People ex rel. Qua v. Gaffney

Kellogg, J. In People ex rel. Weintz v. Burch (79 App. Div. 156) three persons were upon the eligible list of the city of Middletown for appointment as superintendent of streets. One was a veteran, and .the court determined that he was entitled to the appointment; and the common council having selected, one of the other three, a peremptory mandamus issued requiring the appointment of the veteran. The only difference between that case and this is that here the controversy arises in a village, and the statute requires an examination under the authority and supervision of the State Commission, while in a city the statute requires an examination under the authority and supervision of the municipal commission, but the municipal commission is governed by rules and regulations which are only valid when approved by the State Commission. The State Commission may remove a municipal commissioner for cause and appoint another in his place, and may amend or rescind any rule, regulation or classification of- the municipal commission. In fact, the State Commission is the real force, and the municipal commission acts in a great part at least in subordination to it, registering' its will, practically assisting in carrying out its policies. These provisions make the difference in the examination for city and village officers more apparent than real. Upon all points of interest here the reasoning of the Weintz case is satisfactory and apparently conclusive. It explains the Mosher Case (infra) which was in fact a contest between two veterans standing on the eligible list. The appointing board was :evenly divided and made no choice. The veteran graded highest on the list of three demanded his appointment and sought to force it by mandamus^ which was denied. He relied upon a statute which required the [124] appointment of the person graded highest on the list. The statute was held unconstitutional (1) as violating the provision that a veteran is preferred without reference to his position on .the list, and (2) in requiring the appointment of the person graded highest on the list it deprived the appointing hoard of all power of selection,, leaving its duties merely formal. The Mosher- case, read with People ex rel. McClelland v. Roberts (148 N. Y. 360), establishes that tire, civil service statutes and rules which require an appointment from three persons upon the eligible list are valid, but a statute which confines the appointment to a single person upon the eligible list is invalid as interfering with the constitutional right of the local authorities to appoint their own, officers. It is, therefore, established that the civil service statute and rules which permit the selection of one; from three persons upon the eligible list are valid, and leaves ample power of selection to the appointing board, but a statute which pon-' fines the appointment to a single person upon the eligible list is invalid as interfering with the constitutional right of the local authorities to. select their own officers. We quote from People ex rel. Balcom v. Mosher (163 N. Y. 40): “ Thus it is seen that the authorities upon the subject and the opinions - of those who have been connected with thé civil service reform from . its inception all agree in the conclusion that the power of selection for a public office is and should be vested alone in the officers or - boards authorized to appoint, although it be limited to persons possessing the qualifications required by the civil service statutes and , rules, and that at least some power of selection is necessary to constitute an appointment, which should be exercised by the local 'authorities, independently of the civil service commission.” We held in Scott v. Village of Saratoga, Springs (131 App. Div. 347) that a statute requiring that only a taxpayer may be appointed : a member of the sewer, water and street-commission was valid as a legislative determination as to the reasonable qualifications of a village officer, and that the Legislature could determine such qualifications (the cases cited in that case give illustrations of the rule), which decision was adopted and approved by the Court of Appeals ; (199 N. Y.178). aThe application of - these familiar rules of constitutional construction removes all doubt or difficulty with respect to the question " [125] under consideration, and the conclusion must follow that, while the power of appointment and removal is still with the superintendent of public works, it is subject to legislative regulation as to the mode and manner, and is brought within the operation of general laws on that subject.” (McClelland Case, 148 N. Y. 367.) In all the cases which have been before the court under the Civil Service Law some statute names the appointing power for the office in question. We are interested in two constitutional and two statutory provisions.* One constitutional provision in substance requires appointments to be made according to merit and fitness, to be ascertained so far as practicable by examinations in such manner as the Legislature may require; the other that local officers shall be appointed by some local authority. One statutory provision provides that the merit and fitness of persons who may be appointed shall be determined by examination by the State Civil Service Commission; the other provides that the appointment of an eligible person to fill the office shall be made by a certain local authority. These provisions all harmonize. The freedom to appoint is left with the appointing power, but the number of the persons who may receive appointment is limited to those of proved merit and fitness. The result of the examination is only that certain persons are found to be ineligible for appointment. I cannot feel that the Civil Service Law violates the letter or spirit of the Constitution which directs that local officers shall be appointed' by local authorities. If the certification of three names in a city does not interfere with the right of the appointing power, .the certification of three names in a village cannot interfere with the constitutional requirement that local officers shall be appointed by local authorities. We have just referred to the Weintz case as an illustration; I think it will be found that the same principle underlies every case under the Civil Service Law, from which the rule must stand that the Legislature is competent to pass laws as to the qualifications of public officials, and may also create a commission charged with the duty of examining and reporting upon the merit and fitness of can [126] didates for public office, and that the action of such commission does not conflict with the appointing power lodged by statute in various boards and persons. The spirit of the constitutional pro-; vision is to remedy abuses theretofore existing by the appointing-power in selecting persons who were really not suitable to be public officers, and the intention was that some outside authority should: present to the appointing board a list of persons who by proper examination had been ascertained to be of sufficient merit and fitness to hold the place, leaving to the appointing power the •selection of any person eligible to appointment. In Chittenden v. Wurster (152 N. Y. 345, 355) Judge Haight,.; writing for the court with reference to the civil service provision of the Constitution, says: “ The provision is mandatory in the respects alluded to, but, as to the machinery necessary for the con-’ ducting 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 to villages the amendment will, until there shall be legislation,remain ineffectual.’ We quite agree with him in this regard.” - The constitutionality of a civil service law cannot be determined by the result of the examination. It is equally valid whether one . person or three qualifies. In this case, if three veterans had qualified, or if no veteran had qualified but three non-veterans had qualified, ample power of selection rested with the local authorities. If . but one person in either case had qualified, that does not prove the invalidity of the law, but simply shows that there .was but one per- .. son of merit and fitness who was desirous of receiving the appointment. In this case we find three persons upon the eligible list, giving the sewer, water, and street commissioner ample power under , the statute and the rules of the Commission for selection, but the [127] constitutional provision gives to the veteran the first preference, and of course it cannot be urged that a provision of the State Constitution is unconstitutional because of other provisions contained therein. The statute and the rules of the Civil Service Commission adopted pursuant to it presented to the sewer, water and street commissioner a list of three eligible candidates, and, aside from the constitutional provision, the local authority might have appointed either one of the three, but the constitutional provision requires that the relator be appointed. I, therefore, favor an affirmance of the order, with costs. All concurred, except Smith, P. J., dissenting in opinion, in which Sewell, J., concurred. Footnotes [*] See Const, art. 5, § 9; Id. art. 10, § 2; Civil Service Law [Consol. Laws, chap. 7 ; Laws of 1909, chap. 15], § 10; Laws of 1902, chap'. 506, § 1, as amd. by Laws of 1906, chap. 603.— [Rep.