OPINIONS. CIVIL SERVICE LAW SECTION 13, SUBDIVISION 1- SEALER OF WEIGHTS AND Position of Deputy State Superintendent of Weights and Measures is in the exempt class—(Section 100 Executive Law; chap. 512, L. 1910; General Business Law, § 11). ALBANY, January 4, 1911. Hon. JOHN C. BIRDSEYE, Secretary, Civil Service Commission, Albany: Dear Sir.- I beg leave to submit my opinion in response to your communication of December 22d ultimo, in which you ask whether the position of Deputy State Superintendent of Weights and Measures" unquestionably is included in the exempt class." Section 100 of the Executive Law, entitled "Appointment and salary of state superintendent of weights and measures," as amended by chapter 698 of the Laws of 1910, provides among other things: "The superintendent shall be allowed for salaries for a deputy and inspectors, clerical services, traveling and contingent expenses for himself, his deputy and his inspectors such sums as shall be appropriated by the legislature." The appropriation bill of 1910 (chap. 512) provides for the salary of a deputy superintendent of weights and measures $1,500. These are the only statutory provisions in regard to the position in question except those contained in section 11 of the General Business Law, as amended by chapter 187 of the. Laws of 1910, where provision is made that the State Superintendent of Weights and Measures "or his deputies or inspectors" shall annually test all scales, etc., used in checking up the disbursements of supplies in State charitable institutions, and it is further provided that the superintendent "or his deputies or inspectors' shall inspect all standards used in counties or cities and "his deputies or inspectors" shall inspect the work of local sealers or the weights, etc., of any person or corporation. Section 12 of the Civil Service Law provides that the classified service shall be arranged in four classes "to be designated as the exempt class, the competitive class, etc."; and section 13 defines the exempt class as follows: "The following positions shall be included in the exempt class: "1. The deputies of principal executive officers authorized by law to act generally for and in place of their principals." The question therefore is whether or not the position in question comes within subdivision 1 of the aforesaid section 13 of the Civil Service Law. Characterizing a position by the name position by the name "deputy" is not conclusive of its character; that must be determined by its powers and duties. Matter of Ostrander, 12 Misc. 476; People ex rel. Conway v. Barker, 14 Misc. 360. But the powers and duties of the deputy in question are nowhere defined by statute and therefor section 9 of the Public Officers Law is applicable. Section 9 of the Public Officers Law provides among other things: Every deputy, assistant, or other subordinate officer, whose appointment or election is not otherwise provided for, shall be appointed by his principal officer, board or other body, and the number thereof, if not otherwise prescribed by law, shall be limited in the discretion of the appointing power. If there is but one deputy, he shall, unless otherwise prescribed by law, possess the powers and perform the duties of his principal during the absence or inability to act of his principal, or during a vacancy in his principal's office." Under this section of the Public Officers Law, therefore, there being but one deputy state superintendent of weights and measures and his duties not being "otherwise prescribed by law," he is, in the language of subdivision 1 of section 13 of the Civil Service Law, "authorized by law to act generally for and in place of" his principal. I am therefore of the opinion that the position of Deputy State Superintendent of Weights and Measures is in the exempt class. Very respectfully yours, THOMAS CARMODY, Attorney-General. EDUCATION LAW CIVIL SERVICE LAW, SECTION 9. Position of District Superintendent of Schools comes within the provisions of section 9, Civil Service Law, and is in unclassified Civil Service -(See Opinion, February 15, 1911). ALBANY, January 4, 1911. Hon. JOHN C. BIRDSEYE, Secretary, Civil Service Commission, Albany: Dear Sir. I beg leave to submit my opinion in response to your request of December 20th, ultimo, as to whether or not "the position of district superintendent of schools, created by chapter 607, Laws of 1910, is in the unclassified or classified civil service." The classified and unclassified service is defined in section 9 of the Civil Service Law; that section provides, in so far as it is applicable to this question: "The unclassified service shall comprise * * persons employed in or who seek to enter the public service as superintendents, principals or teachers in a public school or academy or in a state normal school or college. The classified service shall comprise all positions not included in the unclassified service." By chapter 607 of the Laws of 1910, amending the Education Law, the office of school commissioner is abolished and in its place * * the office of district superintendent of schools is created in "the territory embraced in the school commissioner districts of the State outside of cities and of school districts of 5,000 population or more, which employ a superintendent of schools (Sections 380 and 381.) Such superintendent is to be elected by the school directors of a supervisory district. (Section 383.) The school directors are to be selected at a general election "in the same manner that town officers are elected at town meetings." (Section 382.) The qualifications of a district superintendent are prescribed by section 384, and it is provided by subdivision 2 of that section: "He must possess or be entitled to receive a certificate authorizing him to teach in any of the public schools of the state without further examination and he shall also pass an examination prescribed by the commissioner of education, etc." He is to hold office for five years (section 386); and his duties and powers are prescribed in section 395. These are in part: to confer with teachers of the district in regard to school and educational matters; to advise and direct the school trustees in regard to schoolhouses, furniture, textbooks, etc.; to examine and license teachers; to examine charges affecting moral character of teachers; to take and report to the commissioner of education testimony in a case on appeal; to make such further investigations and reports as the commissioner of education may request. The character, powers and duties of the position of district superintendent of schools as outlined in this act, in my judgment, makes him a superintendent under the above quoted language of section 9 of the Civil Service Law. I am, therefore, of the opinion that the district superintendent of schools under chapter 607 of the Laws of 1910 is in the unclassified service. Very respectfully yours, THOMAS CARMODY, Attorney-General. EXECUTIVE LAW SECTIONS 51, 54 - STATE TREASURER BONDS. State Treasurer may not pay from office expenses of his department, for surety bonds required from certain of his employees (See Opinion, January 20, 1903, p. 222 Rep.). ALBANY, January 6, 1911. Hon. JOHN J. KENNEDY, State Treasurer, Albany: Dear Sir. I beg leave to submit my opinion in response to your request of the 5th inst., asking whether it is permissible for you to pay from the office expenses of your office for the surety bond required from various employees connected with your department. In your supplemental letter of same date you state that there are ten employees of your office in addition to yourself and deputy. By section 51 of the Executive Law the State Treasurer is required to give "an official undertaking in the sum of Fifty Thousand Dollars." By section 52 of the same law the State Treasurer is empowered to appoint a deputy "for whose conduct he shall be responsible" but there is no specific requirement that such deputy give a bond. By section 54 of the same law the treasurer is authorized to designate an accountant and transfer officer from the employees of his office, and it is provided that he "shall give to the treasurer a bond in such penalty as he may deem secure.” I have been unable to find any statutory provision requiring bonds from the other employees of the State Treasurer's department. However, Attorney-General Cunneen in an opinion to your department of date January 20, 1903, held that the State Treasurer was responsible to the State for the fidelity of his subordinates; that he could require bonds of his deputy, accountant and transfer officer, chief clerk, cashier, assistant cashier and confidential clerk; and further that he could require bonds of subordinates within the competitive class of the Civil Service, occupying positions of fiduciary responsiblity, but could not require bonds from other Civil Service appointees. (Report of AttorneyGeneral, 1903, p. 222.) In neither the appropriation bill for 1910 (chap. 512) nor in the supply bill for that year (chap. 513) is there any specific provision for the payment by the State of such premiums. The only |