For the prosecutor, Donald R. Bryant.
For the respondent, William A. Stevens, attorney-general.
Before Justices Parker, Lloyd and Heher.
The opinion of the court was delivered by
HEHER, J. The prosecutor, who served in the army of the United States in the world war, and was honorably discharged, was, on June 22d, 1928, duly appointed "inspector of accounts" for the state athletic commission. He served in that capacity until April 28th, 1932, when he was notified by the present state athletic commissioner, who took office on
April 20th, 1932, as the first commissioner appointed under chapter 143 of the laws of 1931 (Pamph. L. 1931, p. 266), that his services as such "will no longer be required and will expire as of April 30th, 1932." The return to the writ shows that on May 1st, 1932, the state athletic commissioner advised the civil service commission that "the office of 'inspector of accounts' was abolished by me," and that "this will remove from our payroll records the names of Edward J. Cody and Louis Di Angelo who were submitted under that classification."
The facts were stipulated. Contemporaneously with the service upon prosecutor of the notice of the termination of his services, the athletic commissioner appointed one Flood as "inspector of accounts." Prosecutor protested, and immediately thereafter, according to the stipulation, the athletic commissioner "changed the title of inspector of accounts in relation to the appointment of John A. Flood to that of administrative agent, with the duties the same as that of the prosecutor during his incumbency." No charges of misconduct were preferred against the prosecutor, and he was not given a hearing.
The insistence of the prosecutor is that he was deprived of his position in violation of the provisions of chapter 14 of the laws of 1907 (Pamph. L. 1907, p. 37), as amended by chapter 29 of the laws of 1929 (Pamph. L. 1929, p. 57).
On the other hand, respondent denies that prosecutor has a valid title to the position in question. Chapter 143 of the laws of 1931 expressly repealed chapter 247 of the laws of 1918 (Pamph. L. 1918, p. 945), as amended by chapter 12 of the laws of 1920 (Pamph. L. 1920, p. 28), establishing a state athletic commission, and all other acts amendatory thereof and supplementary thereto, and it is claimed that the act of 1931, in virtue of this repealer, "operates to vacate every position and employment held by virtue of" the acts repealed.
The general rule is that where a statute is repealed, and there is no saving clause or a general statute limiting the effect of the repeal, the ...