Summary
In People ex rel. McNeile v. Glynn (128 App. Div. 257) it was held that a State transfer tax appraiser was subject to removal without a hearing upon charges under the Civil Service Law because the section then permitted the removal at pleasure.
Summary of this case from Matter of Mylod v. GravesOpinion
October 22, 1908.
John J. McGinniss, for the appellant.
James A. Donnelly [ William Schuyler Jackson, Attorney-General, with him on the brief], for the respondent.
The relator was a State transfer tax appraiser in the county of Kings, appointed by the State Comptroller in May, 1905, and removed by the respondent on January 17, 1907. There were no charges of incompetency or misconduct against him, and his removal was without a hearing. He was a member in good standing of Richmond Hook and Ladder Company No. 4 of New Brighton at the time of its disbandment, October 1, 1905, and founds his contention on the provisions of section 21 of the Civil Service Law, which, so far as it affects his rights, provides: "Every person whose rights may be in any way prejudiced contrary to any of the provisions of this section shall be entitled to a writ of mandamus to remedy the wrong. No person holding a position by appointment or employment in the State of New York or in the several cities, counties, towns or villages thereof, who * * * shall have been a member thereof at the time of the disbandment of such volunteer fire department, shall be removed from such position except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges," etc., under which he claims that his removal was wrongful and unjustifiable. The respondent relies upon the provisions of section 230 of the Tax Law, as amended by section 1 of chapter 658 of the Laws of 1900, under the provisions of which the relator was appointed and removed, which provides: "The State Comptroller shall appoint, and may at pleasure remove, not to exceed * * * two persons in the county of Kings * * * to act as appraisers therein," under which it is claimed that the action of the Comptroller in removing the relator was authorized and legal notwithstanding the provisions of the Civil Service Law. The question presented is, which of these statutes controls the removal of a transfer tax appraiser in the county of Kings. The learned Special Term held that the respondent had the right under the laws of this State to remove the relator without charges involving his incompetency or misconduct, and denied the latter's application for a peremptory writ of mandamus. The court says in its opinion that the question is whether the relator held an original independent office or a subordinate position, and upon the authority of People ex rel. McKnight v. Glynn ( 56 Misc. Rep. 35) reaches the conclusion that "under the statute the transfer tax appraisers in Kings county are original, independent officers and not subordinates, and under the decisions are not exempted from removal by section 21 of the Civil Service Law and can be appointed and removed at pleasure by the State Comptroller." In 1888 the Legislature enacted a statute (Chap. 119) entitled "An act relating to employes of the various cities and counties of the State," the provisions of which forbade the removal of an honorably discharged soldier, sailor or marine who served as such in the Union army or navy during the War of the Rebellion, from a position held by appointment in any city or county of the State, who received a salary from such city or county, who was not appointed for a definite term, except for cause shown after a hearing had, exempting from the operation of such statute a private secretary, chief clerk or deputy of any official or department and persons holding a confidential relation to the appointing officer. In 1890 (Chap. 67) this statute was amended and its provisions were extended to veterans of the Mexican war, and the act was made inapplicable to veterans who had served in the Confederate army or navy. In 1892 (Chap. 577) this statute was again amended and its provisions were further extended, among other persons, to persons who had served the time required by law in the volunteer fire department of any city, town or village in the State or who "shall have been a member thereof at the time of the disbandment of said volunteer department." These provisions were re-enacted and amended by chapter 184 of the Laws of 1898. In 1896 the Tax Law was enacted (Chap. 908), section 230 of which provided for appraisers to be appointed by surrogates upon the application of any interested party, including county treasurers and the comptroller of New York city, or upon his own motion, and prescribed their duties. In 1897 (Chap. 284) the State Comptroller was included among the interested parties upon whose application such appointment could be made, and in 1899 (Chap. 76) these provisions were re-enacted. In 1899 the Civil Service Law was enacted (Chap. 370), section 21 of which was in substantially the same language as that contained in chapter 119 of the Laws of 1888, as amended by chapter 67 of the Laws of 1890, chapter 577 of the Laws of 1892, and chapter 184 of the Laws of 1898, all of which chapters were expressly repealed. In 1900 section 230 of the Tax Law was amended by chapter 658 of the laws of that year, and the counties of New York, Kings and Erie were exempted from the operation of the general law by the provision that in such counties "the State Comptroller shall appoint and may at pleasure remove" a stated number of appraisers therein, and the following year the provision quoted was extended to eleven additional counties. (Laws of 1901, chaps. 173, 493.) In 1902 (Chap. 270), and again in 1904 (Chap. 697), the Civil Service Law was amended, the provisions of section 21 as to veterans and firemen not being appreciably changed. In 1902 (Chap. 496), 1904 (Chap. 758), and 1905 (Chap. 368), and again in 1906 (Chap. 567), the Tax Law was amended, the provisions of section 230 giving to the State Comptroller the right to appoint and remove at pleasure appraisers in the counties named not being in any manner changed. In 1905 that section was, so far as here applicable, renumbered to be section 229. Neither the original Tax Law nor any of the amendments referred to, in terms repealed the conflicting provisions existing in the other statute, applicable in the one to appraisers in the counties named, including Kings, and in the other to all persons holding a position by appointment or employment in any of the municipal subdivisions of the State.
No rule of law is more firmly established than that the intention of the lawmakers must be sought, and when ascertained given effect in the construction of statutes; that such intention is to be determined from the language used, which must be given its usual and accepted meaning. Applying this rule to the construction of section 230 of the Tax Law, we find that at the time of its amendment in 1900 there had been in existence continuously for twelve years a general statute forbidding the removal of veterans and for eight years forbidding the removal of certain classes of volunteer firemen in any city or county of the State, holding a position by appointment, except for cause shown after hearing had, with the exception of specified officers, among whom appraisers were not included. The language of the amendment is clear and unambiguous, and does not admit of two interpretations. When the Legislature, with knowledge of the fact that the incumbent of the position, whose appointment by the Comptroller was to be then authorized, if a veteran, or fireman who was a member of a volunteer fire department at the time of its disbandment, or who had served therein the time required by law, could not be removed under the provisions of the Civil Service Law, except for incompetency or misconduct established by a hearing on preferred charges, gave to the Comptroller the right of removal of appraisers appointed by him or his predecessors in office at his pleasure, without excepting either veterans or firemen, it is plainly apparent that their intention was to make the tenure of office of appraisers terminable at the pleasure of the Comptroller, and that the right was intended to be given him, irrespective of the provisions of the Civil Service Law, to remove an incumbent, although a veteran or fireman, at will, and without charges or hearing. There could have been no broader, more comprehensive or better understood language used than that the Comptroller could remove "at pleasure." The absolute right to remove could not be exercised if, as a condition of its exercise, the Comptroller had to prefer and sustain charges against an incumbent of incompetency or misconduct, with the right in the courts to review and set aside his act against the will and pleasure of the Comptroller. Such an inconsistent and anomalous condition was never intended by the Legislature. If such a construction were given, the words "may at pleasure remove" are without meaning and of no effect, a result which the court is not at liberty to declare. The only construction that can be given is that the legislative intent was that there should be no restriction upon the right and power of the Comptroller to remove any appraiser appointed by himself or his predecessors in office, whether such appraiser was a veteran or had been a fireman or not, and that such removal was absolute and final and not the subject of review by the courts.
From these conclusions it follows that a tax appraiser in the county of Kings is not exempted from removal, and is not within the protection of section 21 of the Civil Service Law, and may be removed at pleasure by the Comptroller.
The judgment must be affirmed, with costs.
JENKS, HOOKER, GAYNOR and MILLER, JJ., concurred.
Judgment affirmed, with costs.