Without abolishing the position held by the petitioner, he could not be removed except for cause after hearing upon charges, being an exempt volunteer fireman. The question here is whether the Comptroller has lawfully abolished the position. The Comptroller admits in the return that the petitioner was and for many years prior thereto had been division chief in the Bureau of Canal Affairs ■ in his office and that it was a position created by law and existing until he abolished it; that such position was a place of employment in the competitive civil service established pursuant to the rules of the Civil Service Commission; that the petitioner gave him a notice purporting to be an exempt fireman’s certificate. The Comptroller states in his return for a separate defense: (a) That the position of division chief of the Bureau of Canal Affairs in his office became unnecessary and was abolished for reasons of economy; (b) that there was no work for petitioner to perform and that the particular duties previously performed by him have been distributed and are now being performed by the employees of the Comptroller’s office as hereinafter described; (c) “ That since the completion of the Barge Canal, the work of the Bureau of Canal Affairs has been constantly decreasing, and I became convinced, in the interest of economy and retrenchment, that there was no reason for maintaining the said Bureau as a separate Bureau in the Comptroller’s office, since all the work could be done by the Finance Bureau;” (d) “ That the work formerly done by said George M. Spawn [petitioner] is now being done in part by Deputy Comptroller Fitzgerald, in charge of Finance Bureau, a portion by L. J. Flanigan, formerly a clerk in the Bureau of Canal Affairs, and Deputy Comptroller Bernard M. Patten; ” (e) that by*the original appropriation bill of this year, being chapter 225, Laws of 1923, the sum of $513,869 was appropriated in the following items:
“State Comptroller.
*591“ For expenses of maintenance and operation of the State Comptroller, of which not more than $396,294 may be available for personal service, $513,869.
“ On or before June 15th, 1923, the State Comptroller shall file with the Governor, the Chairman of the Senate Finance Committee and the Chairman of the Assembly Ways and Means Committee, a tentative segregation of the amount hereby appropriated. Before any moneys shall be paid out of this fund, such segregation shall have their .approval and no change shall be made in this tentative segregation during the fiscal year commencing July 1,1923, without their approval ” (See Session Laws, 1923, p. 293); (f) that the said appropriation bill of 1923 (see Session Laws, p. 375) carried a further item, separate and distinct from the lump sum appropriation, payable out of the canal fund and reading as follows: “ Canal Fund. State Comptroller. Bureau of Canal Affairs. Personal Service. Division chief, $4,000; Clerk, $3,000; Clerk, $2,500; Clerk and stenographer, $2,000; Transfer agent, $1,400; Laborer, $909.” (There are other items of appropriation out of the canal fund for the Bureau of Canal Affairs given at page 375 of Session Laws, 1923, not covered by the return and not material here); (g) “ That in my reorganization of the State Comptroller’s office, as provided by the lump sum appropriation above set forth, I transferred the personnel of the Bureau of Canal Affairs, with the exception of Division Chief at $4,000 and Clerk at $2,500, to the Finance Bureau;” (h) “ That all of the work of the Bureau of Canal Affairs is now being adequately and properly done by the Finance Bureau.”
These are all of the allegations of the return which seem to me to be material to the situation presented here except that the return sets forth in paragraph 14 in some detail the exact manner in which the Comptroller abolished the Bureau of Canal Affairs as a separate bureau as part of the reorganization of his office under the lump sum appropriation, whereby the work of the bureau was made to devolve upon the Finance Bureau. It is also alleged in that paragraph of the return that the tentative segregation under the lump sum appropriation was duly approved by the Governor and the chairman of the finance committee of the Senate as required by the appropriation item.
As I have above stated the question here is whether the Comptroller has lawfully abolished the position formerly held by the petitioner. For over a century separate authority has been provided by statute for the handling of the canal affairs of the State. It is unnecessary to review the earliest history but beginning in 1848 there was created an auditor for the Canal Department to be appointed to take the place of a chief clerk in the Canal *592Department, which office of chief clerk was then abolished. (Laws of 1848, chap. 162.) In 1883 the position of auditor was abolished and in its place was created the position of chief clerk of the Bureau of Canal Affairs and it was provided that there should be “ established and maintained in the office of said Comptroller a bureau to be called the the Bureau of Canal Affairs.” (Laws of 1883, chap. 69.)
By chapter 413 of the Laws of 1901,* it was provided as follows: “ The Bureau of Canal Affairs heretofore established in the office of the Comptroller is continued, and the chief clerk of such bureau shall be the secretary of the Commissioners of the Canal Fund and of the Canal Board.”† By chapter 772 of the Laws of 1913 the above was amended to read as follows: “ The Bureau of Canal Affairs, heretofore established shall be continued in the office of the Comptroller and the Comptroller shall designate some person in his office to be the secretary of the Commissioners of the Canal Fund and of the Canal Board.” This is now the law and is found in section 21 of the Canal Law.
Starting with the proposition that the Canal Law of the State requires that “ The Bureau of Canal Affairs, heretofore established shall be continued in the office of the Comptroller,” we find that since that time the Legislature has annually provided separate items in its appropriation bill for such a separate Bureau of Canal Affairs in the office of the Comptroller, the maintenance of which is payable out of the canal fund of the State and not out of the general fund. We find that for years in these annual appropriation bills the position of chief clerk has been recognized which in 1922 and 1923 was changed to “ division chief ”, with salary payable out of the canal fund. (See Laws of 1921, chap. 176, p. 669; Laws of 1922, chap. 106, p. 362; Laws of 1923, chap. 225, p. 375.) An examination of these appropriation items reveals the fact that each year the expenses of this Bureau of Canal Affairs was expressly chargeable upon the canal fund. Section 63 of the State Finance Law‡ contains the following provision: “ The Comptroller shall also charge to such fund from time to time so much for the services of the clerks in his office, devoted to the accounts and revenues of the canals, as in his opinion is just.” This provision was in the State Finance Law of 1897. (Laws of 1897, *593chap. 413, § 63.)* This provision was in existence in 1901 and 1913 at the time when the Legislature expressly provided that “ the Bureau of Canal Affairs, heretofore established shall be continued in the office of the Comptroller.” Consequently it cannot be said that the above provision of section 63 of the State Finance Law obviates the necessity of continuing the Bureau of Canal Affairs as a separate bureau in the office of the Comptroller. It is a mere bookkeeping provision. It is not an appropriation bill within the meaning of section 21 of article 3 of the Constitution which provides: “No money shall ever be paid out of the Treasury of this State or any of its funds, or any of the funds under its management, except in pursuance of an appropriation by law; nor unless such payment be made within two years next after the passage of such appropriation act; and every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated, and the object to which it is to be applied; and it shall not be sufficient for such law to refer to any other law to fix such sum.” The provision above referred to in section 63 of the State Finance Law does not constitute an appropriation bill within the meaning of the Constitution. In order to make that provision of section 63 effective for use by the Comptroller, it is necessary that there shall be an appropriation out of the canal fund available for that purpose. The above provision of section 63 was in the State Finance Law of 1897. An examination of chapter 435 of the Laws of 1897, chapter 550 of the Laws of 1898 and chapter 570 of the Laws of 1899, reveals a lump sum appropriation out of the canal fund in the following language: “ For clerk hire in the Bureau of Canal Affairs, six thousand dollars, or so much thereof as may be necessary.” Since 1899 the Legislature has practically rendered the above provision of section 63 of the State Finance Law obsolete by providing in the appropriation bill an itemized budget for the Bureau of Canal Affairs. Moreover, said provision of section 63 of the State Finance Law is found in hcec verba in the Revised Statutes (R. S. pt. 1, chap. 9, tit. 2 [1 R. S. 195], § 13), and was derived from Laws of 1827, chapter 2, section 3. This was, therefore, a provision of the statute law of the State prior to the introduction into our Constitution of the above provision with reference to appropriation bills. That provision of the Constitution as to appropriation bills was added by the Constitution of 1846. (See Const. 1846, art. 7, § 8; Const. 1894, art. 3, § 21.) Since the Constitution of 1846, that provision of the State Finance Law and its antecedent statutes *594has thus been limited in its application and unavailable to the Comptroller except when applied to a lump sum appropriation out of the canal fund in the manner adopted by the statutes of 1897, 1898 and 1899, above referred to.
The lump sum appropriation granted to the Comptroller in 1923 was an appropriation out of the general fund of the State Treasury. It was not an appropriation out of the canal fund and, therefore, is not available for use by the- Comptroller under section 63 of the State Finance Law. This lump sum item was not intended to confer any authority upon the Comptroller in relation to the Bureau of Canal Affairs because that bureau has been separately provided for by the Legislature in a separate paragraph of the appropriation bill. (See Laws of 1923, p. 375.) The separate items for this bureau are made expressly payable out of the canal fund. Thus by no process of reasoning can we reach the conclusion that the provision of section 21 of the Canal Law requiring the continuance of a separate Bureau of Canal Affairs in the Comptroller’s office can be interfered with by the Comptroller by virtue of any implied authority granted to him under the lump sum appropriation for his office. Clearly that lump sum appropriation was intended to relate only to the general employees and business of his office and not to the bureau in question. On the contrary, it seems clear to me that by necessary implication the Legislature expressed an intention to preserve the Canal Bureau as a separate unit in the Comptroller’s office as required by section 21 of the Canal Law when it made specific appropriations for the Canal Bureau and a lump sum for the balance of the expenses of personal service and maintenance and operation of the Comptroller’s office.
Certainly there is no room for the inference that the Legislature impliedly authorized the abolition of the Bureau of Canal Affairs as a separate bureau in the Comptroller’s office; but that is precisely what the Comptroller has done as indicated by his return, parts of which I have quoted. Finding that the work of the Bureau of Canal Affairs was decreasing, the Comptroller took it upon himself without authority of law to abolish this bureau as a separate bureau in his office upon the tlieory that all the work could be done by the Finance Bureau. The abolition of the relator’s position was not effected upon the ground that his position was unnecessary to the maintenance of the Bureau of Canal Affairs, but because in the judgment of the Comptroller the whole bureau as a separate bureau in his office was unnecessary and was abolished. Having unlawfully abolished the bureau itself and the abolition of this position being an essential part of the scheme of economy thereby to be accomplished, we must hold that the *595position itself has been abolished as part and parcel of an unlawful act and thus was itself unlawfully abolished. There was no other position to which the relator could be transfered simply because the work of his position had been transferred unlawfully to another bureau where his work and that of other positions abolished was to be done by employees of the latter bureau. Mr. Justice McCann says: “ The Bureau of Canal Affairs did not contemplate that any individual employed therein should be employed exclusively in such bureau.” I think that is contrary to the clear public policy indicated in the statutes which provide: (1) For the continuance of the Bureau of Canal Affairs in the office of the Comptroller; (2) certain designated positions at fixed salaries for the continuance of the bureau, separately set forth in the appropriation bill apart from the lump sum appropriation granted to the Comptroller for the other expenses of his office; (3) payment of the employees in the bureau out of the canal fund. This bureau having been carefully segregated by general law as a separate bureau in the office of the Comptroller and separate itemized appropriations having been made for the compensation of its designated personnel, payable out of the canal fund, it seems clear that the Legislature intended that the employees in that bureau should be confined to the duties of that bureau. It cannot be the policy of the State to permit the canal fund to be used for any other purpose; nor to permit the general fund of the State to be used to operate the Canal Bureau.
The petitioner’s position became unnecessary only because the Comptroller has done an unlawful act of consolidation of bureaus. He had- no express or implied authority to abolish the Bureau of Canal Affairs and by clear implication of the statutes he is prohibited from so doing. The term “ bureau ” is defined in Webster’s New International Dictionary as “a department or office of government for the transaction of public business, or a subdivision of such a department or office. * * * In the United States the term is confined to certain subdivisions of some of the executive departments, the heads of which are usually called commissioners, or chiefs, or directors.” The Comptroller has abolished the Bureau of Canal Affairs so that it no longer has identity as “ a department or office ” or “ a subdivision of such a department or office.”
Having reached the conclusion by virtue of the statutes, to which I have referred, that the abolition of the petitioner’s position carries with it the infirmity of having been accomplished as a part of an unlawful abolition of the entire bureau, I reach the conclusion that the order of Mr. Justice Nichols should be affirmed.
Moreover, I think we may further say that the appropriation *596bill, in having thus carefully made separate provision for this bureau, has recognized a distinct position of “ division chief ” and that there is no statutory authority for the Comptroller to abolish that position in view of the special circumstances and historical development of this bureau and of this position. Ordinarily a line item in an appropriation bill has no great significance, but reading this fine item in this appropriation bill, which recognized this distinct position of division chief, in connection with the lump sum item for the balance of the office and in connection with the general law, all requiring the continuance of the bureau with its employees payable out of the canal fund, I think we must give more than the usual significance to that particular fine item of the appropriation bill. If the bureau must be continued as a separate unit, it is appropriate that the bureau should have a chief. The bureau had a chief clerk prior to 1848 when it was a part of the Canal Department. It had a chief, known as an auditor, in the Canal Department from 1848 to 1883. When it became a bureau in the Comptroller’s office in 1883, a chief clerk was again created to take the place of the auditor of the Canal Department. This chief clerk was expressly recognized by general law until 1913 and the late appropriation bills have been recognizing this position down to the time when the Comptroller sought to abolish it in 1923. Under these circumstances it should require clear statutory authority to warrant the Comptroller in abolishing the position so fortified by historical development and by all of the existing statutes bearing upon its present statutory recognition as a distinct position in a distinct bureau required to be continued in the Comptroller’s office.
For both of these reasons I disagree with the conclusion of Mr. Justice McCann and vote for an affirmance of the order.
Cochrane, P. J., concurs.
Order reversed on the law, with costs, and motion denied, with ten dollars costs.
Adding to Canal Law (Gen. Laws, chap. 13; Laws of 1894, chap. 338), §16.—Rep.
Re-enacted by Canal Law (Consol. Laws, chap. 5; Laws of 1909, chap. 13), § 21.— [Rep.
Consol. Laws, chap. 56 (Laws of 1909, chap. 58), § 63, as amd. by Laws of 1913, chap. 267.— [Rep.
Gen. Laws, chap. 10.— [Rep.