man (sic) although the honorably discharged soldier was a prior incumbent of the office. (People ex rel. Conlin v. Village of Dobbs Ferry, 63 App. Div. 276.)

Section 20 of the civil service law does not entitle a veteran seeking employment as a laborer in the service of the state of New York to a preference in appointment. Such section entitles a veteran to claim a preference in appointment only when his qualifications and fitness have been ascertained as provided in the act and the rules and regulations adopted in pursuance thereof. (Sweet v. Partridge, 66 App. Div. 309.)

VETERAN-PREFERENCE IN RETENTION

The preference accorded to veterans by the constitution and the civil service law extends not only to their appointment but to their retention in employment so long as the position to which they have been appointed exists, and if for reasons of economy it is necessary to remove some of the employees holding the same position, the veteran is entitled to be retained as against all other persons not entitled to a preference, notwithstanding that his superior officer avers that he is the least efficient employee and the one who would be the least missed. (Matter of Stutzbach r. Coler, 168 N. Y. 416, 62 App. Div. 219, 34 Misc. 119.)

A veteran who was superintendent of the general bureau of elections, abolished by chapter 95 of the laws of 1901, which established a board of elections consisting of four commissioners charged with duties theretofore performed by the superintendent, is not entitled to maintain a proceeding under section 21 of the civil service law to require the commissioners of election to assign him to such a position as he may be fitted to fill at the same salary he received as superintendent until after the duties of the various employees of the new board have been prescribed and their salaries fixed and the rights of other veterans who may make similar claim can be ascertained. ex rel. Rodenbogh r. Voorhis, 63 App. Div. 249.)

(People

Where a city constantly employs at its main pumping station six assistant engineers, and occasionally at the auxiliary station six additional assistant engineers, the work and compensation at both stations being identical, an assistant engineer who alone of all the assistant engineers is within the protection of the veteran act is, when the closing of the auxiliary station renders it necessary to reduce the force, entitled to be retained even though his retention will necessitate the discharge of some assistant engineer not a veteran. (Matter of Pratt v. Phelan, 67 App. Div. 349.)

OPINIONS OF ATTORNEY-GENERAL.

ALBANY, N. Y., March 9, 1901

Hon. ERASTUS C. KNIGHT, Comptroller, Albany, N. Y.:

Dear Sir: I beg to acknowledge the receipt of your favor of recent date, asking for my opinion as to whether the commission to classify into grades and fix the salaries of officers and employees of the various charitable and reformatory institutions of the state, provided for by chapter 383 of the laws of 1899, had the power, under the terms of said statute, to specify the qualifications necessary for any person who was occupying a position in one of the state institutions mentioned at the time when said act went into effect, and secondly, whether said commission was empowered, under the terms of said statute, to omit from such classification any position which already existed in. a state institution, subject to the classification, said position having been legally filled by the board of managers prior to the classification.

Chapter 383 of the laws of 1899 amends section 17 of the state finance law, and, so far as material to the questions under consideration, provides as follows:

"The state comptroller and president of the state board of charities, subject to the approval in writing of the governor,

shall classify into grades the offices and employees of the various charitable and reformatory institutions required by law to report to the comptroller, and shall fix the salaries and wages to be paid to such officers and employees. Differences in the expense of living and rates of wages in the localities in which such institutions are situate may be considered."

In replying to the first question it will be necessary to consider separately the status of "officers" and "employees."

As to officers: An examination of the state charities law shows that in many instances some if not all of the officers of institutions are designated by statute, while in some instances, as in the case of the New York state soldiers' and sailors' home, the Craig colony for epileptics, the institutions for juvenile delinquents and the houses of refuge and reformatories for women, it is left to the discretion of the boards of managers to designate the necessary officers and prescribe the duties of the officers. For instance, in the case of the Syracuse state institution for feeble-minded children, the statute designates as officers a superintendent, a treasurer, a steward, a medical assistant and a matron. In the case of the state custodial asylum for feeble-minded women, the officers enumerated are a superintendent and a matron, and in the case of the Thomas asylum, a superintendent, a matron and a physician.

Section 3, article X of the state constitution, provides that, "When the duration of any office is not provided by this constitution, it may be declared by law, and if not so declared, such office shall be held during the pleasure of the authority making the appointment." There is no term fixed by statute for any of the officers referred to, and it follows that under the constitutional provision above quoted their terms of office are during the pleasure of the appointing power. The various officers referred to, who were in office at the time of the passage of this act, had, then, a vested right to retain their offices until removed by the power which appointed them. This power of removal, the legislature had no right to vest in any other body

or person. Neither had the legislature any authority to delegate to any other body or person the power to prescribe or shorten the terms of office. This principle has been settled by the court of appeals in the recent case of People ex rel. Percival v. Cram, 164 N. Y., 166. If, then, the conclusion should be reached that it was the intention of the legislature to permit the Commission to prescribe preliminary qualifications for per sons already in office, such provision would be clearly a violation of the constitutional provision above quoted, as its immediate and necessary effect would be to remove from office the persons who had not such qualifications before the expiration of their terms of office and without any action on the part of the appointing power. It is needless to say that the law will not permit to be done by indirection that which is expressly prohibited by direct action.

In the construction of statutes a legislative intent to violate the constitution is never to be assumed, if the language of the statute can be satisfied by a contrary construction. When the language of an act will bear two constructions, equally obvious, that which accords with the provisions of the constitution is of course to be preferred. It is obvious that a construction can be given to the provision in question which will be entirely reasonable and do no violence to the language employed and still preserve its constitutionality.

Without considering at this time whether the power to "classify into grades" could, under the accepted rules of construction, be held to include the power to fix preliminary qualifications, it is certain that these words do not of necessity imply any such power, and as the latter construction will uphold the statute and relieve it from the constitutional objection, it is our plain duty to adopt it.

As to employees not officers: We come now to consider the status of employees in these institutions who are not officers. It is probable that the section of the constitution which I have quoted affords no protection to this class, but as has already

been shown it is necessary in order to uphold the provision in question to give it an interpretation which excludes the power of the Commission to prescribe preliminary qualifications for officers. In the act the two classes, " officers " and " employees," are placed upon an equality and are referred to together. The same provisions which apply to "officers" are made applicable to "employees." The only consistent interpretation of the statute therefore is, that the Commission has only the same power with respect to "employees" that it has as to "officers." Such an interpretation leads to the conclusion that the legislature did not intend to confer upon the Commission the power to prescribe preliminary qualifications as to employees who were in the employ of the state in the institution in question at the time of the passage of the act.

I come now to consider the latter portion of your question,. which is, whether the Commission had the power to omit from its classification any position which already existed in a state institution, subject to the classification, said position having been legally filled by the board of managers prior to the classification; and, for reasons which will be apparent, I shall, as in my discussion of your first question, consider separately the status of the "officers" and "employees" of and in the institutions.

As to officers: As I have already stated, the statute provides that certain institutions shall have certain officers. For instance, section 65 of the state charities law provides, as to the Syracuse state institution for feeble-minded children, that "the superintendent shall be the chief executive officer of the institution." It also provides (subdivision 2) that the superintendent shall "appoint a steward, a medical assistant and a matron, who, with the superintendent, shall constantly reside in the institution or upon the premises adjoining, and shall be termed the resident officers thereof." Section 66 provides for a treasurer and prescribes his powers and duties.