(dissenting). That section 220 of the Labor Law (subd. 3) mandates payment of wages to “ laborers, workmen or mechanics upon * * * public works ” and “ not less than the prevailing rate” cannot be denied, and no one disputes it.' Likewise undenied and indisputable is the fact that the positions held by petitioners fall within the work classification of 1 ‘ mechanics ”. (See Matter of Gaston v. Taylor, 274 N. Y. 359.) Petitioners are therefore entitled to be paid the prevailing rate of wages, and, indeed, we so held with respect to some of these very petitioners in the Gaston case. Yet the court is now holding that the subsequent transfer of their positions to the graded service of the competitive class from the ungraded service of that class deprives petitioners of the protection of section 220. Since the same classification device can readily be applied to all other laborers, workmen and mechanics, the decision opens the door to complete nullification, so far at least as municipal employees are concerned, of the prevailing rate of wage statute, although that statute has reflected the public policy of the state since 1894. (L. 1894, ch. 622; see Austin v. City of New York, 258 N. Y. 113, 117.)
Petitioners are structure maintainers, car maintainers arid maintainers’ helpers in the employ of New York City’s Board of Transportation, performing work of a manual and mechanical nature —• including carpentry, masonry, welding and other skilled trades — in connection with the maintainance and repair *187of the installations and facilities upon the city’s rapid transit lines. Until July 1, 1938, their positions were listed under the classification, “ Part 1, Ungraded Positions,” in the competitive class. Under that classification, they were, concededly, mechanics within the purview of section 220, and as such, entitled to be paid the prevailing rate of wages as determined by the “ fiscal officers ” of the city. On that day, July 1, 1938, the positions were removed from that classification and placed in a newly created classification, also in the competitive class, called “ Part 39, The Rapid Transit Railroad Service,” with grades whose maximum and minimum hourly compensation ‘1 is fixed at the maximum and minimum * * * of the several scheduled rates of wages adopted by the Board of Transportation and as approved by the Municipal Civil Service Commission from time to time ” (Resolution of N. T. C. Mun. Civ. Serv. Comm., adopted at meeting May 12,1938, amending classification). Thus did the civil service commission, in entire disregard of the legislative mandate (see Matter of Heaney v. McGoldrick, 286 N. Y. 38; Matter of Gaston v. Taylor, supra, 274 N. Y. 359, 366), take from the comptroller, the city’s “ fiscal officer ”, jurisdiction to fix wages for mechanics and give it instead to the board of transportation.
Not the slightest change was made in qualifications or duties by the shift from Part 1 to Part 39, and it is admitted that the maximum wages were fixed without any investigation or consideration of prevailing rates. Although the positions are now printed under the caption “ graded,” there was no attempt to grade the positions themselves on the basis of skill, experience, duties or any other consideration whatsoever. If anything is clear, it is that there is no hierarchy of grades. Now, as before, there is but one kind of car maintainer, one kind of structure maintainer, and one kind of maintainer’s helper. True, there is a car maintainer, “ Group A ”, “ Group B ”, “ Group C ”, “ Group D ”, down through “ Group G ”, and a structure maintainer “ Group A ”, “ Group B ”, “ Group C ”, etc. However, such “ group ” specifications are nothing more than code designations for various mechanical trades having their counterpart in private industry. Each of them represents a job of the same rank and on the same level, paying the same wages. Thus, for example, a mechanic with the title of *188car maintainer, group D, is simply a welder, and group D embraces all welders. Similarly, structure maintainers are either carpenters, masons, iron workers, plumbers, painters, etc., depending upon their code or “ group ” designation.1
As a matter of fact, all maintainers are of the same rank and on the same level, and. there is no promotion, as the majority opinion seems to suggest, from car maintainer, group A, to car maintainer, group B, from group B to group C, or for that matter, from any one group to any other — nor, I should suppose, transfers among these positions — since each involves a different craft. The line of promotion is from maintainer’s helper to maintainer and thereafter to nonmechanical positions — to foreman to assistant supervisor to supervisor to assistant division engineer, and, finally, to general superintendent. And that was the precise line of promotion that was open to these petitioners before the shift in 1938 from Part 1 to Part 39. (See Matter of Cook v. Kern, 278 N. Y. 195.) But, whereas they were formerly conceded the right to the prevailing rate of wages while they held positions as mechanics, that right is now denied *189to them — although their qualifications and duties are exactly what they previously were.
I agree, of course, that ‘ ‘ an employee in the competitive class * * * may not gain an increase in the rate of pay in excess of the range of compensation fixed for his grade, without passing a competitive examination and thereby gaining a promotion.” (Opinion of Lewis, J., p. 181.) But, it is clear to me, payment of the prevailing rate of wages to mechanics for the particular work they do cannot possibly result in increasing their pay one cent beyond the compensation to which the law entitled them.
The civil service provisions of the Constitution (art. V, § 6) and the Civil Service Law (§ 16, subds. 1, 7) neither require nor permit the classification of mechanics into grades with maximum wage limits less than the prevailing rate for comparable work. Since petitioners’ qualifications and duties are comparable to those of mechanics in the same trades in private industry, they demonstrated — when they passed competitive examinations for their positions — their merit and fitness to perform all of the duties and to receive all of the wages paid for comparable work in private industry. Payment of the entire wage for comparable work is petitioners’ statutory due, and its receipt can neither promote nor demote them above or below their mechanical trade. That being so, it follows that no promotional examination is or may be required to establish their merit and fitness for the performance of all of their present duties. No claim is made, and none could be, that there is any higher position as a mechanic in the same trade to which they could be promoted. As noted above except for promotion from helper to maintainer, the only promotional opportunities are to nonmechanical work as foreman and supervisor. Therefore, the maximum wage limits of petitioners’ grades have no effect upon their eligibility or opportunity for promotion and serve no purpose, except to limit arbitrarily petitioners’ maximum wages to an amount that is less than the prevailing rate for comparable work in the community.
Limiting mechanics’ maximum wages to specified amounts is not indispensable to their promotion to higher supervisory or administrative positions. Since the year 1938, mechanics in the service of the city — indeed, even some employed in the board of transportation (for instance, stationary engineers, *190stationary firemen, payers and rammers) —have been classified into “ Part 38, The Skilled Craftsman and Operative Service ”, with grades which embody no limitation upon maximum wages other than “ the prevailing rate of wages * * * as determined by law.” The fact that respondents have applied that classification to thousands of city-employed mechanics since 1938, that they have graded them by reference to prevailing rates, certainly proves that mechanics may be graded in a manner which —■ without impinging upon any civil service principle or disrupting any civil service regulation — permits them to be paid prevailing rates of wages and to be promoted to higher administrative and supervisory positions.
There was no basis for classifying petitioners into grades in Part 39, with maximum wages limited to specified amounts — without regard to the prevailing rate — while classifying other mechanics into grades in Part 38, which imposed no maximum limit on wages other than “ the prevailing rate ”. The positions of mechanics in Part 38 and Part 39, the record discloses, “ are both graded positions, both graded services.” Promotions in each Part follow an identical pattern, from mechanic to foreman and so on up the line. There is no difference between the grades of mechanics in those two Parts other than the difference in the limits of the maximum wages that could be paid. Consequently, as respondents acknowledged upon the oral argument, section 220 of the Labor Law could be completely bypassed by the simple device of classifying every mechanic now listed in Part 38 on a basis similar to that in Part 39.
Nor is the limitation of mechanics’ wages to specified maximum amounts a necessary condition to their examination for merit and fitness for mechanical work. The prediction made in Wood v. City of New York (274 N. Y. 155, 159-160) — that “ positions coming under a generic name like electricians, carpenters, iron workers [and] engineers ” could not be classified at prevailing rates without disrupting civil service regulations — was proved false the very next year, when the civil service commission itself classified those very positions into grades in Part 38, which, as already noted, imposed no limitation upon wages other than ‘ ‘ the prevailing rate of wages * * * as determined by law.” Beyond that, this court has directed payment of prevailing rates of wages to mechanics *191included in Part 38 (see Matter of Smith v. Joseph, 300 N. Y. 516; Matter of Giannettino v. McGoldrick, 295 N. Y. 208), and the commission has likewise promoted mechanics who are graded in that part. (See Matter of Cook v. Kern, supra, 278 N. Y. 195.) Such actions by court and commission since 1938 establish beyond question that mechanics in the city’s service can be classified, graded and paid prevailing rates without any conflict between the Civil Service Law and the Labor Law.
Moreover, if, by a strained interpretation, an appearance of conflict can be created, the uniform tenor of prior interpretation of those statutes demonstrates that the provision of the Labor Law must control. In a variety of situations we have held that the rates of pay fixed by the legislature, whether at a stated amount or ait the prevailing rate, are not subject to change by officials otherwise empowered to fix either the compensation or the classification of the affected employees. Thus, we have repeatedly held that salaries mandated by statute are not subject to reduction by administrative officials in the exercise of discretionary powers vested in them by some other statute. (See Matter of Henderson v. La Guardia, 294 N. Y. 728, affg. 268 App. Div. 892, affg. 182 Misc. 1071; Matter of Shevlin v. La Guardia, 279 N. Y. 649, affg. 254 App. Div. 922, modfg. 166 Misc. 473; Matter of Wingate v. McGoldrick, 279 N. Y. 246.) Contrariwise, such employees were denied the benefit of a local law granting salary increments, because their compensation was fixed by section 220. (See Matter of Tuschinsky v. City of New York, 261 App. Div. 802, motion for leave to appeal denied 285 N. Y. 861.) These limitations on the power of public officials in general apply equally to the civil service commission. It, too, is the creature of the legislature and not its master.
The discretionary power of civil service commissions to classify or grade positions may not be exercised in such a manner as to affect or alter any classification made or any compensation fixed by statute. (Bressler v. Board of Higher Educ. of City of N. Y., 298 N. Y. 112; Matter of Metropolitan Life Ins. Co. v. Boland, 281 N. Y. 357, 361; Matter of Kilcoyne v. Lohr, 226 App. Div. 218, affd. 252 N. Y. 526; Zuckerbrod v. Board of Higher Educ. of City of N. Y., 276 App. Div. 752, motion for leave to appeal denied 300 N. Y. 765.) Thus, for *192example, we have refused approval and sanction to civil service commission action which divided into grades with maximum annual compensation of $1,800, $2,400 and $3,000, a position for which a salary range of $1,500 to $3,000 was fixed pursuant to special statute. (See Bressler v. Board of Higher Educ. of City of N. Y., supra, 298 N. Y. 112; Zuckerbrod v. Board of Higher Educ. of City of N. Y., supra, 276 App. Div. 752, motion for leave to appeal denied 300 N. Y. 765.) In the Bressler and Zuckerbrod eases, an attempt to classify a position into grades with less compensation than that fixed in accordance with the applicable statute, was held illegal as exceeding the powers of a civil service commission. By that decision, the court necessarily held inapplicable to positions whose compensation was fixed by statute the discretionary power of civil service* commissions to classify such positions into grades with lower compensation.
The decisions in the Bressler and Zuckerbrod cases went further than is required for decision of the case before us. There, the grades established by the Municipal Civil Service Commission — clerk, grades 2, 3, 4 and 5 — prescribed successively higher qualifications, responsibilities and compensation for the performance of the same type of clerical work in positions arranged in a promotional series. Here, as we have seen, there is but one grade for petitioners’ mechanical work, and no higher grade is provided whereby petitioners upon promotion may continue to perform more skilled or responsible work at the same mechanical trade. Therefore, we do not reach the question whether statutory compensation at the prevailing-rate of wages is payable to a mechanic after his position has been subdivided into grades differentiated by degrees of experience or skill — although in both the Bressler and Zuckerbrod cases, where a similar question was presented as to clerical employees, it was held that payment of statutory compensation may not be avoided by its subdivision into such grades.
No valid distinction may be made between the statute involved in Bressler and Zuckerbrod — Education Law, former section 889— and section 220 of the Labor Law. Neither statute specified the amount of money to be paid to the employee. Former section 889 of the Education Law provided that the compensation shall be “ not less than ” the compensation specified in pre-existing salary schedules, and section 220 of the Labor *193Law prescribes that the compensation shall be “ not less than ” the prevailing rate of wages to be ascertained by investigation of wages paid for comparable work in the community. Nevertheless, we declared that former section 889 fixed “ minimum standards, including minimum pay * * * at the levels existing in New York City on March 5, 1931 ” (Matter of Russell v. Buck, 294 N. Y. 50, 55), and, as to section 220, that it is ‘ ‘ compensation fixed by law ’ ’, which public officials are “ powerless to increase or diminish ” (Wright v. State of New York, 223 N. Y. 44, 47), that “ compensation however fixed which results in the payment of lower wages for a legal day’s work is not in accordance with the statute ’ ’ (McNulty v. City of New York, 238 N. Y. 29, 33), and that “ No officer or board can nullify that obligation by fixing wages at a lesser amount.” (Matter of Gaston v. Taylor, supra, 274 N. Y. 359, 364.) A striking illustration of the respect heretofore paid to the exclusive fixation of wages for laborers and mechanics by section 220 is our holding that a statute increasing the compensation of employees in the public schools did not apply to mechanics there employed. (See Schwartz v. Board of Educ. of City of N. Y., 239 N. Y. 566, affg. 209 App. Div. 738.) 2
Payment of the prevailing rate of wages to mechanics in an amount greater than the maximum “ fixed for their grades,” does not, I repeat, promote them to any higher grade without competitive examination. Both before and after the 1938 “ reclassification ” from Part 1 to Part 39, there was only one grade of mechanic provided for, with duties and qualifications varying according to the specialty involved. The “ grading ” of such positions had no effect whatsoever on mechanics as such. No higher grade of mechanic was provided to which petitioners could be promoted, the only possible promotions being to foreman and supervisor — except from helper to maintainer. Nor did the grading make any change in petitioners’ rank or duties in relation to their supervisors; it left them in the same relative positions that they occupied as *194ungraded mechanics. Petitioners are not seeking the wages paid a foreman for a foreman’s work. They ask only for a mechanic’s pay, at the prevailing rate, for the mechanic’s work which they are in fact performing, and for which they have already established their qualifications in strict accordance with civil service requirements.
That the prevailing rate may vary is beside the point. No doubt it will vary, but so presumably will the pay for other public employment, not compensated at the prevailing rate. We may take judicial notice of the fact that many changes have been made by the city recently, and that others are proposed in its current budget. Great as are the merits of the civil service system, it was never considered as a device for wage stabilization. Such variations would not, as charged, result in “ the same compensation regardless of grade, achievement or experience ” (opinion, p. 182). Under no circumstances would a helper ever be entitled to the prevailing rate paid to a fully qualified maintainer (car or structure), nor would the latter ever be entitled to the pay specified for a foreman. And, beyond all that, mechanics may not properly be paid fixed wage rates when the legislature has decreed that their wages shall be adjusted periodically to reflect the wages paid for comparable services in private industry.
Neither Wood v. City of New York (supra, 274 N. Y. 155), nor Matter of Gaston v. Taylor (supra, 274 N. Y. 359)- — upon which respondents rely — requires a different result. Wood was examined for and appointed as an inspector of light and power, grade 3, with maximum compensation of $2,760 annually. The civil service duties of his position did not require him to perform any of a mechanic’s duties and, therefore, the court ruled, section 220 of the Labor Law did not fix or determine his compensation. While Chief Judge Crane wrote in the Wood case that “ There is force in the argument that section 220 of the Labor Law was not intended to apply to competitive positions ” (p. 159), it is evident that it does not represent the present law. Just a month after the Wood decision, we actually ruled in the Gaston case (supra, 274 N. Y. 359, 363), that section 220 did apply to the position of structure maintainer which was then classified in the ungraded part of the competitive class. The statement in that *195case that section 220 applied to mechanics in the “ ungraded ” category — in the competitive classification, of course — simply construed the statute as applicable to the classifications then in existence, but did not limit the application of the statute or any classification or grading of mechanics that might be made in the future. There was no need to decide any such question for there were then no mechanics in the graded service. It was not until a year later, as already observed, that mechanics in city departments were classified into grades, under Part 38, at “ the prevailing rate of wages * * * as determined by law.”
The city admits that the positions of petitioners could have been graded similarly. On the other hand, the city claims that all employees now under Part 38 — where the compensation of the grades “ is fixed at the prevailing rate of wages * * * as determined by law ” — could be reclassified so as to deprive them of the prevailing rate now paid to them. If that is so — and there can be no doubt that it is — section 220 ceases to be a state-declared policy (Austin v. City of New York, supra, 258 N. Y. 113, 117), and becomes an act of grace on the part of local officials, to be granted at a whim or withheld by a pen stroke. It is difficult, nay impossible, to recognize here the law described by us as a legislature-created “ obligation which extends to all public authorities ”. (Matter of Gaston v. Taylor, supra, 274 N. Y., p. 364.)
Since, then, I believe that section 220 entitles petitioners to receive the prevailing rate of wages for the work that they perform, I find it unnecessary to consider whether that right is conferred directly by section 17 of article I of our State Constitution. We have heretofore had no occasion to pass upon that question. The constitutional provision was admittedly modelled on the Labor Law section (3 New York Constitutional Convention of 1938, Revised Record, pp. 2200-2229), and, indeed, but a short time before that constitutional provision was drafted and submitted to the 1938 Convention, this court actually held that, despite the “ letter of the statute ” — which in terms limited its application to employees of contractors on public works — section 220 was applicable to public employment as well as public contracts. (See Matter of Gaston v. Taylor, supra, 274 N. Y. 359, 363; see, also, Wood v. City of *196New York, supra, 274 N. Y. 155, 158; Ryan v. City of New York, 177 N. Y. 271, 273; McAvoy v. City of New York, 52 App. Div. 485, affd. 166 N. Y. 588.) While this consideration is not conclusive, it indicates to me the further difficulties which must be surmounted in achieving the result reached by the court.
It was asserted upon oral argument that serious fiscal consequences may ensue to the city unless its contentions are sustained. If for that or any other reason the long-established policy of the state, as expressed in section 220, is to be abandoned or modified, the method is, of course, further legislation (cf. Assem. Int. No. 2829, Pr. No. 2974, Feb. 19, 1952), not nullification.
The order appealed from should be reversed, the comptroller’s report and finding annulled, with costs, and the matter remitted to that official with instructions to investigate and determine petitioners’ prevailing rates of wages pursuant to section 220 of the Labor Law.
Loughran, Ch. J., Desmond, Dye and Froessel, JJ., concur with Lewis, J.; Fuld, J., dissents in opinion; Conway, J., not sitting.
Ordered accordingly. [See 304 N. Y. 759.]
. This is graphically illustrated in the record:
Bate
Title
Cents per Hour
Car Maintainer “A” (Car Body) .75 -.95
Car Maintainer “ B ” (Machine and Bench Work) .75-.95
Car Maintainer “ G ” (Painting) .75-.95
Car Maintainer “ D ” (Welding) .75 - .95
Car Maintainer “E” (Electrical Equipment) .75-.95
Car Maintainer “ F ” (Trucks) .75-.95
Car Maintainer “ G ” (Sheet Metal and Forge) .75-.95
Structure Maintainer “A” (Carpentry) .75-.95
Structure Maintainer “ B ” (Masonry) .75-.95
Structure Maintainer “ C ” (Iron Work) .75-.95
Structure Maintainer “D” (Sheet Metal Work) .75-.95
Structure Maintainer “ E ” (Plumbing) .75 - .95
Structure Maintainer “F” (Sign Painting) .75-.95
Structure Maintainer “ G ” (Painting) .75-.95
Maintainer’s Helper “A” (Electrical) .63-.73
Maintainer’s Helper “ B ” (Mechanical) .63-.73
Maintainer’s Helper “D” (Structure) .63-.73
For each of these separate and distinct competitive civil service titles, the incumbents must demonstrate their merit and fitness by passing an appropriate examination.
. Matter of Ryan v. Kaplan (240 N. Y. 690), Matter of Beggs v. Kern (284 N. Y. 504), and the other cases cited by Judge Lewis in his opinion (pp. 181-182) involve employees whose compensation was not fixed by statute, and, consequently, they do not impair the authority of the decisions to which I have referred.