. 448, 34 N. Y. S. 641; People v. New York City Civil Service Boards, (1896) 5 App. Div. 164, 39 N. Y. S. 75. But a pre-existing statute will be declared unconstitutional if it be repugnant to the purpose and spirit of the provision. Matter of Sweeley, (1895) 12 Misc. 174, 33 N. Y. S. 369, affirmed without opinion as People v. Wilson, (1895) 146 N. Y. 401, 42 N. E. 543.

Power of legislature to enact civil service laws. The power of the legislature to enact civil service laws has never been doubted or questioned. People v. Roberts, (1896) 148 N. Y. 360, 42 N. E. 1082, 31 L. R. A. 399, affirming 91 Hun 101, 34 N. Y. S. 641, 36 N. Y. S. 677. And it may amend or repeal such laws and the rules made thereunder, provided it does not contravene the civil service provisions of the constitution. People v. Bingham, (1909) 130 App. Div. 112, 114 N. Y. S. 702, affirmed without opinion (1909) 196 N. Y. 519, 89 N. E. 1109.

II. CONSTRUCTION OF CIVIL SERVICE REGULATIONS

Purpose of civil service law.— The primary purpose of civil service laws and rules is to promote the good of the public service. People v. Kearny, (1900) 164 N. Y. 64, 58 N. E. 14, affirming 49 App. Div. 125, 62 N. Y. S. 1097; People v. Lyman, (1898) 157 N. Y. 368, 52 N. E. 132, affirming 30 App. Div. 135, 50 N. Y. S. 444, 51 N. Y. S. 641; Matter of Weaver, (1911) 72 Misc. 438, 131 N. Y. S. 144; Dalton v. Darlington, (1908) 123 App. Div. 855, 108 N. Y. S. 626; Op. Atty.-Gen. (1894) 296. The Civil Service Law, therefore, was enacted to assist the civil service of the state and not to impede it. Gallagher v. New York, (1906) 115 App. Div. 662, 101 N. Y. S. 229; McBride v. New York, (1900) 56 App. Div. 520, 67 N. Y. S. 550.

General scope of statute.- The Civil Service Law constitutes a general system of statute law applicable to appointments and promotions in every department of the civil service of the state, with such exceptions only as are specified in the statute itself. People v. Roberts, (1896) 148 N. Y. 360, 42 N. E. 1082, 31 L. R. A. 399, affirming 91 Hun 101, 34 N. Y. S. 641, 36 N. Y. S. 677, 13 Misc. 448, 34 N. Y. S. 641; Op. Atty. Gen. (1905) 408.

Rule of construction.- The intent of civil service laws and rules is not to be frustrated by technical or narrow constructions. Dalton v. Darlington, (1908) 123 App. Div. 855, 108 N. Y. S. 626. And the civil service regulations of a city must be construed in the same manner as a statute. Carmody v. Mount Vernon, (1896) 3 App. Div. 347, 38 N. Y. S. 314.

Abrogation of prior laws.- All prior civil service laws and rules were abrogated by the statute. People v. Knox, (1899) 45 App. Div. 518, 61 N. Y. S. 469.

Applicability to city of New York.-The Civil Service Law applies to the city of New York, except as limited or repealed by the provisions of its charter. People v. Kearny, (1900) 164 N. Y. 64, 58 N. E. 14, affirming 49 App. Div. 125, 62 N. Y. S. 1097; People v. Dalton, (1899) 158 N. Y. 175, 52 N. E. 1113, reversing 34 App. Div. 627, 54 N. Y. S. 1112; People v. Fetherston, (1915) 168 App. Div. 416, 153 N. Y. S. 325; Op. Atty.-Gen. (1898) 287. The former Civil Service Law (known as the "White Law,"

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chapter 370, Laws of 1899) did not repeal those sections of the New York city charter (Laws of 1897, chap. 378, §§ 292, 728) which relate to the administration of the police and fire departments, as neither section can be considered an act, rule, regulation or classification for appointment or promotion in the state civil service, or any civil division thereof. People v. Municipal Civil Service Commission, (1900) 30 Misc. 519, 63 N. Y. S. 833. Applicability to legislative bodies.- The general laws relating to civil service have no application to legislative bodies. Shaughnessy v. Fornes, (1902) 172 N. Y. 323, 65 N. E. 168, affirming 73 App. Div. 462, 77 N. Y. S. 223.

§ 2. Definitions. When used in this chapter,

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1. The term commission " or state commission means the state civil service commission.

2. The term "municipal commission" means the municipal civil service commission of a city.

3. The "civil service" of the state of New York or any of its civil divisions or cities includes all offices and positions of trust or employment in the service of the state or of such civil division or city, except such offices and positions in the militia and the military departments as are or may be created under the provisions of article eleven of the constitution.

4. The "state service" shall include all such offices and positions in the service of the state or of any of its civil divisions except a city.

5. The "city service" shall include such positions in the service of any city.

6. The term "appointing officer" signifies the officer, commission, board or body having the power of appointment to subordinate positions in any office, court, department, commission, board or institution.

This is section 2 of the original Civil Service Law of 1899.

State civil divisions.-The civil divisions of the state are the counties and towns, and these with the villages are included in the civil service. Chittenden v. Wurster, (1897) 152 N. Y. 345, 46 N. E. 857, 37 L. R. A. 809, reversing 14 App. Div. 483, 43 N. Y. S. 1035.

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Civil service employees generally. Any person who is employed by the state or a civil division thereof, or by any governmental board or agency, and who receives compensation from the public funds, is within the civil service of the state, provided the service is not a military one. Op. Atty.Gen. (1913) 137. Whether a position is in the civil service is to be determined primarily by the same principles of law which determine whether or not the relation of master and servant exists in private employment. Therefore, the question is largely determined by whether or not the power of appointment and removal is resident in a public officer, and whether or not the salary or compensation of the position is paid out of the public funds. Op. Atty.-Gen. (1913) 317. See also infra, § 8, note.

Term of office. The fact that the term of an office is indefinite does not exempt it from the provisions of the law. Matter of Phillips, (1910) 139 App.

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Div. 365, 124 N. Y. S. 60, affirmed without opinion (1910) 200 N. Y. 521, 93 N. E. 1129. Where a statute prescribes no definite term of office the person appointed for that office is not subject to removal at any time by his superior, as such a statute must be construed in connection with the Civil Service Law, which prohibits the removal of officeholders, except under certain conditions, if the office is within the provisions of that law. People v. Cahill, (1907) 188 N. Y. 489, 81 N. E. 453, reversing 116 App. Div. 885, 102 N. Y. S. 325; Matter of Nammack, (1910) 66 Misc. 523, 123 N. Y. S. 1063. The legislature has power to prescribe that the term of an office shall be during good behavior, and that an officer can be removed only after a hearing and trial, but in the case of public officers such duration of term must proceed from the legislature itself, as the constitution directs, and the power cannot be delegated to the civil service commission, nor can the term of an office be prescribed by its rules. People v. Cram, (1900) 164 N. Y. 166, 58 N. E. 112, reversing 50 App. Div. 380, 64 N. Y. S. 158.

Legislative offices.- The general laws in regard to veteran soldiers and sailors, and the statute which regulates appointments in the civil service, have no application to legislative bodies. The senate and assembly have the power to elect their own officers and attendants, untrammeled by any of the restrictions contained in the Civil Service Law, or any other statute in regard to appointments, and the same principle is applicable to the board of aldermen of New York city. Shaughnessy v. Fornes, (1902) 172 N. Y. 323, 65 N. E. 168, affirming 73 App. Div. 462, 77 N. Y. S. 223.

State military service. Not only does the title of the Civil Service Law distinctly indicate, but the express provision of the law is, that it shall have no reference to positions and offices in the militia and the military departments of the state. Bryant v. Palmer, (1897) 152 N. Y. 412, 46 N. E. 851, affirming Goedel v. Palmer, (1897) 15 App. Div. 86, 44 N. Y. S. 301; People v. Martin, (1900) 53 App. Div. 19, 65 N. Y. S. 457; Op. Atty.-Gen. (1906) 365. Armorers and janitors of armories of the national guard are in the military service and not in the civil service of the state. Bryan v. Palmer, (1897) 152 N. Y. 412, 46 N. E. 851, affirming Goedel v. Palmer, (1897) 15 App. Div. 86, 44 N. Y. S. 301; Op. Atty.-Gen. (1906) 365. Chief clerks as well as other clerks in the staff department of the national guard are in the military and not the civil service of the state. Op. Atty.-Gen. (1895) 111. Employees of the bureau of records of the war of the rebellion are members of a military bureau and are not in the civil service. Op. Atty.-Gen. (1910) 692.

But the New York monuments commission is not a department of a military character, and clerks and employees of such commission are not in the military service, but in the civil service of the state, and must be appointed in accordance with the provisions of the Civil Service Law. Op. Atty.-Gen. (1913) 365.

In Op. Atty.-Gen. (1901) 291, subdivision 3 of this section was cited in contrast with section 40, infra, in regard to the applicability of the latter to the military service. See infra, § 40, note.

Keeper battlefield reservation. The caretaker of the Stony Point Battlefield State Reservation is not subject to the Civil Service Law. Op. Atty.Gen. (1905) 402.

State board of pharmacy.— The state board of pharmacy is a state board and the members thereof are public officers, but their appointees are subject to the provisions of the Civil Service Law. Op. Atty-Gen. (1903) 510.

Board of quarantine commissioners and port wardens.- Subordinates employed by the board of quarantine commissioners, the board of port wardens, and the department of the shore inspector, are in the public service, and their appointment is subject to the rules of the civil service commission. Op. Atty.-Gen. (1894) 78.

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District attorney.— A district attorney is a county officer and is not subject to the provisions of the Civil Service Law. People v. Taylor, (1896) 17 Misc. 505, 40 N. Y. S. 321.

Assistant district attorney.—It is not practicable to ascertain the merit and fitness of an assistant district attorney by a civil service examination, and his office does not come within the provisions of the Civil Service Law. People v. Taylor, (1896) 17 Misc. 505, 40 N. Y. S. 321.

Clerk of court.- The clerk of the police court of the city of Syracuse is a member of the civil service of the city and not of the state. People v. Tobey, (1897) 153 N. Y. 381, 47 N. E. 800, modifying 8 App. Div. 468, 40 N. Y. S. 577, 17 App. Div. 621, 44 N. Y. S. 1127.

Employees of clerk's office. By chapter 513, Laws of 1909, the clerk's office of Richmond county was changed from a fee to a salaried office, and it was held that the county clerk, in the exercise of the power of appointment, so far as the efficient administration of his office permitted, could retain those prior incumbents who had worked in the office during the year 1909, and who had passed a noncompetitive civil service examination. "If the intention of the legislature went beyond this, and designed to perpetuate the employment of all temporary and accidental clerkships which under the fee system had been engaged in the office during the year 1909, regardless of the permanent needs of the office, such an attempt would be unconstitutional. The act confers upon the county clerk the authority necessary to his office, namely, the right of appointment, and the power of removal, subject to the provisions of the Civil Service Law." People v. New York, (1910). 128 N. Y. S. 776.

Assistant deputy sheriffs, jail keepers and matrons in Kings and Queens counties. The provisions of article 5, section 9, of the state constitution and section 6 of the Civil Service Law do not extend to assistant deputy sheriffs, jail keepers and matrons in the county of Kings, since their duties relate to civil as well as criminal business, and they are exempt from civil service regulations, but in cases where the duties of appointees relate solely to criminal matters, they must be appointed in accordance with civil service rules. Flaherty v. Milliken, (1908) 193 N. Y. 564, 86 N. E. 558, reversing 127 App. Div. 932, 111 N. Y. S. 1119; People v. Milliken, (1908) 193 N. Y. 675, 87 N. E. 1125, reversing 127 App. Div. 468, 111 N. Y. S. 551. The decision in the Flaherty case was applied to those holding similar positions in the sheriff's office of Queens county. Op. Atty.-Gen. (1910) 688.

Subpoena server.- The position of subpoena server in the office of the district attorney of New York county is a strictly confidential position, and is exempt from the operation of the act restricting the removal of veterans from the public service. People v. Gardiner, (1899) 157 N. Y. 520, 52 N. E. 564, reversing 33 App. Div. 204, 53 N. Y. S. 451.

Commissioner of jurors.- Under the charter of Greater New York the commissioner of jurors of the borough of Manhattan is a city officer, and a clerk in his office who was removed after chapter 186 of the Laws of 1898 had gone into effect, without the filing of written reasons for such removal or an -opportunity to explain, is entitled to reinstatement by a peremptory writ of mandamus. People v. Welde, (1899) 27 Misc. 697, 59 N. Y. S. 474; People v. Welde, (1899) 28 Misc. 582, 59 N. Y. S. 1030.

Police clerk's assistant.-There can be no doubt as to the nature of the duties of a police clerk's assistant, or that the position is one for which it is practicable to determine by competitive examination the merit and fitness of an applicant therefor in the city of New York, especially where such position was in the competitive class under former rules of the municipality. People v. Knox, (1899) 45 App. Div. 518, 61 N. Y. S. 469.

Court appointees.— Appointments in the City Court and Court of General Sessions of the city of New York are under the jurisdiction of the civil serv. ice commission of the city. Op. Atty.-Gen. (1897) 330.

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County jail physicians.- Physicians to county jails are within the classified service of the statute, and such appointments must be made in accordance therewith. Matter of Phillips, (1910) 139 App. Div. 365, 124 N. Y. S. 60, affirmed without opinion by (1910) 200 N. Y. 521, 93 N. E. 1129.

Board of elections.-The board of elections of the city of New York, appointed by the board of aldermen, is, so far as regards the necessity for certification of the salary of an employee by the municipal civil service commission, a local rather than a state board; hence the salary of an employee must be certified and approved by that board, and certification by the state civil service commission is not sufficient. People v. Prendergast, (1912) 206 N. Y. 405, 99 N. E. 1047, reversing 152 App. Div. 104, 136 N. Y. S. 688. The employees of the board of elections of New York city, although appointed and paid by the city, perform a state service, and are subject to the jurisdiction of the state civil service commission. People v. Prendergast, (1912) 152 App. Div. 104, 136 N. Y. S. 688, reversed on other grounds by (1912) 206 N. Y. 405, 99 N. E. 1047.

Health officer.- The health officer of the city of New Rochelle is a city and not a state official. Op. Atty.-Gen. (1899) 228.

Assessor. The position of assessor in New York city is not a subordinate one, and is not affected by the preference given to veterans under the civil service statute. People v. Van Wyck, (1899) 157 N. Y. 495, 52 N. E. 559, affirming 33 App. Div. 318, 53 N. Y. S. 914.

Children's Aid Society employees.- Employees of the Children's Aid Society of Rochester are not in the civil service of Monroe county or of the state. Op. Atty.-Gen. (1906) 486.

Employees of Croton aqueduct commission.-Persons employed by the Croton aqueduct commission are employees of the city of New York and not of the state, and are subject to the rules and regulations of the city civil service. People v. Civil Service Supervisory, etc., (1886) 41 Hun 287, 2 N. Y. St. Rep. 656, affirmed without opinion by (1886) 103 N. Y. 657.

Bridge commissioner.- A bridge commissioner of New York city is a local municipal officer, and he does not hold a subordinate position within the provisions of the civil service statute giving a preference to veterans. People v. Nixon, (1899) 158 N. Y. 221, 52 N. E. 1117, affirming 32 App. Div. 513, 53 N. Y. S. 230.

Bridge tender.- A bridge tender of a bridge operated at the expense of a city, but under the control of the superintendent of public works, is a state employee and not subject to the city civil service regulations. Matter of Agar, (1897) 21 Misc. 145, 47 N. Y. S. 477.

Employees of state educational institutions.- Employees of the medical department of the University of Buffalo, the State College of Forestry at Cornell, the State Veterinary College at Cornell, and the College of Agriculture at Cornell, are not in the civil service of the state. Op. Atty.-Gen. (1899) 230.

School teachers.- A teacher of public schools, who is employed by a board of education, is not within the provisions of the Civil Service Law, even though he be a veteran. Lidenour v. Board of Education, (1896) 15 Misc. 418, 37 N. Y. S. 109. An assistant teacher in the public schools of the city of New York, who possesses an unrevoked license to teach in any public school in the state, is not a public officer but an employee, and if discharged without cause may maintain an action for his salary. Steinson v. Board of Education, (1901) 165 N. Y. 431, 59 N. E. 300, affirming 49 App. Div. 143, 63 N. Y. S. 128.

Librarians. The position of law librarian in the fifth judicial district, located in the city of Utica, is in the civil service of the state, and having been classified in the competitive class, can be filled only by competitive examination. Op. Atty.-Gen. (1913) 317. But employees of the Brooklyn