If the office of any such county clerk is a salaried office, such county clerk shall pay over the sum so retained by him, to the officer to whom fees of such county clerk are required by law to be paid."

From the above language of the statute, it appears that the county clerk, being a salaried officer, was not paying these officers out of his own emoluments or salary, but out of public funds which had to be accounted for, under the statute. This is the view which was taken by Mr. Hervey, the supervising statistician and examiner, in this communication to the comptroller of the city of New York, a copy of which you inclose, and also the view taken by the board of estimate and apportionment and board of aldermen of the city of New York in enacting the resolution above set forth. It would seem to me, therefore, to be clear that prior to the adoption of that resolution, the position of notarial clerk in the office of the county clerk of New York county was in the civil service of the State.

The only remaining question is whether the incumbents were properly appointed to that position. If they were, since the resolution providing for the payment of their salaries in the regular way did not create any new positions, they would continue to hold them at the present time. As has already been seen, only one notarial clerk was specifically placed in the civil service class by the civil service rules in force prior to December 28, 1908. From this it would follow that the second position was necessarily in the competitive class. The first appointment made, there fore, that of Mr. Gilligan, would be valid, but when the county clerk assumed to appoint Mr. Walker after the enactment of chapter 246 of the Laws of 1908, he was assuming to appoint him to a position in the competitive class. If, therefore, this second appointment was not made from lists certified by your Commission, it is my opinion that it is invalid.

It follows from this that when the rules of your Commission were changed, as above set forth, on December 28, 1908, the postion of Mr. Gilligan was transferred from the exempt to the competitive class and that he still retains that position by virtue of

his original appointment. The second position of notarial clerk, however, has always been and still is in the competitive class and unless the appointment of Mr. Walker was properly made as within that class, he is not entitled to continue in that position.

I return herewith the several communications and enclosures which you handed me with your letter.

Very respectfully yours,

EDWARD R. O'MALLEY,

Attorney-General.

APPENDIX J

THE CIVIL SERVICE LAW, RULES, CLASSIFICATION AND REGULATIONS, AMENDED TO JANUARY 1, 1910

[669]

THE CIVIL SERVICE LAW

CHAPTER 15, LAWS OF 1909.

AN ACT in relation to the civil service of the state of New York and the civil divisions and cities thereof, constituting chapter seven of the consolidated laws.

§ 1. Short title. This chapter shall be known as the "Civil Service Law."

§ 2. Definitions.- When used in this chapter,

1. The term "commission" or "state commission" means the state civil service commission.

2. The term "municipal commission commission of a city.

means the municipal civil service

3. The "civil service" of the state of New York or any of its civil divisions or cities includes all offices and positions of trust or employment in the service of the state or of such civil division or city, except such offices and positions in the militia and the military departments as are or may be created under the provisions of article eleven of the constitution.

4. The "state service" shall include all such offices and positions in the service of the state or of any of its civil divisions except a city.

5. The "city service" shall include such positions in the service of any city. 6. The term "appointing officer" signifies the officer, commission, board or body having the power of appointment to subordinate positions in any office, court, department, commission, board or institution.

[671]