#### In the Matter of the Application of Stephen A. Rudd, Respondent, for a Writ of Mandamus against James C. Cropsey, as District Attorney of the County of Kings, Appellant.

Second Department,

November 21, 1913.

Civil service — grade determined by nature of duty—district attorney of Kings county may reduce salaries of employees.

The nature of the duties of persons holding positions under the State Civil Service Law, not the salary received, fixes the grade of the incumbent.

The district attorney of the county of Kings may reduce the salary of a clerk in his office holding a position under the civil service. Having power to fix the salary of such clerk, he has power to reduce it.

Appeal by James 0. Gropsey, district attorney, from an order of the Supreme Court, made at the Kings County Special Term arid entered in the office of the clerk of the county of Kings on the 16th day of September, 1913, granting a peremptory writ of mandamus.

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      *Hersey Egginton, Assistant District Attorney [James C. Cropsey, District Attorney,*with him on the brief], for the appellant.

*Robert H. Elder [Otho S. Bowling*with him on the brief], for the respondent.

Thomas, J.:

The question is whether the district attorney of the county of Kings may reduce the salary of Rudd, a clerk, from $1,700 to $1,000 per annum. The proceeding is to compel the district attorney to certify the salary on the basis of the larger sum. It is not proved whether a hearing was afforded. But I regard that question as irrelevant to the inquiry. The applicant was, in 1904, appointed stenographer and private secretary to a former district attorney, which place was then exempt, and in 1907 he was transferred to a similar place in the class designated as competitive at a salary of $1,500, which in 1909 "was increased by the district attorney to $1,700. In 1911 the same district attorney appointed him as bond clerk at $1,700 per annum, upon the certificate of the State Civil Service Commission of a qualifying examination, although the position is in the competitive class. Such appointment placed Rudd in the grade designated as eighth under the civil service rules. Civil service rule VII is (Subds. 3, 4): “3. The classification of all positions shall be governed solely by the respective duties and functions of such positions, * * * 4. For the purpose of orderly arrangement and of regulated promotion, the positions in each subdivision of each group shall be divided into grades based upon the rates of annual compensation. * * * Grade 8. All positions, the compensation of which is 'at the rate of more than $1,500, but not more than $1,800 per annum.” The State Civil Service Law (Consol. Laws, chap. 7 [Laws of 1909, chap. 15], §41) is: “AH clerks * * * or other employees performing clerical service in the State departments * * * shall be classified in one of the following grades, in accordance with the appropriations made by the Legislature for such purpose.” Section 42-is: “Salaries for each grade. The annual salaries of employees for each grade shall not be to exceed the following: * * * eighth grade, *277eighteen hundred dollars.” Does grade depend on the nature of the duties or the salary ? The decision is that the nature of the duties, not the salary, fixes the grade. *(People ex rel. Lodholz*v. *Knox,*58 App. Div. 541; affd., 167 N. Y. 620.) In the case at bar the district attorney has reduced the salary from §1,700 (by salaries, eighth grade) to §1,000 (by salaries, sixth grade). But the position and duties remain the same. But if the grade depends upon the nature of the position and not the amount of the salary, there is no change of grade. Assuming that such is the case, the question is whether the district attorney can reduce the salary. The statute (Laws of 1896, chap. 772, § 3, as amd. by Laws of 1900, chap. 126) empowers the district attorney to appoint “one chief clerk, * * * and five additional clerks, whose compensation shall not exceed two thousand dollars each per annum, * * "x" said compensation * -x" * to be fixed and determined by ” the district attorney. That law was amended by chapter 556 of the Laws of 1901, chapter 409 of the Laws of 1911, and by chapter 401 of the Laws of 1913. The amendment enables the force to be increased, but continues the power of the district attorney to fix the several salaries. The statute relates to a particular office and was not repealed by the Civil Service Law. *(People ex rel. Lee*v. *Waring,*1 App. Div. 594, 597.) Moreover, its re-enactment since the Civil Service Law came in shows that it is not affected as to its terms by that law. But the decision is that the district attorney may fix the salary, but may not reduce it, for, it is urged, he might reduce it so as to amount to a removal, and that “The reduction was a removal from the grade or position held by the relator.” But how could there be a removal from a grade, if grade does not depend on salary? There is no statute against such reduction. Observe the statute. An earlier statute (Laws of 1898, chap. 186, § 3) prescribed procedure for *removal or reduction,*but the section was repealed by chapter 370 of the Laws of 1899 (see schedule), and by chapter 697 of the Laws of 1904, section 21, the procedure was limited to removal. So there is no positive law against reduction. In such case power to fix a salary carries power to reduce it. *(Sauerbrunn*v. *Board of Education,*150 App. Div. 407; affd. on opinion *278below, 208 IN'. Y. 550, where the board of aldermen, empowered by section 56 of the Greater New York charter to fix salaries of every officer or person paid out of the city treasury, fixed the salary of a draftsman on June 9, 1903, at forty-five dollars per week, and on June thirtieth following fixed it at thirty-five dollars per week.) (See *Buckbee*v. *Board of Education,*115 App. Div. 366; affd., 187 N. Y. 544.) In *People ex rel. Stokes*v. *Tully*(108 App. Div. 345) and *People ex rel. Holleran*v. *Creelman*(148 id. 121, 122) the power of the board of aldermen to increase the salary was recognized. In my judgment, if the district attorney is enabled to fix the compensation of the members of his force, his power does not cease when he has once exercised it. The persons are his immediate subordinates, and their earning capacities are within the test of his experience. He is given a gross sum for administering his office. It would be intolerable if he must observe a clerk worth only $1,000 receiving $1,700 and be powerless to protect the public against the waste and to give his office the benefit of an efficient use of the money. This is not a case where an officer remotely related to an employee is selected by law to fix his salary, but where the principal adjusts compensation to the services of his subordinates, who act immediately for him and' under his command. I see no logical support for the order, which is based on an apprehension that a superior will make the compensation so unequal to the service rendered that his subordinate will be compelled to retire.

The order should be reversed and the writ dismissed.

Jenks, P. J., Garr, Stapleton and Putnam, JJ., concurred.

Order reversed and writ dismissed, without costs.