Chittenden v. . Wurster

Haight, J. This action was brought by taxpayers of the city of Brooklyn against the fiscal officers of the city and eleven individuals who were appointees in the various departments of the city government to enjoin and restrain the fiscal officers of the city from paying to any of the appointees the salary earned by them respectively. The eleven employees were appointed to the positions held by them since the first day of January, 1895, without competitive examination ; and the claim is that such examination in each case was practicable, and that every appointment without such examination was in violation of the provisions of the Constitution which went into force on that day. Civil service first had its introduction in this state in the year 1883 by the passage by the legislature of chapter 354. That act has been several times amended; it related to appointments to be made in the civil service in the state and cities; and at the time of the adoption of the new Oonstitu- , tion, in substance provided that the governor, with the advice and consent of the senate, should appoint three persons as civil service commissioners of the state; that they should aid him in preparing suitable rules for carrying the provisions of the act into effect; and when the rules should be promulgated, it should be the duty of all officers of the state, in the departments and offices to which such rules relate, to aid in all proper ways in carrying the rules into effect. The rules were required to provide and declare,- as nearly as the conditions of good administration will warrant: “ 1. For open competitive examinations for testing the fitness of applicants for the public *351 service now classified or to be classified liereunder. Such examinations shall be practical in their character, and, so far as may be, shall relate to those matters which will fairly test the relative capacity and fitness of the persons examined to discharge the duties of that service into which they seek to be appointed. 2. All the oifices, places and employments so arranged or to be arranged in classes, shall be filled by selections from among those graded highest as the results of such competitive examinations. * * * 7. There shall be noncompetitive examinations when competition may not be found practicable.” It was made the duty of the governor, within four months, to cause to be arranged in classes the several clerks and persons employed or being in the public service, for the purposes of an examination, and he was required to include in one or more of such classes, so far as practicable-, all subordinate places, clerks and officers in the public • service of the state. Thereafter no officer or clerk was permitted to be appointed, admitted or promoted in either of the classes arranged by the governor until he had passed an examination or had shown himself to be exempted from such examination. It was made unlawful for the comptroller to draw his warrant for the payment of any salary or compensation to any officer, clerk or other person in the public service of the state in either of the classes arranged by the governor, who was not certified as having been appointed in pursuance of the law and of the rules and regulations made thereunder. In each of the cities of the state in which rules and regulations had been adopted under the provisions of the act, every officer thereof whose duty it was to sign or countersign warrants, was prohibited from signing or issuing any warrant on the treasurer, or other disbursing officer of such city, for the payment of the salary of any person in its service whose appointment had not been made in pursuance of the provisions of the act and of the rules in force thereunder, and any sums paid contrary to the provisions of the act, it was provided, might be recovered from any officer signing or countersigning warrants for the payment *352 of such salaries, and from the sureties on his official bond, in an action in the Supreme Court maintained by any resident citizen taxpayer. (Section 7, as amended by L. 1894, ch. 681.) It was further provided that (§ 8): “ The mayor of each city in this State is authorized, and is hereby directed, to prescribe such regulations for the admission of persons into the civil service of such city as may best promote the efficiency thereof and ascertain the fitness of candidates-in respect to character, knowledge and ability for the branch of the service into which they seek to enter, and for this purpose he shall, from time to time, employ suitable persons to conduct such inquiries and make examinations, and shall prescribe their duties and establish regulations for the conduct of persons who may receive appointments in the said service. And the regulations so to be prescribed shall, among other things, provide and declare as in the second subdivision of the second section of this act is provided and declared in reference to regulations for admission to the civil service of the state. Within two months after the passage of this act it shall be the duty of each of said mayors, in and by such regulations, to cause to be arranged in classes the several clerks and persons employed or being in the public service of the city of which he is mayor, and he shall include in one or more of such classes, so far as practicable for the purposes of the examination herein provided for, all subordinate clerks and officers in the public service of the said city to whom his ¡lower under this act extends. After the termination of three months from the passage of this act no officer or clerk shall be appointed, and no person shall be admitted to or be promoted in either of the said classes now existing or that may be arranged hereunder pursuant to said rules, until he has passed an examination, or is shown to be exempted from such examination, in conformity with such regulations. Such regulations hereafter prescribed and established, and any subsequent modification thereof, shall take effect upon the approval of the Hew York Civil Service Commission. * * ' * It shall be the duty of all those in the official service of any such city to conform to and comply with any regulations made pur *353 suant to this act, and to aid and facilitate in all reasonable and proper ways the enforcement of all regulations and the holding of all examinations which may be required under the authority conferred by this section. * * * And all examinations herein authorized shall be public, and all regulations shall be published.” (As amended by L. 1894, ch. 410.) Under .the provisions of this statute it was made the duty of the mayor of the city of Brooklyn to arrange in classes all clerks and persons employed in the public service of the city, and to include in one or more of such classes, so far as practicable for the purposes of a competitive examination, all the subordinate clerks and officers in the public service of the city. In compliance with these provisions, the Honorable Seth Low, then mayor of the city, did prescribe rules and regulations for the admission of persons into the public service of the city, and did arrange a class known as “ Schedule A,” in which were enumerated the positions in which he did not deem a competitive examination practicable; and another class known as “ Schedule B,” containing positions in which he required a competitive examination as a condition precedent to an appointment. Among others he classified as positions in “ Schedule A ” that of clerk to the committees of the board of aldermen, warrant clerk in the department of finance, dock-master in the department of finance, chief clerk in the department of audit and law clerk in the department of law. These rules and regulations went into operation under his administration and ever since have continued to be in force, except as to the following modifications made by his successors : Mayor Charles A. Schieren classified the clerk in the department of health, the surveyor in the department of assessments, the secretary in the department of buildings, and the deputy license clerk in the city clerk’s office, in “ Schedule A; ” and Mayor F. W. Wurster, one of the defendants herein, classified the license fee collector in the department of fire in “ Schedule A.” The head of each of these departments was required to and has given the usual official bond. The eleven appointees, *354 defendants, were appointed to the positions above named, classified in “ Schedule A.” They were not, therefore, required to pass a competitive examination, unless the classifications made by the mayors were in conflict with the provisions of the Civil Service Statute, or violative of the provisions of the Constitution. The Constitution, article 5, section 9, provides that “ appointments and promotions in the civil service of the state, and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive; provided, however, that honorably discharged soldiers and sailors from the army and navy of the United States in the late civil war, who are citizens and residents of this state, shall be entitled to preference in appointment and promotion, without regard to their standing on any list from which such appointment or promotion may be made. Laws shall be made to provide for the enforcement of this section.” The concluding clause, to the effect that laws shall be made to provide for the enforcement of this section, would seem to indicate that it was within the contemplation of the constitutional convention that some legislation would be necessary. The Civil Service Statutes were limited to the state and the cities. The Constitution extends the civil service to all the civil divisions of the state, including villages. Counties and towns are the civil divisions of the state, and are, therefore, with villages, now included in the civil service. Appointments and promotions “ shall be made according to merit and fitness.” This provision is doubtless mandatory. It asserts a duty which has always existed, and devolves upon every appointing officer of ascertaining the merit and fitness of the persons appointed by him to official positions. Then follows the provision : “ To be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive.” In order to have a satisfactory and effectual competitive examination there must be some person to examine and decide, some place fixed, and *355 notice given in order that the applicants may be able to appear and have a hearing. The Constitution has made no provision with reference to the appointing of examiners, or for the manner in which the examinations shall be made, or how the qualifications of the applicants shall be determined. This it has left to the legislature. This view is in accord with the former determinations of this court. In the Sweeley Case (12 Misc. Rep. 174), Judge Herrick, in discussing this provision of the Constitution, says that it does not prescribe the rules by which it may be enforced, and that it needs legislation to give it life. This case was affirmed by this court without opinion (146 N. Y. 401), and his opinion was especially commended by Judge Bartlett in the Keymer Case (148 N. Y. 219, 224). In the McClelland Case (91 Hun, 101) the same judge discussed this question more fully, and held that the execution of this provision was dependent upon the statute. That case was also affirmed by this court (148 N. Y. 360), and the opinion below was commended by O’Brien, J., who said, with reference to this clause of the Constitution, that it is subject to legislative regulation as to the mode and manner of appointment, and is brought within the operation of general laws on that subject. It is true that in another place he stated that, “If the legislature should repeal all the statutes and regulations on the subject of appointments in the civil service the mandate of the Constitution ■would still remain, and would so far execute itself as to require the courts, in a p>roper case, to pronounce appointments made without compliance with its requirements illegal.” But, in making this statement, he had reference to the mandatory-provision already alluded to, as appears from the clause immediately preceding, and not to the necessary machinery for the conducting of a competitive examination. This is ajiparent from another expression appearing in his opinion in which he refers to the provision and states that “it was framed and adopted with reference to existing laws which were intended to give it immediate practical operation.” This view is in harmony with that now entertained by us. The provision is *356 mandatory in the respects alluded to, but, as to the machinery necessary for the conducting of a competitive examination, its execution to that extent is dependent upon the statute. In counties, towns and villages, no examiners have been provided or provisions made for the carrying of this clause into effect. It is said that each officer having appointments to make could himself examine the applicants for position, and- in that, way determine who should be the appointee by a competitive examination. Undoubtedly, but it will readily be seen that this system would practically nullify the Civil Service Law and bring it into disrepute. The learned counsel for the respondents says that there was “ neither statutory nor executive machinery for putting the amendment into effect in villages, so it may be well that as t dages the amendment will, until there shall be legislation, remain ineffectual.” We quite agree with him in this regard. What is true with reference to villages is also true with reference to counties and towns. This question has just been considered by us in the case of People ex rel. Inebriates' Home for Kings County v. Comptroller of Brooklyn (152 N. Y. 399), to which we here refer for a further discussion of the question. There were, however, in existence at the time of the adoption of the Constitution the statutes to which we have alluded, which do provide the necessary machinery for carrying into effect the provisions of the Constitution in the state and cities; so that, upon its adoption, in the language of O’Brien, J., in the McClelland case, “it had immediate practical operation.” Article 1, section 16, of the Constitution provides that “ such acts of the legislature of this state as are now in force, shall be and continue the law of this state, subject to such alterations as the legislature shall make concerning the same. But all such parts of the common law, and such of the said acts, or parts thereof, as are repugnant to this Constitution, are hereby abrogated.” Are the provisions of the Civil Service Act repugnant to the provisions of the Constitution? In the Keymer Case (supra) we held that the provision of chapter 344 of the Laws *357 of 1895, which exempted honorably discharged soldiers and sailors in the late civil war from competitive examination, where the compensation did not exceed four dollars per day, was in conflict with the provisions of the Constitution. Bui our attention has been called to no other clause of the statute which appears to us to be repugnant to the Constitution. O’Brien, J., in the McClelland case, says that it was “ framed and adopted with reference to existing laws.” In the Sweeley Case (supra) it was said : “ The Civil Service Law of the state, as it was prior to the adoption of the new Constitution, is, with the' exception of the acts which have been passed relative to soldiers, in harmony with the Constitution.” It is claimed that the Constitution prescribes a different rule for the ascertainment of the merit and fitness of those who are candidates for appointment from that provided in the statute. It is, as we have seen, that the merit and fitness shall be ascertained, so far as practicable, by competitive examination. The statute provides that the governor shall adopt rules which shall provide, as nearly as the conditions of good administration will warrant, for open competitive examination, for testing the fitness of applicants. And again, “ He shall cause to be arranged in classes the several clerks and persons employed or being in the public service, for the purpose of examination herein provided for, and shall include in one or more of such classes, so far as practicable, the subordinate places, clerks and officers in the public service of the State.” And with reference to the cities, the statute provides that the mayor shall prescribe regulations for the admission of persons into the civil service “ as may best promote the efficiency thereof, and ascertain the fitness of candidates in respect to character, knowledge and ability, for the branch of the service in which they seek, to enter.” And again, “He shall cause to be arranged in classes the several clerks and persons employed or being in the public service of the city of which he is mayor, and he shall include in one or more of such classes, so far as practicable, for the purposes of examination herein provided for, all subordinate clerks and officers in the public service of *358 said city,” &c. It will be seen that the language used with reference to the classification in the state by the governor, is, “ The several clerks and persons employed,” while that pertaining to the city is, “ all subordinate clerks and officers.” It is not pretended that the constitutional provision was intended to apply to the heads of departments, but that it only has reference tó the subordinates. The statute requires classification for competitive examination, “ so far as practicable ; ” the provisions of the Constitution are to the same effect. It consequently appears to us that the existing statutes, in so far as they have been considered, with the exception mentioned, aro in harmony with the provisions of the Constitution. We are thus brought to a consideration of the question as to whether the classification made by the mayors of Brooklyn is legal. As we have seen, with the exceptions noted, it has existed for nearly thirteen years without question. This fact, however, may not excuse us from now considering the question, in view of the fact that changes have been made which would render the doctrine of practical construction inapplicable. Iu determining this question, we must have reference to the mandate of the Constitution and of the statute requiring competitive examination so far as practicable. It was evidently contemplated that there were positions in which a competitive examination was not practicable. (Matter of Keymer, 148 N. Y. 219.) The counsel for the respondent conceded this, and in his oral argument mentioned a position in the health department, and in his brief, “ a private secretary, or an officer or attendant especially assigned to an executive or judge.” The reasons for exempting the private secretary of the governor, or the personal attendant upon a judge, exist with equal force with reference to many other positions, and it would be manifestly unjust to limit the exceptions to the positions named. In order to determine whether the examination of a candidate for an office is practicable, we must first ascertain the nature and character of the duties of his position. Having ascertained the facts, the question of exemption then, *359 doubtless, becomes one of law, as was held by the majority of the judges composing the Appellate Division. In the classifications which have been heretofore made in the state and cities, there has been a reservation from competitive examinations of those occupying confidential relations to the appointing officer; this it is now claimed is unauthorized, for the reason that confidential relations are not mentioned in the Constitution. It is conceded, however, by the respondent’s counsel that, as to the positions mentioned by him, they ought to be excepted. Confidential positions must be classified either one way or the other. Competitive examination is or is not practicable as to such positions. We have carefully read the evidence in this case, and not a ivord have we found tending to show that a competitive examination is practicable for a position where the appointee is to receive, open, read and answer the letters of his chief, where he is to counsel and advise him with reference to the conduct and management of his office, sign his name to checks or warrants, collect and pay out his money, have the combination of his safe and the custody and control of its contents. A candidate may be ever so competent and still lack many of the necessary elements of a trustworthy officer; he may be ever so learned and still lacking in judgment and discretion ; he may be discreet and still without character; he may be honest and yet meddlesome and a person in whom you could not confide. To our minds the framers of the Constitution or of the statutes never contemplated or intended that a competitive examination was practicable for such a position. What places should then be included in the confidential list ? This question may not be easy of solution. Facts may arise with reference to positions which are now unknown, or not presented by the record before us, which we cannot foresee or now consider. We can, therefore, only speak generally upon the subject, leaving individual cases for consideration when they arise. We think the Civil Service Laws should have a reasonable interpretation and should be made as practical as possible, and that we should avoid a construction *360 rendering them so burdensome as to array public sentiment against them. We have recently had occasion to consider this question to some extent in the Crummey Case (152 N. Y. 217). That case arose under another statute, but was so closely akin to that under consideration as to give it an important bearing. We then regarded and still consider that case upon the border line, beyond which we should not go. We then were of the opinion that where the duties of the position were not merely clerical, and were such as especially devolved upon the head of the office, which, by reason of his numerous duties, he was compelled to delegate to others, the performance of which required skill, judgment, trust and confidence and involved the responsibility of the officer or the municipality which he represents, the position should be treated as confidential. We have not changed our views upon the subject. We think that this rule, properly applied, will not prove unreasonable, and that it will not exempt from examination many positions. It doubtless would relieve one warrant clerk in an office where the duties were the same as those which devolve upon Ortunmey; but the work of an office would have to be great, and it would have to distinctly appear that one could not discharge the duties of the position in order to justify the exemption of more than one. We have said that we did not think this rule would prove unreasonable ; should time and experience prove that we are in error in this regard, we shall not hesitate to apply further limitations, so as to carry out the spirit and intent of the law. We are urged to limit the positions in the confidential class to those which are strictly secret. Most of the public offices are conducted openly, and every citizen has the right to know what transpires. The strictly secret positions authorized are comparatively few, and are of far less importance than those where the appointee is intrusted with the drawing and signing of warrants for the payment of millions of dollars of the public money. Such a construction would be too narrow and burdensome, and we think not justified. As to the other positions in which competitive examination is not practicable, *361 the statute itself furnishes a satisfactory rule; it provides as follows : “ Officers elected by the people and the subordinates of any such officer, for whose errors or violation of duty such officer is financially responsible, and the head or heads of any department of the city government and persons employed in or who seek to enter the public service under the educational departments of any city, and any subordinate officer who by virtue of his office has personal custody of public moneys or public securities, for the safekeeping of which the head of an office is under official bonds, shall not be subject to the regulations prescribed pursuant to this section.” (§ 8, as amended by L. 1884, ch. 410.) This statute bears the impress of careful study and thought. Under our system of government it has been thought wise to hold public officials to strict accountability for the management of their offices and for the faithful accounting for public moneys coming into their hands. So strict is the law in this regard that in most eases they are held responsible for losses which occur even without their fault. (Tillinghast v. Merrill, 151 N. Y. 135.) To insure an accounting they are required to give official bonds. If they delegate to appointees the handling of public moneys, they still remain responsible for their acts and usually protect themselves by requiring such appointees to furnish bonds. All these facts were evidently taken into consideration in framing the provision in question. It was not thought to be just to hold an official responsible for the acts of an employee who necessarily had the custody of public moneys when the official had no choice in his selection. Under the rules established by the civil service commission, the appointment must be made from a list of three who are certified as standing the highest. Neither of the three persons may be personally responsible. The officer has no power to demand a bond or other security; and yet, upon his own personal responsibility he may be compelled to intrust the appointee with the handling of the entire tax receipts of a state, or of a large and populous city. The legislature was not willing to release officials from responsibility for public moneys, and it did not deem a *362 civil service examination as practicable or a sufficient protection to such officers; it, therefore, and we think properly, exempted such positions from the general operation of the act. The provision with reference to those seeking to enter the employment of the educational departments of the city relates to teachers in schools. There are other statutes which require them to pass an examination and obtain a certificate before they can be employed. This examination was deemed equivalent to that required under the Givil Service Acts, and they consequently were exempted. The positions embraced in the above provision of the statute, together with those included in the confidential list, constitute the exempt class, commonly known in the classification as “ Schedule A.” In view of the disposition to be made of this case, we are not now called upon to determine the respective claims of the eleven appointees. We have reached the conclusion that this action ought not to be maintained. The heads of the departments making the appointments had. nothing- to do with the classification; that duty devolved upon the mayor. Under the classification made each of the positions in controversy was placed in “ Schedule A.” The positions in “ Schedule A” required no examination, and consequently no lists were prepared by the examiners from which such positions could be filled. It is not pretended that the mayor was corrupt, dishonest, or that he was actuated by improper motives in making the classification. The duty devolved upon him under the statute; and, until the contrary appears, we must assume that he acted conscientiously and upon his best judgment. Such a classification is not void ; it may be voidable, for his action is subject to review; but, until it is judicially determined that his classification was erroneous, it is a protection to the subordinate heads of departments and employees acting thereunder. The appointments were made in accordance with the statute and the classification as it then existed. They could then be made in no other way; and, until the proper classification had been made, the appointments must be deemed valid. (Curtin v. Bar *363 ton, 139 N. Y. 505.) The same conditions would exist with reference to the positions vacated by the removal of the incumbents, in case this judgment should be affirmed. There would be no lists from which new appointments could be made. Under the system in force, the examiners prepare a list for each office to be filled in the competitive schedule, and the appointments have to be made from that list. The examinations have reference to the particular duties to be performed; consequently, a list prepared for bookkeepers would not answer for surveyors, nor a list for warrant clerks supply applicants out of which doctors could be appointed upon the board of health. While lists have been prepared -for the places enumerated in “ Schedule B,” none have been made for the positions in the exempt “ Schedule A; ” so that, before the head of a department could fill a position made vacant by this judgment, he would have to go to the mayor, get him to revise the classification, and put the position in “Schedule B.” Tie would then have to wait until the examiners could publish the proper notice, make the examinations and prepare a list out of which the appointment could be made. Should the mayor refuse to revise his classification, then the head of the department would be powerless to fill the position, except in the manner in which the defendant’s appointments were made. It is said that the mayor would make the change in the schedule upon the application of the heads of the departments. Very likely; but whether lie would or not, we are not advised. We are considering the legal proposition founded upon the record before us. It does not disclose any willingness on his part to change the classification. The change has not been made, and in determining the legal proposition, we must treat the case accordingly. The people are not, however, without a remedy. There is one which is very simple and effective; if the mayor refuses to do his duty, or if he does it improperly, he may be compelled by direct proceeding, as by mandamus, or perhaps in some cases by certiorari, instituted by any resident citizen, to do it in accordance with the requirements of the Constitution *364 and of the statute. The courts have the power to compel the discharge of such duties. By making the classification conform to the statute, heads of departments and officers acting thereunder, making appointments, will not subject their appointees, dependent upon compensation for their' services, to the loss of wages earned or salaries accrued. In this situation it is obvious that the taxpayers’ action is not the appropriate remedy. (Laws 1887, chap. 673; People ex rel. Boltzer v. Daley, 37 Hun, 461, 466; People ex rel. Wright v. Common Council of Buffalo, 16 Abbott’s N. C. 96; affirmed, 38 Hun, 637, on opinion below; appeal dismissed, 101 N. Y. 640; People ex rel. Smither v. Richmond, 5 Misc. Rep. 26, 29; People ex rel. Overton v. Board of Trustees of the Village of Whitestone, 71 Hun, 188; People ex rel. Stephens v. Halsey, 37 N. Y. 344; People ex rel. Case v. Collins, 19 Wendell, 56.) We have to say in conclusion that the duty rests upon the legislature and the courts to enforce the civil service provisions of the Constitution in their letter and spirit. We doubt not that at an early day the legislature will supplement the existing civil service laws by such additional enactments as will cover all the civil divisions of the state, including villages, and furnish a complete system for carrying out the mandates of the Constitution. We have endeavored to solve the complicated problems presented by this appeal so that the appointing officer, the fiscal agent and the appointees shall be protected until final judgment can be had as to the correctness of classification, and at the same time we have pointed out to the citizen the remedies by which he can secure the enforcement of civil service provisions contained in the Constitution and the statutes. The judgment should be reversed and the complaint dismissed.