The question presented by this appeal is whether the relator under his appointment and service as patrolman before the charter of Greater New York took effect, and his continuance in service under that charter and until his alleged promotion from patrolman to roundsman June 1, 1900, was then eligible to such promotion by the board of police because of meritorious police service, without passing the civil service examination required by sections 208 and 304 of the charter of Greater New York, chapter 378, Laws 1897, and by chapter 370, Laws 1899, known as the White Civil Service Act. Section 208 of the present charter provides that promotions in the police force shall be made by the police board as provided in section 304 on grounds of seniority, meritorious police service and superior capacity. Section 304 provides that "promotions from the lower grades to the higher grades shall be on the basis of seniority, of merit and of excellence, as shown by competitive examination. The police board shall transmit to the civil service commission the record of each *Page 451 candidate for promotion." Section 15 of the Civil Service Act of 1899 provides: "Promotions shall be based upon merit and competition and upon the superior qualifications of the person promoted as shown by his previous service, due weight being given to seniority. For the purposes of this section an increase in the salary or other compensation of any person holding an office or position within the scope of the rules in force hereunder beyond the limit fixed for the grade in which such office or position is classified, shall be deemed a promotion. No promotion, transfer or reinstatement shall be made from a position in one class to a position in another class unless the same be specially authorized by the state or municipal commission."
The relator claims exemption from examination for this promotion under section 10 of the act of 1899. This section provides for the creation of the municipal civil service commission, the making and enforcement by the commissioners of rules for the classification of offices, and for appointments and promotions therein and examinations therefor, and provides: "The authority by this section conferred shall not be so exercised as to take from any policeman or fireman any right or benefit conferred by law, or existing under any lawful regulation of the department in which he serves." Substantially the same provision is contained in the Civil Service Act of 1883, section 8, as amended by chapter 410, Laws 1884, and in subsequent acts, and in section 125 of the charter of Greater New York. But no right or benefit is conferred or exists until vested by appointment, and unless made by the appointing power, while yet in possession of the power, it can only be made by the new body to which it is transferred, and then only within the new limitations of that power. If this were not so, then as to the relator the former statutes as to the power of the police board to promote him would be irrepealable. Suppose the relator were eligible to election by popular vote to the office of roundsman, and then the law should be changed making the office appointive upon competitive examination, it could not be supposed that he had been *Page 452 deprived of any existing right or benefit conferred by law. The relator had a capacity to take a right or benefit from the police board, but the board, before attempting to confer it, lost the power to do so. If he had secured promotion before a change in the law, its rights or benefits would not be impaired by the change. The provision protected his title to whatever he had acquired, and whatever he could as of his own right by virtue of that title, without a further appointment, promotion or test acquire. It did not enbrace a future promotion which rested in the power and discretion of others, especially when their power was subject to be divested by law. This distinction seems to have been overlooked in People ex rel. Schelpp v. Knox (48 App. Div. 477).
It can be shown, I think, that before the White Act the assignment, detail or transfer of a patrolman to duty as a roundsman was not in legal sense a promotion, but a mere detail to particular police service. (People ex rel. Buckley v.Roosevelt, 5 App. Div. 168; Consolidation Act, section 271; Charter Greater New York, section 292.) The appellant rests his case upon promotion, not detail.
But passing this question, and assuming that before the passage of the White Act the detail or assignment of a patrolman to permanent duty as a roundsman was in legal sense a promotion, I think that the civil service laws and rules in force at the time of the relator's appointment as patrolman precluded his promotion without the test of a competitive examination. This is satisfactorily shown in the majority opinions of the learned Appellate Division in People ex rel. Grady v. Knox (54 App. Div. 334). This case was argued in the Appellate Division with that case and decided upon the opinions therein given. (Ib. 634.)
It should be noticed that in the Schelpp case the former Brooklyn charter permitted promotion "on account of any gallant or meritorious deed in the discharge of his duty." The Consolidation Act and the charter of the greater city of New York provided for promotions on grounds of "meritorious police service and superior capacity." A "gallant or meritorious *Page 453 deed" is a personal specific act; it speaks for itself, and in its nature excludes competitive examination. "Meritorious police service" admits of competitive examination, is not specific, and opens the door to favoritism. Thus the Schelpp case is unlike this case. While we applaud the services of the relator, we should, nevertheless, advise him to seek his promotion through legal methods, instead of making a breach in them through which the unworthy can pass.
BARTLETT, HAIGHT and MARTIN, JJ., concur with O'BRIEN, J., for reversal. PARKER, Ch. J., and VANN, J., concur with LANDON, J.
Order reversed, etc.