Majority
p. 232The People of the State of New York ex rel. Thomas H. Melledy, Appellant, v. John L. Shea, as Commissioner of Bridges of the City of New York, and Others, Respondents. (No. 1.)
Headnote
Oivil service — words “district” and “locality” in section 17 of chapter 370 of 1899 defined — one of the boroughs of New York cannot be divided into several districts with a sepa/rate civil service list in each for bi'idge tenders.The words “district” and “locality,” contained in section 17 of the Civil Service Law (Laws of 1899, chap. 370), which provides that “where the labor service of any department or institution extends to separate localities, the commissions may provide separate registration lists for each district, or locality,” refer tesóme political division of the State created by legislative act and existing at the time the registration lists are furnished.
Such section does not authorize the civil service commission of the city of New York, for the purpose of the appointment of bridge tenders, to divide one of the boroughs of that city into four districts and to maintain separate lists for each one of such districts and to provide that a person upon the list in one district shall not be eligible for appointment in any of the other districts.
O’Brien, J., dissented.
Appeal by the relator, Thomas H. Melledy, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of March, 1902, denying the relator’s motion for a peremptory writ of mandamus.
The relator applied for a peremptory writ of mandamus directing the defendant, John L. Shea, as commissioner of bridges of the city of New York, to make requisition upon the civil service commissioners of such city for the names of persons eligible and on the preferred list of appointments to the position of bridge tender, and
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requiring such civil service commissioners to certify to the commissioner of bridges the names of honorably discharged veterans of the Union army and such other persons as were entitled to a preference in the civil service under the laws relating thereto, who were qualified and eligible for the position of bridge tenders, and declaring void certain appointments theretofore made. The court at Special Term denied the application and the relator has appealed.
It appears from the moving papers that the relator is a citizen of the United States and of the State of New York, and that he now and for more than three years last past has resided in the borough of the Bronx in said city ; that he is an honorably discharged soldier of the Union army and a veteran of the late Civil war; that in pursuance of the Civil Service Laws of the State of New York and the civil service regulations of the city of New York he, long prior to the making of the motion, duly filed an application for the position of bridge tender; that pursuant thereto he was examined, found to be eligible and his name was placed upon the list of persons eligible to appointment to such position; that at the time of the filing of his application he also filed the requisite proof to the effect that he was an honorably discharged soldier of the Union army, having served as such in the late Civil war of the United States, and that his name stood first upon the eligible list for the position of bridge tender of persons unemployed in the borough of the Bronx in said city ; that notwithstanding this fact the civil service commission of the city of New York on the 21st of July, 1901, certified to the commissioner of bridges the names of certain other persons and did not certify the relator’s name; that the commissioner of bridges, upon receipt of such list so certified, appointed such persons to positions of bridge tenders upon the City Island bridge, and in August following the said commissioner of bridges, without making any requisition upon the civil service commission, appointed two other persons as bridge tenders on the Willis avenue bridge ; that none of the persons thus appointed were veterans of the Union army or navy, and none had ever served in any volunteer fire department of the State, and that at the time of such appointment it was known to such civil service commission and to said bridge commissioner that the relator was a veteran and entitled by reason thereof to a preference in appointment, and.that the persons appointed were not
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entitled to a preference, and the relator demanded that his name be certified by the civil service commission to the bridge commissioner, and that he be appointed by such commissioner to one of the places thus filled, and that the appointments theretofore made, in so far as they conflict with his rights, be declared void.
■ These facts were not denied by the respondents, but they alleged, in answer to the relator’s application, that the civil service commission, acting in pursuance of section 17, chapter 370 of the Laws of 1899, and certain rules adopted and promulgated in pursuance thereof, had divided the borough of the Bronx into four districts and the borough of Manhattan into one district, and had determined, on account of the transportation facilities, that there should be four lists of bridge tenders in the former and one in the latter; that the relator resided in district Ho. 1 of the borough of the Bronx, and his name was placed upon the list of persons eligible for appointment in that district, and that he was not eligible for appointment in any of the other districts; that the names certified to the bridge commissioner were of persons to fill places in district Ho. 3 in the Bronx, and it was for this reason that the relator’s name was not certified, and that as to the persons appointed by the bridge commissioner whose names were not certified by the civil service commission, one of them was transferred from another bridge and one from the dock department.
Joab S. Banton, for the appellant..
Theodore Connoly, for the respondents.
We are of-the opinion that the application of the relator should have been granted. The facts stated by him in his application as entitling him to a preference not being denied, clearly entitled him, under the statutes, to a preference in appointment. The Constitution of the State (Art. 5, § 9), as well as the statutes passed in pursuance thereof, conferred upon him this right. That he was entitled to a preference is conceded, but it is sought to justify the act of the commission in not certifying his name to the commissioner of bridges, and the commissioner of bridges in not appointing him to the position to which he desired to be appointed, by asserting that the civil serv
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ice commission, acting in pursuance of section 17, chapter 370 of the Laws of 1899, and certain rules adopted in pursuance thereof, subdivided the borough of the Bronx into four districts, and then provided that there should be a separate list for each district, and that an applicant was only eligible to an appointment in the district in which he resided at the time the application was made; that the relator resided in district Ho. 1, and that the commission had only been asked to certify to the commissioner of bridges the names of applicants eligible to appointment to positions in district Ho. 3, and the relator not residing therein, his name was not certified. But the civil service commission had no power to divide the borough of the Bronx into four districts. The statute confers no such power upon them and there is nothing in it from which such power can be inferred. Indeed, the only provision of the statute to which our attention has been called, from or by virtue of which it is even claimed that such power is given, is that part of section 17 which provides that “ where the labor service of any department or institution extends to separate localities, the commissions may provide separate registration lists for each district or locality.” But manifestly the “ localities ” or “ districts ” here referred to are some political subdivision of the State, created and existing by legislative act, at the time the registration lists are furnished. For a “ district ” or “ locality ” thus created and not otherwise, the commission may provide separate registration lists, but it cannot of its own volition, independent of the statute, first create a district and then furnish a list. Of course, the commission has only such power as the statute specifically confers upon it, or such as can be reasonably inferred for the purpose of enabling it to faithfully and fairly carry out the work committed to it. It is true that section 10 of the act referred to gives to the commission power “ to prescribe, amend and enforce rules for the classification of the offices, places and employments in the classified service of such city and for appointments and promotions therein, and examinations therefor, and for the registration and selection of laborers for employment therein, not inconsistent with the Constitution and the provisions of this act.” But this provision, as well as that portion of section 17 before quoted, falls far short of conferring power upon the commission to subdivide existing divisions of the State into districts. It is not difficult to see that if the commission had power to
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subdivide a given locality into as many districts as it saw fit, and then by rules of its own adoption make an applicant ineligible to appointment to a position except in the district in which he resided at the time the application was made, how the object sought to be accomplished by the statute would be entirely defeated and the statute, in effect, repealed, and the case before us furnishes a good illustration of it. Here, the relator stood first on the list, and being a veteran, he was entitled to a preference in appointment to the position of bridge tender in the borough of the Bronx. He was not appointed, notwithstanding there were several positions to which he might have been appointed in that borough, because, forsooth, the civil service commission had divided the borough of the Bronx into four districts and had provided that an applicant could not be appointed to a position unless he resided in the district in which the vacancy existed. The positions to be filled were in district Ho. 3 and the relator resided in district Ho. 1; therefore, he was ineligible to appointment and his name was not certified to the bridge commissioner, and when it was found that there was a position in district Ho. 1, to which he might be appointed* the commission was not asked to certify a list of applicants, but the bridge commissioner, acting under rules adopted by the commission, transferred a person theretofore appointed from the borough of Manhattan, which only had one district, to district Ho. 1 in the borough of the Bronx. We think this was a clear evasion of the intent and spirit of the statute, and that the commission, in dividing the borough of the Bronx into four districts, acted without authority and that the appointments made by the bridge commissioner from the lists certified by the commission, in so far as they conflict with the rights of the relator, were void.
The order appealed from, therefore, must be reversed and the application granted, with fifty dollars costs and disbursements.
Patterson, Hatch and Laughlin, JJ., concurred; O’Brien, J., dissented.
Order reversed and application granted, with fifty dollars costs and disbursements.