People Ex Rel. Moriarty v. . Creelman

Hiscock, J. This appeal presents the question whether the appellants, constituting the municipal civil service commission of the city of New York, were authorized to prescribe a minimum age limit of twenty-five years for the position of inspector in the bureau of fire prevention. As the result of disastrous fires in the city of New York, resulting in the terrible loss of human life, there was adopted chapter 458 of the Laws of 1912, authorizing the fire commissioner to organize in the fire department of that city a bureau of fire prevention and to appoint officials, subordinates and employees thereof. In addition to other things, it was provided by the statute that all officers and employees of said bureau should “have the powers and perform the duties of peace officers, but their power to make arrests and to serve process in crimi *573 nal actions should (shall) he restricted to cases arising under laws or ordinances relating to fires, fire perils and fire prevention.” While the affidavits are not at all full or complete on this subject, it has been assumed that in this bureau there were created three grades of inspectors and that the duties of such an inspector would be “to inspect buildings with a view to noting all hazardous conditions of construction, occupancy and use as loft, shop, factory, tenement, theatre, etc., to ascertain sufficiency of means of escape; to investigate complaints or reports of officers of the fire department, * * * and to be able to recommend such proper safeguards as may reduce or prevent fire dangers.” It becoming necessary to fill many of these positions, the appellants gave notice that applications would be received at a certain time and place for appointment to grades two and three. Said notice prescribed the duties of an inspector as already set forth and stated that a candidate should have had specified lines of experience which were calculated to qualify him for the discharge of the duties of such a place. It specified details of the examination to be taken by candidates and stated that the minimum age of an applicant must be twenty-five years. It is urged before us as somewhat of a preliminary objection that no proper action was taken by the appellants as a board fixing the qualifications and age limits of a candidate for one of these positions. It is true that the affidavits filed on behalf of the appellants do not set forth these facts. This question, however, does not seem to have been raised on the original hearing, and I think that we are, therefore, justified in assuming that the notice to which reference has been made was in accordance with and preceded by such formal action by the board as was necessary. The relator, who had been serving temporarily in this bureau, made application for permanent appointment to one of these positions, but his application was rejected *574 and he was not allowed to take the prescribed examination because he was under the age of twenty-five years, and he now insists that the act of the appellants in fixing such minimum age limit was unauthorized and should be disregarded, and this view was sustained by the Appellate Division. In the prevailing opinion at the Appellate Division and on the argument of this appeal it is conceded or at least not denied that the civil service commission may fix age limits for applicants for appointment to such a position as this. It sufficiently appears that' the existence of this power has been assumed for many years in the absence of special circumstances by civil service boards, courts and the public generally, and this fact of practical construction is of itself a weighty argument in favor of giving this interpretation if possible to the laws applicable to this subject. Independent of this consideration, however, I think that the statutes fairly warrant this interpretation, and, therefore, shall not take time to review them. Assuming, therefore, that the appellants had the power to fix an age limit for applicants for appointment to this position, the only question which is left for our consideration is whether the age of twenty-five years so fixed was for any reason unauthorized or unlawful. In the first place it is argued that since by the act creating this bureau, and already referred to, it was made a part of the fire department, its employees are governed by the general provision (section 734 of the charter, L. 1901, ch. 466) that “ no person shall be appointed to membership in the fire department * * * ■ who is not over the age of twenty-one and under the age of thirty years, ” and that this provision fixed a minimum age limit of twenty-one years which the appellants could not alter. Although this point was discussed in the opinion of the Appellate Division, we have not had the benefit on this argument of any answer to it by the learned corporation *575 counsel, but have been left to search amongst many statutory provisions relating to the fire department for such light as we might be able to find, and it is possible under these circumstances that we have overlooked some provision bearing on this subject. Subject to this possibility, it seems to me doubtful whether the provision quoted when construed in connection with other provisions is applicable to such a position as the one in question. It does not appear that an inspector has been made a member of the uniformed force, and apparently he is not a “fireman” as that term is used in various places in the statute. Moreover, it does not appear that it would conflict either with the letter or the spirit of the provision in question which requires that an appointee must be “over the age of twenty-one ” to fix a requirement of twenty-five years. (People v. Erie R. R. Co., 198 N. Y. 369, 381, 383.) Thus we come to the remaining and more important question whether general considerations, as distinguished from a specific reason like that discussed, forbade the appellants to fix the age limit in question. The principle of the rule which must govern the decision of this question is found in People ex rel. Schau v. McWilliams (185 N. Y. 92, 99). It was there written that in determining whether a given position should be included in the competitive class of the civil service if “ the position is one, as to the proper mode of filling which there is a fair and reasonable ground for difference of opinion among intelligent and conscientious officials, the action of the commission should stand, even though the courts may differ from the commission as to the wisdom of the classification,” and that only in a case where the action of the commission in making a classification was clearly and palpably illegal would its action be corrected by mandamus. If this be the rule to be followed in considering the action of a commission classifying a position in the competitive class, for instance, the same principle must be logically and naturally applied to the consideration of *576 the tests which may be adopted for appointment to such a position after it has been thus classified. In the absence of some express limitation the action .of the commission in fixing such tests must stand, unless it is so clearly irrelevant and unreasonable as to be palpably indefensible and improper. If any fair, reasonable argument may be made to sustain the action the courts should not interfere, even though they may differ from the commission as to its advisability. Applying this rule, I think it is clear that the action of the commission should not be annulled in this case. The position of inspector was obviously an important one. It demanded not only technical and practical knowledge and experience in the matter of construction and equipment of buildings as bearing on fire risks, but also maturity and safety of judgment in analyzing and estimating such conditions and dangers. As has already been pointed out, such an official, in addition to his other duties, had, within certain limits, powers of executing criminal process, always to be exercised with deliberation and discretion, and various experts who had been consulted on the subject advised the fixing of this minimum age limit. Under these circumstances it seems apparent that the safeguards of a formal examination as to specified experience and practice might very well be supplemented by an age requirement which in the opinion of the commissioners would ordinarily still further insure the possession of such qualifications as were needed for a satisfactory discharge of the duties of the position. Mere experience and knowledge,- evidenced by an examination, do not always develop those qualities of mind and judgment which lead to the useful and satisfactory application of such experience and knowledge. Other things being equal it at least might be fairly argued that a man of twenty-five years of age would be apt to have a more mature and reliable judgment than one of twenty-one years, and therefore, would be better fitted for appointment *577 to one of these very responsible positions. This being so it follows that the commission would be justified, as against the present proceeding, in formulating the requirement which is complained of. The relator did not have any constitutional or inherent right to be appointed to one of these places. The appellants representing the public did have the right to require that before appointment his fitness should be measured and established by any test honestly and reasonably appropriate to that end and such an one it may be fairly claimed was the age limitation. For these reasons I advise that the order of the Appellate Division be reversed and that of the Special Term denying the application for a writ of mandamus he affirmed, with costs in all courts. Cullen, Ch. J., Gray, Haight, Vann, Werner and Willard Bartlett, JJ., concur. Order reversed, etc.