An able and ingenious argument has been presented to show that a subpœna server occupies a strictly confidential relation to the district attorney. It fails, however, to convince me that such a relation was ever intended by the legislature.
It is true that this controversy arises under the Veterans' Act and not under the civil service statute. But if the position is strictly confidential under that act it follows that it must be so regarded under the Civil Service Act. Taking this case as a precedent, what position is there in the civil service of this state, above that of common day laborers, in which an equally forcible and plausible argument may not be made in support of the claim that it is confidential? Take the police in the cities of the state, secret orders to watch suspected places and arrest wrongdoers are of daily occurrence. Must policemen be held to be confidential? The bookkeepers in the various departments of the state must, of necessity, know much of the transactions of the office and of the secrets contained in its files and documents. The comptroller is required to audit and pass upon the claims presented against the state. He relies upon his bookkeepers for the details in the items of accounts and for information in reference to the merits of the claims. Are not these bookkeepers also confidential? Where are we to draw the line? We said in theChittenden v. Wurster Case (152 N.Y. 345) that the rule laid down in the Crummey Case (152 N.Y. 217) ought not to be extended, and yet it is now proposed not only to extend the rule in that case, but to cast aside all previous rules and restrictions laid *Page 528 down by this court, and throw open the door so wide as to permit a great majority of the positions in the civil service of the state to be held to be confidential, and, consequently, not subject to the provisions of the statute requiring appointments to be made to office so far as practicable upon competitive examinations.
It does appear to me that the holding that a subpœna server is a strictly confidential employee will result not only in virtually nullifying and rendering ineffective the statute, but the Constitution as well.
PARKER, Ch. J., reads for reversal; GRAY, O'BRIEN and VANN, JJ., concur. HAIGHT, J., reads dissenting opinion, and BARTLETT and MARTIN, JJ., concur.
Order reversed, etc.