Opinion
January Term, 1901.
Joseph A. Burr, for the appellant.
William J. Carr [ Luke D. Stapleton with him on the brief], for the respondents.
Colbert, the relator, who for many years had been a patrolman on the police force of the city of New York, on June 6, 1899, was assigned to duty as a roundsman by the chief of police. He fulfilled the duties of that position till the time of the commencement of this proceeding. The salary of a patrolman under the Greater New York charter (Laws of 1897, chap. 378) is $1,400 per annum, and that of a roundsman $1,500. The police department placed the relator's name on the payroll with the larger salary and transmitted the same to the municipal civil service commission for certification that Colbert "had been appointed or employed or promoted in pursuance of law and of the rules made in pursuance of law." The commissioners refused thus to certify, and the relator moved for a peremptory writ of mandamus requiring the commissioners to do so. The court denied the motion and the relator appeals.
In Brooklyn, roundsmen were enumerated in the composition of the police force in the charter of that city (Laws of 1888, chap. 583, tit. 11, §§ 4, 6) and so became permanent statutory officers. Since the adoption of the original civil service law they have been classified in the regulations as subject to competitive examination, so that no patrolman was eligible to appointment to the higher grade of roundsman without such examination.
Prior to the Greater New York charter there was no specified statutory office of roundsman in the old city of New York, although there were several statutes which in terms referred to patrolmen designated or detailed as roundsmen, as for instance, chapter 188, Laws of 1889, section 1, and chapter 741, Laws of 1894, section 2. It was held, in 1896, in People ex rel. Buckley v. Roosevelt ( 5 App. Div. 168) that there was no such rank as that of roundsman in that city, separate and distinct from the position of patrolman, recognized by law. The first appearance of the office of roundsman in the city of New York which I can discover in the statutes was in section 276 of the Greater New York charter. In section 299 the salary of roundsman was made $1,500, and the salary of patrolman $1,400.
Under the Greater New York charter the office of roundsman has a permanent tenure and a statutory salary, and as a consequence there is a termination of a patrolman's office as patrolman when he becomes a roundsman. It is evident that this constitutes a promotion, both technically and actually.
Section 288 provides that "promotions of officers and members of the police force shall be made by the police board, as provided in section three hundred and four of this act, on grounds of seniority, meritorious police service and superior capacity."
Section 304 provides for civil service examination, for the arrangement of the police force in classes, the filling of all offices by "selection from among those graded highest as the result of said competitive examinations," and that "promotions from the lower grades to the higher grades shall be on the basis of seniority, of merit and of excellence as shown by competitive examination," and requires the transmission by the police board to the civil service commission of the record of each candidate for promotion.
This constitutes a plain and unambiguous declaration that patrolman and roundsman hold separate grades of office and that promotion from one grade to the other shall be the result of competitive examination under the Civil Service Law.
The White Law (Laws of 1899, chap. 370) also redeclared the necessity of such competitive examination in all cases of promotion. (See §§ 7, 13, 15.)
It is conceded in the brief of the relator that his assignment to duty as roundsman was a temporary one. Then he seems to be impaled on the horns of a dilemma, either of which is fatal to his contention. If his assignment was temporary, it did not constitute a promotion to the office of roundsman and thus carry with it the right to increased salary; and, on the other hand, if it was a promotion, it was contrary to the civil service statute of 1899, which took effect two months before the relator's appointment by the chief of police. Any other decision would open the door to an evasion of the Civil Service Law.
The decision of this court in People ex rel. Schelpp v. Knox ( 48 App. Div. 477) is not inconsistent with this opinion. We held that the police board might promote an officer for gallant conduct in the police service in saving at the risk of his life six persons from a burning building for the reason that "no examination can be devised which will present the conditions to furnish a test of the comparative gallantry or heroism of policemen or firemen engaged in the attempt to rescue persons from a burning building."
From these facts it follows that the defendant cannot certify by authority of law that the relator was appointed or employed or promoted in pursuance of law and of the rules made in pursuance of law, as required by section 10 of the act.
For these reasons the order should be affirmed.
All concurred.
Order affirmed, with ten dollars costs and disbursements.