People ex rel. Pine v. Martin

Upon the 19th day of April, 1899, chapter 370 of the laws of that year took effect. That statute was in effect a codification of the Civil Service Law and the Veterans’ Acts, and it was therein provided that the act should not apply to the military service. It is claimed, however, that the saving clause in that act preserves to the relator the right to his reinstatement. The saving clause found in section 29 is undoubtedly broad and assumes to save all rights accrued, and provides that they may be asserted or enforced as fully *21as if the .former acts had not been repealed. By that act, however, the military service was absolutely divorced from the rules governing the civil service. To sustain this order we must hold that, notwithstanding the plan to exempt the military service from the rules of the civil service, they were nevertheless to be subject to those rules to the extent of reinstatement where an employee had, under the old statute, been wrongfully discharged. It cannot be that the statute would require the reinstatement of a man to be the next moment removed. This, to our minds, would be such an inconsistency as not to come within the fair interpretation of the saving clause of the statute. If the relator were wrongfully discharged he had a right to his salary from the first day of April to the nineteenth day of April, when the act of 1899 took effect. That right was preserved to him, but that right alone. This construction is consistent with the evident intent and spirit of the act of 1899, and the saving clause thereof is fairly satisfied.

The question remains then, can the order be sustained as to that part which directs the appellant to pay to the respondent his salary between April 1 and April 19,1899 ? We think not for two reasons: First. We are cited to no authorities which impose upon the appellant a personal liability for this compensation. The pay of the armorer is a charge upon the county. It is true that it has to be certified by the captain. We know of no statute, however, which makes the captain liable personally where he has refused to certify, or where he has unlawfully discharged an employee.

Second. Assuming that the captain is not personally liable, should the order be modified so as to require him to certify the relator’s compensation for the time of his unlawful discharge % This brings us to the proposition which was mainly urged upon the argument, to wit, that the Veterans’ Acts of 1894 and 1896 never applied to the military service. The acts by their terms apply to every department of the State of New York, so that, within the letter of the statute, the relator was entitled to the benefit of the acts. We are impressed, however, with the incongruity of a military department restricted by civil service regulations. No disciplinary power is given to the captain nnder the Military Code in case of a neglect of duty. That the armorer should have the protection of the Veterans’ Acts and could hold his office in defiance of the will of the commander at the *22armory would be subversive of military discipline. The method of his appointment is specified in the Military Code, and the power of appointment there is unrestricted. The act of 1899 itself, including the Yeterans’ Acts as a part of the civil service of the State, and exempting therefrom entirely the military service, is an index of the legislative view and of the legislative intention in the passage of those acts. We are of the opinion that the Yeterans’ Acts, so called, notwithstanding the broad language used, were applicable only to the civil service of the State. It follows that the discharge of the relator was authorized. As, however, by the literal interpretation of the statute, he would seem to have some rights upon this application, we think the order should be reversed, without costs.

All concurred, except Parker, P. J., dissenting.

Order reversed, without costs, and application denied.