The opinion
Willard Bartlett, J. (dissenting):
The civil service laws of this State, as they existed in 1898, provided, among other things, that “If a person holding a position subject to competitive examination in the civil service of the State, or of a city, shall be removed or reduced, the reasons therefor shall be stated in writing and filed with the head of the department, or other appointing officer, and the person so removed or reduced shall 'have an opportunity to make an explanation.” (Laws of 1898, chap. 186, § 3, amending Laws of 1883, c-hap. 354, § 13.)
The so-called White act, which is now in force, repealed the provision which I have quoted. '(Laws of 1899, chap. 370.)
By rule 42, the municipal civil service commission has assumed not only to restore the provision thus repealed, so far as it applied to the city of Hew York, but has further declared that no removal of a person in the classified civil service of the city shall be valid until the directions of the provision have been observed ; that is to say, until the reasons have been placed on file and the person has been afforded an opportunity to make an explanation in writing.
I do not think that the Legislature, when it passed the White act, intended to authorize the municipal civil service commission, or the State Civil Service Commission, to establish a rule in respect to removals from office which the Legislature itself, by that very enactment,-repealed. The effect of such repeal was to leave in force the power to remove which was vested in the heads of departments by section 1543 of the Greater Hew York charter. I cannot believe that-it was the intent of the Legislature to empower or permit the civil service commissioners to amend, modify or repeal the provisions of that section by means of rules adopted to carry out the purpose of the White, act.
For these reasons I am constrained to dissent from the conclusion reached by the presiding justice.
Order affirmed, with ten dollars costs and disbursements.