
    Charles U. Powell, Respondent, v. The City of New York,. Appellant.
    
      Salaries in New Yorh city — the civil service rules merely establish a classificationr they do not fix salaries.
    
    Section 1543 of the Greater New York charter, which provides that the salaries of employees in all the city departments shall he such as the heads of the respective departments shall designate and approve, subject to the revision of the board of estimate and apportionment, was not repealed by the repealing clause contained in the Civil Service Law (Laws of 1899, chap. 370),
    Rule 37 of the rules promulgated by the municipal civil service commission of the city of New York, which, under section 6 of the Civil Service Law, has “ the force and effect of law,” .providing, “ Positions in the competitive class are graded according to the fixed limit of compensation as follows * * * Fourth Grade. * * * Draughtsman. Annual compensation of more than §1,330, but not more than §1,800,” does not entitle a draughtsman whose salary has been fixed by the head of the department in which he is employed at the sum of §900 per annum, to at least $1,330 per annum.
    It was not the intention of the municipal civil service commissioners in such rule to fix any salaries, but to make a mere classification.
    Appeal by the defendant, The City of Yew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 11th day of June, 1901, upon the decision of the court rendered after a trial at the Queens County Special Term.
    
      William J. Carr, for the appellant.
    
      W. J. Foster, for the respondent.
   Goodrich, P. J.:

The plaintiff, on January 31,1899, passed a civil service examination for, and was duly appointed to, the position of topographical draughtsman in the department of public improvements of the city of Hew York at a salary of $900 per annum. Since that time he has performed his duties as such draughtsman and received and receipted in full for his salary at the rate stated. He duly presented a claim to the comptroller of the city of Hew York for the difference between his salary at the rate of $900 and what it would be at the rate of $1,320, and the claim being refused, commenced this action. The action was tried at the Queens County Special Term; the court rendered a short decision and directed judgment for the plaintiff, and the city appeals.

The White Act (Laws of 1899, chap. 370, § 10) authorizes the municipal civil service commission of the city of Hew York to make rules which, by section 6, “ shall have the force and effect of law.” Section 11 requires that the positions in the classified service of the city shall be arranged in four classes, one of which is the competitive class.

Rule 37, promulgated by the municipal civil service commission in pursuance of the act, contains the following: Positions in the competitive class are graded according to the fixed limit of compensation as follows *' * * Fourth Grade. * * * Draughtsman. Annual compensation of more than $1,320, but not more than $1,800.”

The defendant contends that under section 1543 of the Greater Hew York charter the “power to fix the minimum salary of the plaintiff was in the Board of Public Improvements and not in the Municipal Civil Service Commission,” while the plaintiff insists that “ the rules of the Civil Service Commission of the city of Hew York, having been approved by the State Civil Service Commission and the Mayor of the defendant, have the force and effect of law,” and that “ the minimum and maximum amounts of compensation to be paid to persons holding positions in the grade in which respondent’s position is classified, having been fixed and established by law, he is entitled to receive, at least, the minimum amount for his services.” In other words, the question involved in this appeal is whether the head of a public department, or the municipal civil service commission, has the power to fix the minimum salary of public employees.

I do not think that it was the intention of the municipal civil service commissioners, in rule 37, to fix the salaries, and I am clear in my opinion that they did not thereby fix them. The rule was a mere classification. It says that positions in the competitive class are graded according to the fixed limit of compensation,” and makes one of these grades a fourth grade, defining it as composed of persons, draughtsmen being included, having an “ annual compensation of more than $1,320 but not more than $1,800.” This is by no means a rule fixing the salary or a declaration that every person holding the position of draughtsman shall receive a salary between $1,320 and $1,800. It is merely a classification of employees, according to the amount of their salaries.

This is in .accordance with the views expressed in People ex rel. Lodholz v. Knox (58 App. Div. 541; affd. without opinion, 167 N. Y. 620) where it was said, Mr. Justice Rumsey writing (pp. 543, 544, 546): “ By section 10 of the White Act the civil service commissioners were called upon to prescribe rules for the classification of the offices, places and employments, but not the salaries, in the -classified service. * * * There is nothing in the law which I can find that authorizes the commissioners to consider the salary to be paid. All they are to classify is the position.”

On the other hand, section 1543 of the Greater New York charter provides -that the number and duties of employees in all departments, “ with their respective salaries * * * shall be such as the heads of the respective departments shall designate and approve; but subject, also, to the revision of the board of estimate and apportionment.” Here is a clear and consistent devolution of power upon the several departments where it naturally belongs.

I find nothing in the repealing section of the White Act which repeals section 1543 of the charter, or transfers to the municipal civil service commission the power conferred xipon heads of departments by that section. Certainly we cannot hold that it was the intention of the Legislature, by the general words of repeal in section 29, to destroy the whole salary scheme of the charter unless the language is specific or unequivocal. The repealing clause of the White Act must be considered as relating only to subjects cognate with its own subject. The salaries of employees of the city are only mentioned incidentally to classification and not otherwise. Consequently it would be a stretch of judicial interpretation to hold that the White Act repeals section 1543 of the charter. I am clearly of opinion that it was not intended as such repeal.

It follows that the salary of the plaintiff remains at $900, as it was fixed by the head of the department at the time of his appointment, and that he cannot maintain this action.

The judgment should be reversed, and, as the situation cannot be changed by evidence, judgment must be ordered for the defendant, with costs.

Bartlett, Woodward, Hirsohberg and Jerks, JJ., concurred.

Judgment reversed and judgment ordered for the defendant, with costs of the trial and of this appeal.  