L. 1909, ch. 15 Taxpayer's Action § 28 phrase "public employee" shall be held to include every person not an officer who is paid from any said treasury. This is substantially section 25 of the original Civil Service Act of 1899. Prosecution of municipal officers: see GENERAL MUNICIPAL LAW, § 51. 4 1 3 5 § 28. Taxpayer's action. Any taxpayer shall have the right2 to bring an action in the supreme court 3 to restrain the payment of salary or other compensation to any person appointed to or holding any office, place or employment in violation of any of the provisions of this chapter, and such right shall not be limited or denied by reason of the fact that said office, place or employment shall have been classified as, or determined to be, not subject to competitive examination; provided, however, that any judgment or injunction granted or made in any such action shall be prospective only, and shall not affect payments already made or due to such persons by the proper disbursing officers, in accordance with the civil service rules in force at the time of such payments. This section was amended by L. 1914, ch. 513. The changes are shown in the footnotes. Before the amendment the section was substantially identical with section 27 of the original Civil Service Law of 1899. Purpose of section. It is probable that this section was enacted to avoid the effect of the decision in Chittenden v. Wurster, (1897) 152 N. Y. 345, 46 N. E. 857, 37 L. R. A. 809, which has been construed as holding that a classification made by the proper authority, even if erroneous and improper, must be first set aside in a direct proceeding before any steps could be taken to declare void an appointment made pursuant thereto. Greene v. Knox, (1903) 175 N. Y. 432, 67 N. E. 910, affirming 76 App. Div. 405, 78 N. Y. S. 779. Scope of section generally. The section authorizes a taxpayer "to bring an action to restrain the payment of compensation to any person appointed to or holding any office, place, or appointment in violation of the provisions of the Act, and in case of the appointment of any officer in violation thereof, that would seem to be the proper remedy." People v. Burt, (1901) 65 App. Div. 157, 72 N. Y. S. 567, affirmed without opinion (1902) 170 N. Y. 620, 63 N. E. 1121. It was intended to bring within the scope of a taxpayer's action cases that grow out of appointments in the noncompetitive class, in which there is no competitive examination, but only such noncompetitive examination as may be prescribed under the civil service rules. Greene v. Knox, (1903) 175 N. Y. 432, 67 N. E. 910, affirming 76 App. Div. 405, 78 N. Y. S. 779. 1 Words "The right of" omitted. 2 Words "shall have the right" new. 3 Words "in the supreme court" new. 4 Words "salary or other " new. 5 Words "and such right" new. 8 28 Taxpayer's Action L. 1909, ch. 15 Public injury as basis of action. The authority conferred by the statute should extend only to acts which, if performed, would result in a public injury. Rogers v. O'Brien, (1897) 153 N. Y. 357, 47 N. E. 456, affirming 7 App. Div. 612, 39 N. Y. S. 1131. So, to bring a case within the statute the act sought to be enjoined should in some way affect the estate, funds or property rights of the municipality, as the legislature intended that the preventive jurisdiction of equity should be invoked in a taxpayer's action only when such was the effect of the act sought to be restrained. Slavin v. McGuire, (1912) 205 N. Y. 84, 98 N. E. 405, Ann. Cas. 1913C 881, affirming 144 App. Div. 910, 128 N. Y. S. 1146; In re Reynolds, (1911) 202 N. Y. 430, 98 N. E. 87, 416, affirming 144 App. Div. 458, 129 N. Y. S. 629. Failure to pass examination as ground of action.— A disqualification, under the Civil Service Law, for an appointment in the public service of a city, applies not only to the individual who has not passed the requisite examination, but also to the city itself; it cannot employ, or receive into its service, a person not eligible under the law, and an action is maintainable, at the suit of a taxpayer, against city officials, restraining them from entering into a contract of employment, in a position where a civil service examination is required, with one who has not passed the examination, or to restrain the payment of the salary of such an employee out of the funds of the city. Peck v. Belknap, (1892) 130 N. Y. 394, 29 N. E. 977, reversing 55 Hun 91, 8 N. Y. S. 265. Title to office. In a taxpayer's action to restrain payment of salaries the court may collaterally consider title to office, but not otherwise. Greene v. Knox, (1903) 175 N. Y. 432, 67 N. E. 910, affirming 76 App. Div. 405, 78 N. Y. S. 779; Peck v. Belknap, (1892) 130 N. Y. 394, 29 N. E. 977, reversing 55 Hun 91, 8 N. Y. S. 265; Rogers v. Buffalo, (1890) 123 N. Y. 173, 25 N. E. 274, 9 L. R. A. 579. The question as to the title to a position cannot be tried in an action to recover salary. Hagan v. Brooklyn, (1891) 126 N. Y. 643, 27 N. E. 265; Hadley v. Albany, (1865) 33 N. Y. 603, 88 Am. Dec. 412; Deering v. New York, (1907) 107 N. Y. S. 934. Moreover, it was not intended by the section to authorize actions to restrain payments of salaries of officers whose appointments are presumptively regular and valid, and who are clearly entitled to their salaries until their titles to office have been properly and directly impeached. Greene v. Knox, (1903) 175 N. Y. 432, 67 N. E. 910, affirming 76 App. Div. 405, 78 N. Y. S. 779. "Whenever there is an actual contest over a title to office that is regular on its face and presumptively valid, the incumbent is entitled to his day in court on the main question, before the payment of his salary can be interdicted, and, as a general rule, that can only be done properly in the action of quo warranto in a court of law where the issues of fact can be decided by a jury." Greene v. Knox, (1903) 175 N. Y. 432, 67 N. E. 910, affirming 76 App. Div. 405, 78 N. Y. S. 779. Action distinguished from mandamus.- A taxpayer's action is inappropriate as a remedy for correcting illegal action on the part of civil service commissioners, as the official acts of the commission in executing the mandates of the statute are not judicial, but are executive and ministerial, and are to be reached, when they become the subject of judicial inquiry, by mandamus. Slavin v. McGuire, (1912) 205 N. Y. 84, 98 N. E. 405, Ann. Cas. 1913C 881, affirming 144 App. Div. 910, 128 N. Y. S. 1146. Action to prevent enforcement of civil service rules. Although a taxpayer's action is allowed by the Code of Civil Procedure (section 1925), and by the General Municipal Law (section 51), such action will not lie to restrain municipal civil service commissioners from recognizing and enforcing an amendment of the civil service rules which they had proposed and had L. 1909, ch. 15 Classification of State Employees § 29 caused to be duly approved. Slavin v. McGuire, (1912) 205 N. Y. 84, 98 N. E. 405, Ann. Cas. 1913C 881, affirming 144 App. Div. 910, 128 N. Y. S. 1146. Authority of city to pay and compromise claims.- By virtue of the Home Rule Act of 1913 (ch. 247, § 20, subd. 5), which empowers every city in the state to pay and compromise claims "equitably payable by the city, though not constituting obligations legally binding on it," it was held in Matter of Christey, (1915) 92 Misc. 1, 155 N. Y. S. 39, that the amount of counsel fees and disbursements incurred by the auditor of the city of Buffalo, a veteran of the Spanish-American war, in an unsuccessful mandamus proceeding instituted to compel his continuance in said office to which he had been appointed and to test the right to remove him therefrom, might properly be repaid by the city, and that such payment did not violate the constitutional provision (Art. 8, § 10) that no city should give any money or property in aid of any individual nor incur any indebtedness except for city purposes. § 29. Publication of examination pamphlet and civil list. The state civil service commission may publish, and sell for a nominal sum, a pamphlet containing sample papers to illustrate to candidates the methods of examination, and containing such other information as in the opinion of the commission will be useful to candidates in making applications and preparing for competition. Such commission may also publish semi-annually, revised to the first day of January or the first day of July preceding, a civil list of the state and county service. Copies of such list shall be sent free to state officers, members of the legislature and such other public officers as the commission deems advisable, and copies shall also be placed on sale at a minimum price sufficient to cover the cost of publication and mailing. Added by L. 1910, ch. 590. ARTICLE 3 CLASSIFICATION OF STATE EMPLOYEES Section 40. Application. 41. Classification of employees in grades. 42. Salaries for each grade. 43. Extra salary or compensation prohibited. 44. Temporary service. 45. Appointments and promotions. The matter contained in this article is not found in the original Civil Service Act of 1899, but comes from L. 1901, ch. 521, and is here consolidated for the first time. The report of the Board of Statutory Consolidation $8 40-42 Classification of State Employees L. 1909, ch. 15 (1907), p. 473, contains a note on sections 40-45 as follows: "This statute, L. 1901, ch. 521, known as the 'Higgins Law,' which provides for the classification, grading and rates of compensation of clerks and employees in the civil service of the state, is practically a second Civil Service Law, and although not so wide in its application, it regulates the civil service of the state no less than the Civil Service Law itself." § 40. Application. The provisions of this article shall apply to all clerks, bookkeepers, stenographers, copyists, messengers and other employees whose duties are of a clerical character in all the state departments, bureaus, commissions and offices, except those otherwise fixed by law, or whose salaries were January first, nineteen hundred and one, more than the maximum fixed herein. This is substantially section 1 of L. 1901, ch. 521. It is here consolidated for the first time. Application to military service.- Section 2, subdivision 3, of the statute excepts from its operation offices and positions in the militia and the military departments, but no such exception is contained in this article of the statute, and it appears to apply to all employees whose duties are of a clerical nature, in all state departments, except those otherwise fixed by law. Op. Atty. Gen. (1901) 291. Application to laborers.- A person employed as a laborer does not come within any of the prohibitions mentioned in article 3 of the statute. Op. Atty. Gen. (1912) 414; Op. Atty.-Gen. (1904) 320. § 41. Classification of employees in grades. All clerks, bookkeepers, stenographers, copyists, messengers, pages or other employees, performing clerical service in the state departments, bureaus, divisions, commissions and other offices excepting deputies, heads, chiefs and assistant heads and chiefs of divisions or bureaus shall be classified in one of the following grades, in accordance with the appropriations made by the legislature for such purpose. This is part of section 2 of L. 1901, ch. 521. It is here consolidated for the first time. The report of the Board of Statutory Consolidation (1907), p. 472, contains a note on this section as follows: "The last sentence of this section has been omitted because it refers to a past act. The classification provided in this section is the classification first made under the act, and is not a provision for subsequent classification. It is, therefore, unnecessary and has been stricken out." Nature of duties as determining grade. The nature of the duties of persons holding positions under the statute, and not the salary, fixes the grade of the incumbent. Rudd v. Cropsey, (1913) 159 App. Div. 275, 144 N. Y. S. 198; People v. Knox, (1901) 58 App. Div. 541, 69 N. Y. S. 602, affirmed without opinion (1901) 167 N. Y. 620, 60 N. E. 1118. § 42. Salaries for each grade. The annual salaries of employees for each grade shall not be to exceed the following: First grade, L. 1909, ch. 15 Classification of State Employees 8 43 three hundred sixty dollars; second grade, four hundred eighty dollars; third grade, six hundred dollars; fourth grade, seven hundred twenty dollars; fifth grade, nine hundred dollars; sixth grade, twelve hundred dollars; seventh grade, fifteen hundred dollars; eighth grade, eighteen hundred dollars; ninth grade, twenty-one hundred dollars; tenth grade, twenty-four hundred dollars. This is section 3 of L. 1901, ch. 521. It is here consolidated for the first time. Reduction of salary. There is no positive statute against reduction of salary, and the power to fix a salary carries power to reduce it. Rudd v. Cropsey, (1913) 159 App. Div. 275, 144 N. Y. S. 198; Sauerbrunn v. Board of Education, (1912) 150 App. Div. 407, 135 N. Y. S. 85, affirmed without opinion (1913) 208 N. Y. 550, 101 N. E. 1120. § 43. Extra salary or compensation prohibited. No person holding a position or employed in any department, bureau, commission or office to which this article applies and for which a definite salary or compensation has been appropriated or designated, shall receive any extra salary or compensation in addition to that so fixed. This is section 4 of L. 1901, ch. 521. It is here consolidated for the first time. Purpose of section. The section was intended to prevent employees rendering clerical services from obtaining compensation under the theory of working over-time, or performing services in addition to their regular duties, and thus to obviate constant claims for extra services by clerks working for stated salaries. Op. Atty.-Gen. (1911) 92, 602; Op. Atty.-Gen. (1901) 313. Were it not for this rule clerks in lower grades might actually receive compensation in excess of those in higher grades, and thus vitiate one of the main purposes of the statute. Op. Atty.-Gen. (1911) 602. When extra compensation allowed. A person who performed labor for a department other than that in which he is regularly employed, and outside of office hours, is entitled to compensation therefor. Op. Atty. Gen. (1912) 414; Op. Atty.-Gen. (1904) 320; Op. Atty.-Gen. (1901) 313; Op. Atty.-Gen. (1909) 589. Nor does the statute prevent the payment of extra compensation to employees in case of a public emergency. Op. Atty.-Gen. (1911) 602. When extra compensation not allowed.- Clerks in the office of the state comptroller, who perform services necessary in the preparation for the tax sale, notwithstanding the fact that such services were performed in addition to their regular duties and outside of office hours, are not entitled to extra compensation therefor. Op. Atty.-Gen. (1911) 92; Op. Atty.-Gen. (1910) 516; Op. Atty.-Gen. (1906) 491. A conductor of teachers' institutes, employed at an annual salary, is not entitled to extra compensation for services rendered as a conductor of summer institutes. Op. Atty.-Gen. (1904) 304. |