Seeley v. Franchot

included. By section 9 of the same article it is provided: “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.” By the last clause of that section the Legislature is expressly commanded to enact laws which shall make the pro- ■ visions of the section effective. It attempted to do so by enacting chapter 370 of the Laws of 1899,' section 20 of which^[2] requires the appointment of honorably discharged soldiers, sailors and marines to be made, practically in the language of section 9 of article 5 of the Constitution; and by section 21 of said act^[3] the power of removal is limited'as follows: “No person holding a position by appointment or employment in the State of New York or in the several cities, counties, towns or villages thereof, who is an honorably discharged soldier^ sailor or marine, having served as such in the Union army or navy during the war of the rebellion, * * * shall be removed from such position or employment, except for incompetency or misconduct shown after a hearing, upon'due notice, upon stated charges, and with the right to such employee or appointee to a-review by a writ of certiorari.” While the power of appointment remains in the Superintendent of Public Works under section 3 of article 5 of the Constitution, concededly such power can only be exercised in the manner provided by section 9 (the civil service section). (People ex rel. McClelland v. Roberts, 148 N. Y. 360 .) In that case it was held that under section 9 of article 5 of the Constitution, appointments in the Department of Public Works must be made subject to the provisions of the Civil Service Act, notwithstanding section 3 of article 5 of the Constitution; and that appointments can be made by the Superintendent of Public Works only in accordance with the provisions of section 9 and the statute which.pro vides for its enforcement. It was also held in that case, as stated in the head note, that “ The civil service section of the Constitution of 1894 is not rendered non-self-executing by the provision therein" that ‘laws shall be made to provide for the enforcement of this section; ’ but "the effect of the section, in connection with the constitutional pro.vision (Art. 1, § 16) 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,’ is to bring all positions in the civil service, not excepted by the statute, within- the operation of the Civil Service Act of 1883 and its amendments without re-enactment,” In other words, it was decided that- the Civil Service Act of 1883^[4] although enacted prior to the adoption of the Constitution of 1894, must be read and construed in connection

. with the provisions of-section 9 (tíre ¿ivil-servicé .section, of the Constitution) -pre- . cisely the Same as if such statute toad been enacted'subsequent. ,to the adoption of such Constitution. In obedience to the command of the civil service section of the Constitution, chapter 370. of the-Laws.of 1899 was enacted subsequent to the adoption of the Constitution, and, as ,we have seen, by section 20',, prefer-; enees are allowed honorably discharged soldiers, sailors and -marines; and-by section 21 the power of removal is limited. Wé think it clear that those sections were enacted in obedience to the mandate of the Constitution (Art. 5, .§ 9), and that it was competent for the Legislature'to provide “ for the, enforcement of this section ” toy preventing the removal of employees without cause or hearing, precisely as it was competent-for it to provide that suck appointments should.be made only in accordance with the provisions of the section. As we have pointed out, unless the Legislature'has the power to .prevent removals# it were idle to attempt to legislate respecting.the method of appointment. The case of Peopl e ex. rel. Killeen v. Angle ( 109 N. Y. 564 ) has no application to the question involved • upon this appeal. There, by Section 3 of article 5-of the Constitution,^[2] the Superintendent of Public Works was given-unrestricted power ito-appoint.and remove employees in that department, and there was then no civil service, provision in the Constitution; no provision which authorized the Legislature to act iu the . premises, or in any manner to restrict or regulate the power of the Superin tendent of Public Works to appoint and remove;, and, therefore,, it was held that '’the Civil Service Law. of. 1883 enacted by .the Legislature, which. attempted to • restrict the power of the Superintendent in that regard, was unconstitutional; but, as we. have seen, when the civil service provision became a part of the Constitution (Art. 5, § 9), it was held in the McClelland Case (supra) that the act of - 1883 became effective and made it necessary for the Superintendent of Public . Works to .make appointments:in accordance with that .provision. In this case, as we have seen, sections 20 and 21 of chapter 370 of the Laws of 1899 were enacted subseq.uently-to the adoption of the Constitution and in obedience to its command that “ laws shall be made to provide for the enforcement of this sec- '. tiou.” (Const, art. 5; §, 9.) For .the reasons indicated we conclude that not only ■ must the Superintendent of Public Works maJke appointments in accordance with the provisions -of the statute (People ex rel. McClelland v. Roberts, 148 N. Y. 360 ), but also that removals of employees in such department can.only be-made in accordance with, the provisions of section 21 of chapter 370 of the Laws of 1899.; and that the removal of the relator was illegal and without authority of law, and that he is entitled to be reinstated in his office and to Mis position. It follows that the order appealed from should toe reversed, with costs, and that the application' of the -relator should toe granted, with costs. . ,