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O'Grady v. Polk

132 A.D. 47 Court Second Department, Decision date 1909-04-23 English

Delivered by Jenks, J.:

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p. 47
In the Matter of the Application of William L. D. O’Grady, Appellant, for a Peremptory Writ of Mandamus against Frank L. Polk and Others, as Civil Service Commissioners of the City of New York, and Others, Respondents.
Second Department,
April 23, 1909.

Headnote

Civil service — classification of employees of city clerk of Hew York — mandamus — return conclusive — laches.
Tie board óf aldermen of the city of New York is a legislative body and the. city clerk, who is also clerk of the board of aldermen, elected by them is a legislative officer within the meaning of section 8 of the Civil Service Law and should be placed in the “ unclassified ” service.
p. 48
So, too, clerks appointed by .the city’clerk are legislative officers where it appears that the services rendered by them are in the main, legislative,' even though they perform some duties of another nature.
On mandamus to compel the clerk of the city of New York to request the municipal civil-service commissioners to place employees in his office on the classified list, the return of the clerk showing the nature of the duties of his appointees must be taken as true. . .
Writ denied for laches.
Appeal by the petitioner, William L. D. O’Grady, from an order of the Supreme Court,- made at the.’Kings County Special Term and entered in the office of the clerk of the county of Kings on the 2d day of February, 1909, denying the petitioner’s motion for a peremptory writ of mandamus as a matter of law and not as a matter of discretion. '
The mandamus sought was to the city clerk of the city of Mew York requiring him to request the municipal civil service commission to adopt a rule placing’ all positions in the office of the city clerk of the city of Mew York in the classified service of the civil service of the city, and requiring the municipal civil service commission to adopt such rule, and requiring the mayor arid State Civil Service Commission to approve the same.
' John E. Walker, for the appellant.
William B. Crowell [Theodore Connoly and Francis K. Pendleton with him on the brief], for the respondents.

The city clerk and the clerk of the board of aldermen of the city of New York, for he is necessarily One and the same person (Greater N. Y. Charter [Laws of 1897, chap. 378; Laws of 1901, chap. 466], § 28, as amd. by Laws of 1905, chap. 629), is appointed by that board, which is a legislative body within the purview of section 8 of the Civil Service Law (Laws of 1899, chap. 370, as amd. by Laws of 1902, chap. 270). (Matter of Shaughnessy v. Fornes, 172 N. Y. 323 .)

Bouvier[1] defines législative officers as “.those whose duties relate mainly to the enactment of laws.” Examination of the duties prescribed for the clerk shows that they are of this character. (Charter

* 2 Bouv. Law Dict. [Rawle’s Rev.] 540.— [Rep.

p. 49
§§ 28, 29, 31, 32, 37.) The provision in the charter that he may appoint such deputies or clerks as are necessary to the discharge of his duties (§ 33) is made of course in contemplation of the circumstance that he alone cannot discharge the duties. But in the eye of the law the-duties are discharged by him, although the volume thereof requires the aid of these agents, and if such duties are legislative they still remain legislative. The return of the city clerk and the clerk of the board of aldermen, which we must Tegard as true (People ex rel. Port Chester Savings Bank v. Cromwell, 102 N. Y. 477 ; People ex rel. Dady v. Coler, 171 id. 373), shows that the services rendered by those appointees are in the main legislative. The contention of the learned counsel for the relator is that these appointees are without the unclassified service because they are not appointed by the legislative body, but by the city clerk. This contention is not. justified by the words of the Civil Service Law (§ 8, as amd. supra) applicable to this' case, which are: “ All legislative officers arid employees.” If the Legislature intended to limit such officers .and employees to those directly appointed by this legislative body it could readily have so declared. I think that the qualification of an office or place as legislative is determined by the main duties thereof and not by the fact that the placeman is elected or appointed by the legislative body itself. A.policeman of the city of New York is a policeman none the less, although he is not appointed by the Legislature, the body primarily vested with'the police power. Moreover, these deputies and employees are ajapointed by a legislative officer directly chosen by the legislative body. The method of appointment is but one of convenience and does not affect the character of the duties of the appointees. I am confirmed in the opinion- that such appointees are within the unclassified service by the expression of this court in the first department. (People ex rel. Martin v. Scully, 56 App. Div. 302 .)

It is also contended that these employees are outside of the unclassified service for the reason that they aid the city clerk in the discharge of other official duties cast upon him which are not legislative. Even if this were so, this circumstance would not determine that the duties of these appointees were not legislative, provided they were appointed to discharge legislative duties and the

p. 50
work done by them was mainly legislative. The city clerk and clerk to the board of aldermen returns; that when the board of aldermen and its; committees are in session his force is not sufficient to do the work of that body; that the entire force is engaged in such work ; that the board meets once a week in every month, save in August and September; that its committees meet daily, and that sometimes several committees meet at the same time, and that outside of the lull in summer he and all helpers can only keep abreast; of this work. And he also returns that there is no division of work in his office between the duties of city clerk and thosé of clerk to the . board of aldermen. These allegations, as I have said, must be taken by us as true.

If the relator have, a -grievance, it arose on. January 1, 1898, at the time lie came into the office of the city clerk, and so I am inclined, to the opinion that -the relator has shown laches in his application, (See People ex rel. Miller v. Sturgis, 82 App. Div. 580 ; appeal dismissed, 178 N. Y. 632 .)

The order is affirmed, with costs and disbursements.

Woodward, Gaynor, Burr and Rich, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

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