People Ex Rel. Terry v. . Keller

The relator applied for a writ of mandamus, commanding the respondent to reinstate him in his former position of superintendent of the almshouse, in the city of New York. The application was denied at the Special Term and the order there entered was affirmed at the Appellate Division of the Supreme Court, in the first department. Prior to January 1st, 1898, the relator had held such a position under the former city government and when the Greater New York charter went into effect on that date, pursuant to the provisions of section 1536, he was transferred to a similar position in the department of public charities of the new city. That position, from January 1st, 1898, to March 5th, 1898, was classified as competitive, pursuant to the civil service regulations of March 4th, 1897. But, under the regulations adopted by the municipal civil service commissioners of the new city, which went into effect on March 5th, 1898, the position was classified, within schedule "A," as not subject to competitive examination. On March 31st, 1898, chapter 186 of the Laws of 1898 went into effect, which amended sections 8 and 13 of the General Civil Service Act of 1883. Those sections as amended changed the manner in which rules and regulations for appointments and promotions in the civil service should be adopted and put in force, and they gave the right to persons *Page 190 holding positions subject to competitive examination to be heard in explanation before removal from, or reduction in, office. On July 1st, 1898, the relator was removed from office, without notice or an opportunity to be heard. It is the claim of the relator that the provisions of the amendatory act of 1898 applied to those of the Greater New York charter, which regulated the civil service system in that city, and that, therefore, as the rules and regulations of March 5th had not been approved by the state civil service commission, as required by the act, they were of no effect on and after July 1st, "and either the rules of March 4th, 1897, were again in force, or there were no rules in force in the city of New York." That is the situation which the appellant's counsel, in his brief, defines as existing on July 1st, and he argues that, if the rules of 1897 became again effective, his place was within the competitive class and his removal was, therefore, illegal; or, if there were no rules then in force, that he must be deemed to be a person holding a position subject to competitive examination. When the Leet case, (People ex rel. Leet v. Keller,157 N.Y. 90), was decided, the question of the effect of the act of 1898 upon the civil service provisions of the Greater New York charter was discussed in the opinion; but the decision of the case was placed, by a majority of the members of the court, upon the other ground of the opinion, that the act of 1898 was prospective in its operation and recognized to be valid and in force existing city civil service regulations, for the period of time specified in the act as that within which rules and regulations were to be established having the approval of the state board. Leet had been removed from office within that period of time and it followed that his removal was lawful, because effected under regulations at the time valid. It was held that by the act of 1898 a period of time of two months was provided for, within which the mayor of a city was to perform the duty of making regulations and classifications for the civil service system, and that, upon the expiration of that period, the state board had a period of one *Page 191 month within which to take action upon the rules and regulations promulgated and submitted; so that a period of three months would, or might, elapse, before the new legislation could affect such rules as were then in force. In the present case, the question is squarely presented for determination, whether the act of 1898 applied to the city of New York and, in respect to the matters therein enacted, affected its charter provisions. Reflection confirms me in the opinion which I entertained and expressed in the Leet case and I can add little, if anything, to what was said there, or in the opinions delivered at the Appellate Division. I think that when the Greater New York charter went into effect, on January 1st, 1898, it provided for an elaborate civil service system; which, by reason of its features differing from the system provided for in the general act of 1883 in marked and jurisdictional respects, rendered it special and exclusive. The very enactment of the chapter on civil service in the Greater New York charter seems to prove the legislative intent to have been to make a distinct and local system, and that construction is reinforced by the marked and substantial differences apparent in the legislation. If the city of New York was to remain under the operation of the general act of 1883, it was unnecessary to enact the elaborate provisions for a civil service system in the charter. It seems to me to be perfectly clear that the civil service provisions of the charter constituted a special law, as a part of the system of local administration. When the act of 1898 was passed, there was nothing in its language to suggest an intention on the part of the legislature that it should apply to the city of New York. Its title expresses, as does its first section, the sole purpose to be to amend two of the sections of the act of 1883. In no part of it, is there any reference to the Greater New York charter and the only reasons for making the act applicable must be that the city still continued under the operation of the general act of 1883; or, that a reasonable intendment of the enactment, from the subject-matter, could only be accomplished by giving it an application to the city of New York. *Page 192 As to the first reason, I need say no more than what has already been said. As to the second reason, it finds no support in the settled rule of law in such cases. Furthermore, it seems to me to be without force; inasmuch as there appears to be a purpose in making the act solely applicable to the other cities of the state. The amendments applied to the other cities some new features, viz.: those which had been inserted in the Greater New York charter, relating to the appointment of commissioners by the mayors of the cities and to the admission of laborers into the civil service system. Section 1618 of the Greater New York charter expressly provides that neither the act, nor any section, nor provision, thereof, should be deemed to be repealed, or amended, by any act of the legislature; unless it be so expressly stated, or the legislative intent to that effect be unmistakable. That provision is in clear accord with the settled law of the state, that a special statute providing for a particular case, or class of cases, is not repealed by a subsequent statute, general in its terms, unless the intention to repeal is manifest from the language; although, in terms, the subsequent statute is broad enough to cover the particular case. The two laws may stand together; the one as a general law of the state, and the other as the law of the particular case. This proposition should be regarded as indisputable and it has the support of numerous cases, not only in this state, but in other states; which are referred to in the opinion in the Leet case and in the opinion of the Appellate Division. I am quite unable to find a theory to make the act of 1898 fit the case of the city of New York, which will stand the test of the settled rules of law. But, upon the view that the act of 1898 does apply to the city of New York, the relator's case will not be aided. If by reason of the failure to establish civil service rules and regulations, approved both by the mayor of the city and by the state board, those existing prior to July 1st had become invalid and of no effect, then there were no rules or regulations in existence and, consequently, there was no classification of positions in the civil service of the city. The rules and regulations of March *Page 193 5th, 1898, had superseded those which had been established in 1897, and they constituted the only ones regulating the administration of the civil service system. We held in the Leet case that the act of 1898 was only prospective in its operation and that, as the regulations of March 5th were validly made under the provisions of the Greater New York charter, they alone applied to appointments and classifications, within the period of the three months prescribed for the promulgation of new regulations under the approval of the state board. What, therefore, was the situation on July 1st, unless that of an absence of any rules or regulations regulating appointments and promotions in the civil service? The provisions of the act of 1898 were ineffectual of themselves to aid the relator. The classification of his position as in the non-competitive class had not been changed and the act of 1898, ex proprio vigore, could not place it in the competitive class. His appointment to office had been made in accordance with a classification, which was valid at the time and that classification remained good. The legislation did not change it. All that it did was to impose a duty upon the mayor, which had not been performed. The utmost that can be claimed for the act is that it operated to protect positions which had been classified as competitive; but it did not abrogate the regulations which had been made at the time of its passage. To the contrary, it recognized their validity. If its commands with respect to the promulgation of new rules and regulations were not complied with, the courts were open to compel that compliance; but it is certain that it had no effect, of itself, to classify, or to affect any existing classifications. Therefore, as the relator, at the time of his removal from office, was in a position in the non-competitive class, there was neither rule nor regulation in existence to prevent the exercise of that arbitrary power of removal, which is the usual accompaniment of the power of appointment, and by no construction could the provisions of the act of 1898, amending section 13 of the act of 1883, be made applicable to a position in the non-competitive class. *Page 194 I cannot see how the relator could be regarded as entitled to the writ he demanded, whether we hold that the act of 1898 applied to the city of New York, or not; and, therefore, I think that the order should be affirmed, with costs.