Hammond v. Ricker

Williams, J.: The order should be reversed and the proceeding dismissed, without costs. The applicant for the writ was the corporation counsel of the city of Buffalo, He desired certain positions in his office to be made non-competitive, and the defendants refused to make them such. The Special Term held they were right, except as to one position, and the writ was granted as to that position and denied as to the balance. First. It is objected that the proceeding could not be maintained without making the State Civil Servicé Commissioners parties. This objection is well taken. The defendants cannot alone reclassify, so as to place the offices in question upon the non-competitive list. The State Commissioners must approve their action. If the court were to grant the writ and order such reclassification and the-State Commissioners should refuse to approve, another proceeding would be necessary to secure thé desired relief. This should not be so. The whole matter should be determined in this proceeding. We have substantially so held in People ex rel. Huber v. Adam (116 App. Div. 613). Second. The court was right in refusing to reclassify the offices known as deputy assistant city attorneys, managing clerk, clerk, registrar and detectives. The statute provides that no offices shall be put in the non-competitive class unless they are exempt as provided by the Legislature. (Civil Service Law [Consol. Laws, chap. 7; Laws of 1909, chap. 15], §§ 12, 13, 14.) The exempt class does not in express terms cover these offices in question. They are required to be placed in the competitive class, if practicable, and the only claim made by the applicant is that' it is impracticable to make these positions competitive. Counsel have argued about this question very fully in their points submitted to us, and we have also the opinion of a very careful judge (66 Misc. Rep. 526). He arrived at the conclusion that it was fairly debatable by reasonable men whether proper classification had been made as to these offices, and, therefore, that the writ should be denied. As said in the head note in Matter of Hill (185 N. Y. 106): “While mandamus is the proper remedy to compel a municipal civil service commission to correct an illegal classification [21] of positions in the public service, it will not lie when the determination of the commission does not constitute an abuse of discretion, and it cannot be said, therefore, to be illegal.” And, again, in People ex rel. Schau v. Mc Williams (185 N. Y. 97, 98) it was said: “If it should appear that there was a plain violation by the commission of its duty to classify as competitive an office which was clearly and manifestly so, there should be a remedy in the courts. But there is necessarily a large debatable field as to cases within which there will be great differences of opinion, even among the most intelligent and fair-minded píen, and as to this field it seems to me that.it is not reasonable that the judgment of an appellate court should be substituted for that of the commissioners.” I will not enter upon any discussion of the question as to whether the commissioners acted wisely in their action. It was their discretion and judgment and not ours that was to determine. They did not act illegally, and, therefore, the court could not by mandamus compel them to change their determination. Thvrd. The statute provides that there shall be exempt one secretary of each officer authorized by law to appoint a secretary. The commission failed to comply with this provision and the court, therefore, very properly granted the writ to the extent of requiring this to be done by exempting one stenographer. We should, therefore, affirm the order, except that we must hold that the court could not entertain the proceeding without making the State Commissioners parties. The order must, therefore, be reversed and the proceeding dismissed, but without costs. All concurred. Order reversed and proceeding dismissed, without costs.