People ex rel. Scanlon v. Milliken

127 A.D. 468

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 18, 1903
• Status: Published

Opinions

Cochrane, J.:

The relator- applied for a writ of mandamus to compel the Civil Service Commission to certify his compensation as- an assistant deputy sheriff of ¡Kings county under chapter 705 of the Laws of 1901. The position of the Commission is that such office is in the. competitive class under the Civil Service Law (Laws of 1899, chap. 370), and that the. appointment of the relator to such office was void because not made from a class certified by. such Commission. The Special Term sustained the Commission and the relator appeals.

Said chapter 705 of the Laws of 1901 in section 2 thereof

* prbvides for certain “ assistants, clerks, employes or subordinates in the said sheriff’s office.” Among such are eight deputy sheriffs at a salary of $2,200 each a year and eight assistant deputy sheriffs at a salary of $1,000 each a year.

The Civil Service Law in section 12 thereof exempts certain, positions including in subdivision 1 “ the deputies of principal executive officers authorized by law to act generally for and in place of their principals.” There is probably no doubt that the office of deputy sheriff is within this statute an exempt office. And the question in controversy is whether the office of “ assistant ” deputy sheriff in Kings county under the said act of 1901 is the same as a deputy • sheriff within the meaning of the provision above quoted from the Civil Service Law.

The statute does not define the powers and duties of these assistant deputy sheriffs. Nor do I think it necessary that we should attempt such definition in the disposition of this case; for conceding without deciding that their powers and duties are coextensive with those of the deputies, nevertheless the Legislature had the power to place them in a different category for other purposes including the operation of the Civil Service Law. And there is no incongruity in such legislative action when we consider the fact that it was clearly contemplated that they should consist of a cheaper class of men who would perform less important duties. In respect to salary they are cheaper than the clerks, accountant, secretary, jail warden, and his deputy, jail keepers, or the jail bookkeeper, and are on a parity with the prison van drivers, the cheapest of the male subordinates under the sheriff, and with the jail matrons. Conceding that they have the same powers and duties, generally speaking, as the deputy sheriffs, they are not in my opinion deputies within the meaning of the above-quoted provision from the Civil Service Law. That they are not deputies within the meaning of that act so as to be exempt from its operation appears to me reasonably clear from the phraseology of the act which creates them (Laws of 1901, chap. 705), .which characterizes them as “ assistant ” deputy sheriffs and indicates by the extent of the salary conferred upon them, smaller in comparison with other employees created by the same act and who are affected by the provisions of the Civil Service Law, that these assistant deputy sheriffs are also affected thereby.

It is a¡jfamiliar and fundamental rule of construction of statutes that they should be so construed if possible, as to give some meaning and effect to every part thereof. How the construction contended for in behalf of the relator renders the word “ assistant ” as used, in . the act of 1901 meaningless and surplusage. Clearly that word is . not needed in order to indicate merely a difference in salaries. Strike the word from the statute wherever if may occur and there would not be a scintilla of doubt that provision had been made for eight deputy sheriffs at a salary of $2,200 each and for eight other deputy sheriffs at a salary of $1,000 each.

But although the statute does not define fhe duties of an assistant deputy sheriff it expressly permits the sheriff (§ 6) to “ prescribe and regulate their respective duties.” It would seem, therefore, that he may place such limitations on their powers and circumscribe their duties -as he may desire. The entire-scope and tenor of the statute seems to me to indicate that their position from every point of view is inferior to that, of the deputy and that their duties are less responsible and onerous.

It is also>argued that, the sheriff is personally responsible for the acts of these assistants and hence that there is a natural injustice in -placing any restriction upon his power of selection. That has long been a favorite argument in attacks on the Civil Service law. I am quite willing to concede .its force in certain cases. But such argument must primarily be addressed to the legislative discretion and it is serviceable in construing, statutes only so far as it aids in determining the legislative intent. And such argument must fail entirely ib a case like this where-the statute authorizes the sheriff - to fully protect himself against the act of any subordinate. Attention. has been called to the fact that the sheriff may prescribe and regulate the duties of his subordinates (§ 6). Such section then continues: “The sheriff of the. county of Kings is hereby authorized and empowered to receive from any clerk and employe or subordinate othér than those required to give bond in this act such , security for the faithful performance of his duty as he shall deem necessary and proper,” In this connection three facts are prominently suggested : First, the sheriff may “ prescribe and regulate ” the duty of ah assistant deputy sheriff; second, he, may exact of-him “security for the faithful performance of his duty” as thus prescribed and regulated by himself; third, he may determine for himself the nature, extent and sufficiency of such security. It is difficult to conceive of more ample safeguards for the protection of the sheriff against the acts of these assistant deputies.

The order in my opinion should be affirmed.

All concurred, except Smith, P. J., who dissented in an opinion in which Sewell, J., concurred.

Amd. by Laws .of 1903, chap. 464. — [Rep.