Matter of Neubeck v. Bard

*45 O’Brien, J. Petitioner is a disabled veteran of the World war within the definition of section 21 of the Civil Service Law (Cons. Laws, ch. 7). Prior to January 1, 1935, he filed with the State Civil Service Commission and with the Erie County Park Commission a written application for appointment to the position of supertendent of Ellicott Creek Park and a claim for preference in appointment. That position is classified as noncompetitive. May 1, 1935, a vacancy occurred therein and on July 9, 1935, the Park Commission assumed to appoint appellant Cheetham. July 30, 1935, the Civil Service Commission required petitioner and other applicants to submit to non-competitive qualifying examinations for that position; on October 1, 1935, it allowed petitioner’s claim for preference as a disabled veteran and approved his physical qualifications; on January 2, 1936, it determined that he was fully qualified by reason of experience and knowledge, and on January 23,1936, it directed the Park Commission to terminate Cheetham’s employment and to appoint petitioner. Cheetham’s qualifications have never been recognized by the Civil Service Commission. Of all the applicants for that position petitioner’s qualifications are the only ones which have been so recognized. Assuming the invalidity of Cheetham’s appointment, the question remains whether, on this record, petitioner has shown himself to be entitled to compel his appointment. Article V, section 6, of the Constitution, after providing that appointments and promotions in the civil service “ 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,” directs that disabled veterans of the type of this petitioner shall be entitled to preference in, appointment and promotion, “ without regard to their standing on any list from which such appointment or promotion may he made.” Section 21 of the Civil Service Law assumes to grant a *46 preference to the same type of veteran “ without regard to their standing on any list from which such appointment or promotion may be made to all competitive and noncompetitive positions provided their qualifications and fitness shall have been ascertained as provided in this chapter and the rules and regulations in pursuance thereof.” In so far as section 21 refers to positions in the competitive class it does not proceed beyond the authority conferred by the Constitution. • (Matter of Potts v. Kaplan, 264 N. Y. 110, 114.) Section 17 of the Civil Service Law provides: “ The non-competitive-class shall include such positions as are not in the exempt class or the labor class and which it is impracticable to include in the competitive class. Appointments to positions in the non-competitive class shall be made after such non-competitive examination as is prescribed by the rules.” Rule XIX reads: “ 1. The positions in the non-competitive class must be filled by such persons as upon proper non-competitive examinations shall be certified as qualified to discharge the duties of such positions by an examiner or examiners selected or appointed for that purpose by the Commission. The head of any office, department or institution in which there may be a vacancy or vancancies in any position or positions in this class, may name for examination a person for each vacancy * * *. 2. The Commission shall select, appoint and commission examiners or boards of examiners to test the qualifications of persons named for employment in positions in the non-competitive class * * *.” The Park Commission has never named this petitioner for employment or examination for this non-competitive position. In Matter of Merriweather v. Roberts (268 N. Y. 12, 15) this court stated the method by which the Constitution, the statute and the rules provide for appointment to positions in the noncompetitive class. “To fill a vacancy in the noncompetitive class an appointing officer may nominate a *47 candidate for appointment subject to such non-competitive or qualifying examination as the Civil Service Commission of the city shall determine to be appropriate for the position. No appointment may be made until the Commission shall certify that the person is qualified.” In the non-competitive class, as distinguished from the competitive class, no lists are required and, except in one instance, do not exist. The expression “ any list,” as used in the Constitution, means a list, if existing. The process by which an appointment in the non-competitive class is made originates with the appointing power. The language of article Y, section 6, of the Constitution by the incorporation of the words “ any list from which such appointment or promotion may be made ” has reference to the competitive and the labor classes, for the reason that only in those two classes, when a single position is to be filled, lists are required. There is one exception in respect to the non-competitive class by which rule XIX declares that the Civil Service Commission may provide by special regulation that, in any institution where a number of persons are employed in the same grade, the employing officer may name for examination more than one person, in order that there may be a list of qualified persons from which to make an immediate selection in case of vacancy. It is in the event of the existence of such a list that the provision of section 21 of the Civil Service Law relating to a list from which an appointment to a non-competitive position must be made is applicable. The Constitution, the statute and the rules give preference in appointment and promotion only to those disabled veterans whose names appear on an eligible fist. In respect to positions in the non-competitive class the policy of the fundamental law, supplemented by section 17 of the statute and rule XIX made in pursuance thereof, is to allow initiation by the appointing power and, in the absence of a list, to permit discretionary appointment by him subject to proof of merit and fitness as demon *48 strated by a qualifying non-competitive examination. (Matter of Merriweather v. Roberts, supra.) The law contemplates that appointments are to be made to positions in this class by the head of the department exclusively and not by the applicant nor by the Civil Service Commission. Nothing in the Constitution confers upon a veteran a preference in the right to take a qualifying examination for a competitive or a non-competitive position. (Matter of Keymer, 148 N. Y. 219.) Only such persons are eligible for such an examination as are nominated by the appointing power. (Matter of Merriweather v. Roberts, supra.) The decision in People ex rel. Fonda v. Morton (148 N. Y. 156) can have no application to the facts in this record. The opinion in that case states that the only question before the court was whether the relator was entitled to a notice and hearing before he could be removed and the decision was that he had no such right. All that the Constitution intends is that when, as the result of examinations, a list is made up, consisting of those whose merit and fitness have been duly ascertained, then the veteran is entitled to preference in appointment without regard to his standing on the list. (Matter of Keymer, supra.) The orders should be reversed and the petition dismissed with costs in all courts. The certified question should be answered in the negative.