Matter of Eagan v. Livoti

*467 Lewis, J. In a proceeding under article 78 of the Civil Practice Act the question is presented whether, in determining the seniority right of a county employee under section 31 of the Civil Service Law (Cons. Laws, ch. 7), a period of prior service in state employment may be added to a subsequent period of county employment. The petitioner was appointed to the position of graphotype operator in the Motor Vehicle Bureau of the State Department of Taxation and Finance on May 17, 1926. In June, 1928, she was appointed to the position of file clerk in the same state bureau. On October 1, 1929, she left her state employment and for the first time entered county employment, taking the position of messenger and clerk, grade 3, in the office of the Clerk of the County of Queens. The title of the position last mentioned was later changed to general clerk, grade 4. On December 31, 1939, the Board of Estimate of the City of New York, because of a statutory curtailment of functions assigned to the Clerk of Queens County, abolished certain positions in that office, including the positions of five general clerks, grade 4. The petitioner, who was one of the five persons holding positions thus abolished, was suspended in accord with section 31 of the Civil Service Law, which provides: “ Any person who while holding a position in the competitive class under the civil service law or rules, has been separated from the service through the abolition of a department, office or institution, or any section, bureau or division thereof, or through the consolidation of two or more departments, divisions, offices or bureaus, or whose position is abolished or made unnecessary, through no delinquency or misconduct on his part shall be deemed to be suspended without pay, which suspension shall be made in the inverse order of original appointment in the service, and shall have his name entered upon a preferred list for the position last held by him or any other position having the same or similar requirements for entrance * * (Emphasis supplied.) *468 At the time of the abolition of the five positions of general clerk, grade 4, and the consequent suspension of the petitioner, two of the incumbents of the abolished positions, Minnie Daly and Americo Serra, were retained in service. They had been appointed to positions in the office of the Clerk of Queens County in August, 1927, and May, 1928, respectively — dates earlier than the petitioner’s original appointment to county employment in that office in October, 1929. However, their original appointments in county employment were subsequent to the date of petitioner’s original appointment to a state position in May, 1926. • Upon these facts the petitioner contends that, in determining her seniority under section 31 of the Civil Service Law, her rights were prejudiced by the fact that the period of her prior state employment was not added to her subsequent county employment — thereby depriving her of the right she now claims, viz., her retention in service in place of Minnie Daly or Americo Serra, either of whom had longer service for the county of Queens than the petitioner but shorter total service, if the petitioner’s prior state employment and her subsequent service for the county of Queens are combined. The order of the Appellate Division reversed the order of Special Term dismissing the petition herein, and directed the reinstatement of the petitioner to the position of general clerk, grade 4, in the office of the Clerk of the County of Queens as of December 31, 1939, and payment of her salary from that date to the date of reinstatement. In reaching the conclusion that the order before us is erroneous, we have examined the record in the light of the settled rule that “ The Civil Service Law does not create vested rights, preserved by the Constitution against legislative interference, in those who obtain positions under it.” (People ex rel. Perrine v. Connolly, 217 N. Y. 570, 576.) As no person has a vested interest in any rule of law or legislative policy which entitles him to have it remain unaltered for his benefit (Preston Co. v. Funkhouser, 261 N. Y. 140, 144; New York Central R. R. Co. v. White, 243 *469 U. S. 188, 198; Chicago & Alton R. R. Co. v. Tranbarger, 238 U. S. 67, 76), so in the present case the petitioner’s right to tenure in civil service has been altered in the course of years-by statutory changes which the Legislature, as an arbiter of public policy, chose to make. By the adoption of section 6 of article V of the State Constitution the merit system as applied to civil sendee became a fundamental principle of the government of this state. The brief constitutional provision closes with the sentence, “ Laws shall be made to provide for the enforcement of this section.” To that end the Legislature, in extending the benefits of the Civil Service Law to employees of the state, cities and civil subdivisions has not established throughout the state a general, single class of unified civil service. For reasons which relate to matters of administration it has separated the various types of service according to the field of employment. At the time the petitioner entered civil service in 1926, the Civil Service Law provided for a division of civil employment within the state into two services. “ State service ” then included “ all such offices and positions in the service of the state or of any of its civil divisions except a city;” “ city service ” included “ such positions in the service of any city.” (L. 1899, ch. 370, § 2, subds. 4 and 5.) In her position in the State Department of Taxation and Finance the petitioner’s salary was paid from state funds and her employment was in a department which functioned throughout the state. Clearly she was then in “ state service.” (Civil Service Law, § 2, subd. 4.) In 1938, however, the Civil Service Law was amended (L. 1938, ch. 603) by providing for the division of civil employment within the state into three services instead of two which formerly existed. The amendment provided in part.: “ 4. The ‘ state service ’ shall include all such offices and positions in the service of the state. “ 5. The ‘ city service ’ shall include such positions in the service of any city. *470 “ 6. The service of a ‘ civil division ’ shall include all such offices and positions in any other subdivision of the state.” The petitioner was not suspended until December 31, 1939, subsequent to the date (April 9, 1938) when chapter 603 of the Laws of 1938 became effective. On the date of her suspension and since October 1, 1929, the petitioner was employed in the Clerk’s office of the County of Queens. Her salary was paid from county funds. Her duties were those connected with county affairs. We think it clear that she was an employee of the County of Queens. Accordingly, under the statute effective on the date of her suspension the “ service ” in which the petitioner was employed was not “ state service,” nor was it “ city service ”— she was in a service separately designated by statute as “ the service of a ‘ civil division ’ * * * of the state.” (Civil Service Law, § 2, subds. 4, 5, 6.) Her employment from May 17, 1926, until October 1, 1929, in “ state service ” gave her no vested rights connected with her civil service status which survived the Legislature’s change in policy as declared by chapter 603 of the Laws of 1938. (People ex rel. Perrine v. Connolly, supra, p. 576.) The petitioner’s seniority right under section 31 may not be established by adding together the periods of her state and county employment —• two divisions of civil service having features so distinctive that the Legislature chose to separate them as a matter of public policy. (L. 1938, ch. 603; Matter of Stehle v. McGoldrick, 285 N. Y. 543. See, also, Matter of Schaefer v. Rathmann, 237 App. Div. 491, 493, 495; affd., 262 N. Y. 492; Matter of Horn v. Gillespie, 267 N. Y. 333, 336, 338; Matter of Canfield v. Greene, 250 App. Div. 181, 183-186.) In the administration of section 31, which requires that suspension of an employee, such as the petitioner, whose position has been abolished, “ * * * shall be made in the inverse order of original appointment in the service,” the employee’s right of seniority depends upon the date of the original appointment in the particular service, defined by the Civil Service Law (§2, subds. 4, 5, 6, as amd. by L. 1938, ch. 603), in which the employee is engaged at the time of such suspension. *471 In construing the word “ service ” as employed in the statutory sentence last quoted above, Presiding Justice Sears, later a member of this court, stated: “ An interpretation of it [the word ‘ service ’] which would make it include any position in the competitive class of the civil service of the state and its civil divisions, including its cities, without reference to the position the employee finally occupied, would not bring about results apparently contemplated by the legislators in enacting the statute.” (Matter of Schaefer v. Rathmann, supra, p. 493.) In the proceeding before us the employment in which the petitioner was engaged on the date of her suspension was for the county of Queens. That employment was in “ the service of a ‘ civil division.’ ” In determining her right of seniority under section 31 of the Civil Serivice Law she may not add to the term of her employment in the office of the Clerk of Queens County, the period of state employment previously served by her which the Legislature has expressly designated as a separate “ state service.” The petitioner’s original appointment on October 1, 1929, to a position in the office of the Clerk of Queens County was subsequent to the original appointment of either of the two employees who were retained in that employment after December 31, 1939, and whose place is now demanded by the petitioner. It follows that the petitioner’s suspension was made “ * * * in the inverse order of original appointment in the service ” in accord with the requirements of section 31 of the Civil Service Law. The order of the Appellate Division should be reversed and that of the Special Term affirmed, without costs.