People Ex Rel. Sears v. . Tobey

Bartlett, J. This is a quo warranto proceeding, under sections 1948 and 1949 of the Code of Civil Procedure, to determine the title to the office of clerk of the Police Court of the city of Syracuse. On the second of January, 1896, the relator, William Sears, having ascertained there, would be a probable vacancy in the office of cleric, passed his civil service examination with a percentage of ninety-four and a half. Immediately thereafter he applied to Frederick W. Thomson, police justice of the city, lor appointment to the clerkship. . On the 22nd of January Robert II. Riclcert, then clerk of the court, tendered his resignation, to take effect at some future time. About the fifteenth of January the police justice applied to the municipal civil service board for the names of persons eligible to appointment as clerk of the Police Court, without prejudice as to whether or not the appointment was a confidential one and not subject to the civil service laws. *385 Thereafter, and about the 22nd of January, the commissioners certified to the police justice three names, William E. Tobey, the defendant, percentage 95; William McDermot, percentage 94-2-, an<! William Sears, the relator, percentage 94J, and at the same time certified that. William Sears had presented due proof that he was an honorably discharged soldier from the military service of the United States in the late civil war. On the 27th day of January the relator applied to the police justice to be appointed clerk of the Police Court and the application was denied upon the ground that the Civil Service Law did not apply to that office and that the relator was not entitled to a preference for the reason that the office was a confidential position and excepted by statute from the provisions of the law giving a preference to soldiers. On the same day the police justice appointed the defendant to fill the.position and he has ever since continued to discharge the duties of that office. The learned counsel for the defendant has ably argued a number of points in support of his contention that the defendant is entitled to retain his office. It is first argued that the clerk of the Police Court is a member of the civil service of the state and not of the city. By section 7 of the Civil Service Act, as amended by chapter 681 of the Laws of 1894, the state commission is required to certify to the comptroller the names, &c., of those in the public service of the state, and in cities the financial officers are required to draw their warrants for the payment of persons duly appointed pursuant to the civil service regulations prescribed by the respective mayors. We agree with the learned Appellate Division in the conclusion it reached in its opinion overruling the demurrer to the complaint, that this office exists by virtue of the charter of the city of Syracuse and is filled by an appointment made by the police justice of that city. The office of police justice is created by the charter of the city; the salary of the clerk is fixed by the common council *386 of the city and is payable out of the funds thereof, and it follows that the clerk of the Police Court is in the civil service of the city of Syracuse, and the mayor of that city had power to provide that the office must be filled by a person certified as eligible thereto by the civil service examiners of that city. It appears by the civil service regulations in force in the city of Syracuse at the time this proceeding was instituted that the office of police clerk was classified in Schedule B, which contained a list of offices to be filled .upon competitive examination. This shows the practical construction that had been placed upon the office under the law by the municipal civil service board of the city of Syracuse. The next point to be considered is the contention that this office is a confidential one, and, therefore, could not be included in the competitive list. The charter of the city of Syracuse (L. 1885, ch. 26) was amended in 1895 (Ch. 336) in relation to the duties devolving upon the clerk of the Police Court. Section 51 reads as follows : “ The police justice of said city shall appoint a clerk, who shall receive an annual salary to be fixed by the common council, in their discretion, and not to exceed one thousand dollars, payable in monthly payments, and shall hold office at the pleasure of the police justice, and shall have power to take oaths and acknowledgments, to examine under oath the informant and prosecutor and any witnesses he may produce, and take their depositions in writing, and cause the same to be subscribed by the parties making them, and to adjourn trial or proceedings in the absence of the police justice. The police justice may issue warrants upon depositions taken by the clerk as herein prescribed.” Section 58 provides that the clerk shall file with the city a bond with sureties in the penal sum of one thousand dollars, to be approved by the mayor and conditioned for the faithful discharge of the duties of his office. Section 59 prescribes further duties for the clerk, to the *387 effect that he shall keep a faithful record of the proceedings of the Police Court and the bnsiness pertaining to the office of police justice, which record shall be open to public inspection, and shall properly file and keep all bonds, papers and documents pertaining to said office. Section 60 provides that he shall receive all costs, fines, penalties and dues of every description, and shall pay over to the treasurer from time to time, to the credit of the contingent fund, all moneys received by him, and take his receipt therefor. (Am’d L. 1889, ch. 175.) It is also his duty to present all records kept by him, and all accounts of money received by him, and of any other matters pertaining to his office, to the common council, at such times as it may require or prescribe. From this it would seem that the police justice has no power to determine the duties to be performed by the clerk, as they are indicated in detail by the legislature. We are unable to perceive anything confidential in these statutory duties. The position should doubtless be filled by a man of intelligence, as the duties are such as would require in their performance a fair order of ability. There is nothing secret or confidential as between the police justice and the clerk in the manner in which these duties are to be discharged. Indeed, they are essentially of a public character. The clerk is called upon to handle some money in the way of fines collected, but he is treated as an independent officer, liable to the city, and a bond, with sureties to be approved by the mayor, is exacted for the protection of the municipality. In this connection it may be well enough to consider, in passing, a question of evidence that is presented upon this appeal. After the relator and the defendant had rested their cases respectively, and the relator had put in his proofs in rebuttal, counsel for the defendant stated as follows : “ Hr. Thomson is here now and we wish to show by him the duties of the clerk of the police court.” To this there was a general objection, which was sustained, and the defendant excepted. *388 It is now claimed that this is reversible error. There are two answers to this suggestion. In the first place, it rested wholly in the discretion of the trial judge whether he would permit the defendant to open his case and again place Mr. Thomson upon the stand. He had been examined in chief at length by the defendant and cross-examined by the relator, and permitted to leave the stand without eliciting the proof now sought to be introduced. A less technical and more satisfactory answer is found in the fact that the duties of the clerk of the Police Court, as already intimated, are purely statutory, and, under the circumstances, it was not competent for the police justice to give his opinion as to what were the duties of his clerk, as they had been fully defined by the legislature. We think this evidence was properly, excluded. The point made by defendant’s counsel, that the classification of this office as a competitive one was abrogated when its duties were enlarged and defined by statute, it is unnecessary to consider, in view of the fact we do not regard the position as confidential. The counsel for the defendant in his next point insists that the form of the judgment is improper; that the utmost to which the plaintiff was entitled in any event is a judgment of ouster, and it was not competent for the court to induct the relator into office. This is a question of great importance, as a failure to provide, in a final judgment, for inducting the relator into office, will compel a resort to further litigation before his rights are finally determined. My individual opinion is that the police justice, having decided to make an appointment of clerk, and receiving from the civil service commissioners three names from which1 to make his selection, the relator being the only veteran of the civil war, the Constitution compelled his appointment, and in fact worked that result precisely as the expressed will of the People at the polls ousts the candidate holding the certificate of election and seats the one actually elected. *389 As the majority of the court are unable to adopt this view, I am instructed to present the conclusions upon which this branch of the decision "rests. The .written appointment of the relator to the position by the police justice is necessary before the court in quo warranto proceedings can decree that he be inducted into office; that in the absence of such appointment the jurisdiction of the court is exhausted when it determines that the defendant is unlawfully in possession of the office, and orders a judgment of ouster, thereby creating a vacancy; that the relator is entitled to compel the police justice to appoint him to the position of clerk by the writ of mandamus. The defendant urges in a further point that the relator failed to prove his allegations as to the civil service regulations of the city of Syracuse and consequently any violations thereof. In other words, it is insisted that no common-law proof was made of these regulations. They consist of those prescribed by Mayor Ryan in 1884 and the amendments thereof by Mayor Amos in January, 1895. The provisions in regard to the clerk of the Police Court are contained in the regulations of Mayor Ryan. The relator endeavored to produce the original regulations of Mayor Ryan, and proved that they could not be found with the civil service board or in the office of the city clerk, although at one time on file in the latter office. He introduced the amendments to the regulations of Mayor Ryan made by Mayor Amos, found on file with the civil service board, with the approval of the state civil service board and its seal attached, and proved the signature of Mayor Amos thereto. Relator also introduced in evidence the regulations on file with the municipal civil service board, on which they acted. These were all approved and attested by the state civil service board with the seal attached. Relator then introduced a certified copy of the proceedings of the state board, approving the civil service regulations of the city of Syracuse, and copies of the regulations of Mayors Ryan and Amos on file *390 in the office of the state civil service commission, duly approved by the state civil service board. These were all certified by the secretary under the seal of the commission of the Hew York civil service commission as a true and correct transcript from the records of the commission and in his custody, and of the resolutions, minutes and proceedings of the commission in relation to the approval of the civil service regulations prescribed by the mayor of the city of Syracuse, and all amendments thereto, and of the whole thereof; and also as true and correct copies of all civil service regulations prescribed by said mayor and amendments made by him thereto and on file in the office of said commission. There was a general objection that these papers were not properly certified, but no specific ground was stated pointing out wherein they were defective. It is now insisted that they failed to comply with section 951 of the Code of Civil Procedure, which provides that where the transcript or certified copy of a record is declared by law to be evidence, and special provision is not made for the form of the certificate in a particular case, the person authorized to certify must state in his certificate that it has been compared by him with the original and that it is a correct transcript therefrom and of the whole of the original. The failure to state in the certificate that it had been compared with the original is the point now taken. It is a sufficient answer to the objection that it was general in form and should have pointed out the specific defect so that it might have been corrected at the trial. Still another answer is that this certification is a substantial compliance with section 933 of the Code, that provides for the certification by the secretary or clerk of any public body or board appointed in pursuance of law, under his hand, of the records in his office. This certificate is very full and complete and avers that the co¡DÍes annexed are true and correct, of all the papers and amendments and of the whole thereof, and sufficiently proved the civil service regulations of the city of Syracuse. *391 There are other points we do not deem it necessary to consider in detail. We think there was a proper certification made by the municipal board in regard to the relator’s status as a veteran. We are also of opinion that there was no question of fact to be submitted to the jury. The evidence upon which it was asked to go to the jury sought to reveal the relator’s motive in applying for this office, which was wholly immaterial. The final judgment appealed from is hereby modified, so as to strike therefrom any provisions which induct the relator into tire office of clerk of the Police Court of the city of Syracuse, and as so modified is, in all respects, affirmed, together with the interlocutory judgment, and all orders from which an appeal was taken to this court, with costs.