People ex rel. Killeen v. Angle

- This appeal brings before us for review an order of the General Term of the Supreme Court denying an application for a mandamus, to compel the Yew York Civil Service Commission to admit the relator to examination as to his fitness to perform the duties of the office of clerk to the collector of canal statistics. It is claimed that the relator became entitled to the writ by virtue of the provisions of chapter 354 of the Laws of 1883, creating a civil service commission, and the rules issued in pursuance of authority thereby conferred. It must be conceded that this claim is well founded, provided the statute and rules are to be enforced according to • their plain meaning and intent. It is, however, contended by the respondent that,' so far as such statute and rules intrench upon the power and authority to manage and control the business of the canal department and appoint, remove and suspend subordinates at pleasure, conferred upon the superintendent of public works by the Constitution, they are unconstitutional and void, and, therefore, neither impose the duty or confer authority upon the commission to make the examination applied for. This contention brings before the court one of the most important and delicate duties it is called upon to perform, viz., that of pronouncing upon the constitutionality of an act of the legislature, and, within settled rules, it requires a case to be made showing clearly that the statute, when fairly and reasonably construed, is brought into conflict with some provision of the Constitution, before the court can be justified in pronouncing it an unauthorized expression of legislative will. If the act and the Constitution can be so construed as to enable both to stand, and each can be given a legitimate office to perform, it is the duty of the court to give them such construction;

There is but little dispute between the parties as to the rules governing the interpretation of statutes, and that subject may be disposed of by reference to the rule stated in the head-note of the People ex rel. Jackson v. Potter ( 47 N. Y. 375 ), which reads as follows: “The established canons of construction applicable to statutes, to wit., that the intent of the law-maker is to be sought for, and, when discovered, is to prevail over the literal meaning of the words of any part of the law; and that this intent is to be discovered, not alone by considering the words of any part, but by ascertaining the general purposes of the whole, and by considering the evil which existed calling for the new enactment, and the remedy which was sought to be applied, apply as well to the construction of a Constitution as to that of a statute law.” It will be convenient then, at the outset, to refer briefly to the history of the constitutional amendment of 1876, and the causes which led to its adoption, and thus obtain a view of the object which its framers designed to accomplish thereby. Previous to its adoption, for many years the management and control of the canals of the state, had been mainly intrusted to the supervision of three canal commissioners, each one having special charge of a separate division of the canal, and to a board of canal commissioners and the canal board, each having functions to perform with sometimes joint, and sometimes divided responsibility therefor. Under such an administration of canal affairs great complaints had been made of the waste, extravagance and inefficiency of the system, and the facilities for fraudulent practices afforded to public peculators, and the difficulty of determining, in the multiplicity of the officers having authority over the subject, who was justly

It is apparent from these provisions that it was intended thereby to create a new scheme for the management of the canal affairs of the state; the principal feature of which was to give large authority to the superintendent in their management and control, and to hold him personally accountable for any failure to exercise such powers in the interest and for the benefit and advantage of the People. As an incident of this scheme the superintendent was given power, subject only

A very brief summary of the provisions of chapter 354 of the Laws of 1883 and the rules adopted thereunder, so far as-they are material to this discussion, will show to what extent, if any, the choice of the superintendent in the appointment of his subordinates has been affected by the civil service legislation. The act provides for the appointment by the governor, with the advice and consent of the senate, of three persons to constitute a civil service commission.

It was conceded that the office sought by the relator is-classified in such rules, under Schedule B, as an office subject to the provisions of the act. By rule 17 it was further provided “ whenever any officer having the power of appointment-to or employment in any grade or subdivision in this schedule shall so request, the commission shall certify to him the names of three eligible persons who are graded highest on the proper register, indicating such of them, if any, as have been honorably discharged from the military or naval service of the United States in the late war. From the three persons whose names are so certified the officer shall make a selection to fill' the vacant place, subject, however, to the provisions of rule 44.” This rule requires such appointment to be filled by a a person honorably discharged from the army or navy in the late war, though graded lower than the others so examined, provided there be such persons on the list furnished. It thus appears that the superintendent is absolutely prohibited from making any appointment to a place, authorized by the Constitution to be filled by him, unless such person has passed the examination required by the act. He is further restricted to a selection from among the names of three persons certified

It cannot be reasonably contended that the superintendent, has, under this system, any such freedom of action and choice as is implied in the power to appoint his subordinates and perform the duties charged upon him by the Constitution. Such power embraces in its exercise not only perfect liberty of choice as to the person to be appointed, but the duty of' personally investigating the character and qualifications of the proposed appointee, and determining his fitness to discharge the services required of him. This was a duty which the Constitution required him personally to perform, and which he could not lawfully delegate to any other. (Menges v. City of Albany, supra.) Any legislation which relieves him from the obligation to exercise his judgment and skill in the service of the People deprives them of the contemplated benefits arising therefrom, and effects a radical change in the scheme inaugurated by the constitutional provisions. The great impropriety of such a construction is made apparent by the consequences which would follow the taking away the selection and appointment of his subordinates, and at the same time holding him criminally and pecuniarily responsible for the effects of their misconduct and inefficiency in the performance of their duties.

How far the legislature may circumscribe by general laws the eligibility of the citizen to fill offices in the civil service of the state, by declaring disqualifications therefor, arising out-of special circumstances or inconsistent employments, it is unnecessary and would now be unprofitable to consider; but. we think it entirely clear that it has no power to impose restrictions directly upon one who possesses constitutional authority, which practically destroys or impairs the exercise-

It is further contended by the relator that section 6 of .article 5 of the Constitution gives some support to the legislation under consideration. That section provides, in general terms, that “ the powers and duties of the several boards and ■ of the several officers in this article mentioned, shall be such as now are or may be hereafter prescribed by law.”. This .section was contained in original article 5 of the Constitution of 1846, and applied to a large number of state officers and boards, besides those of canal commissioners, which were .abrogated by the amendment of 1876. The section has, therefore, a wide operation even though it be held not to apply to the officers created by the amendment.

Under well-settled rules of construction we think that there is the most conclusive reason to be drawn, from the language of the amendment itself, for holding that it was not intended to be applied to the superintendent of public works. While in the act of framing this amendment, the question was presented to its authors how far the powers therein attempted to be conferred should be limited by the supervision of the legislature; and, with reference to that subject, they twice expressed themselves in clear and explicit terms. Thus the superintendent was authorized to prescribe the duties ■of the. assistant superintendents, subject to modification by the legislature, and also to make rules and regulations for the use , and management of the canals, subject to the same regulations. These provisions were entirely unnecessary if it were ..supposed that the offices provided for by the amendment were subject to the operation of section 6 of article 5.

Under established rules of construction these express provisions for the supervision by the legislature over the cases referred to, afford the strongest implication that, in other .respects, it was not intended to leave the powers conferred by

We, however, yield our fullest sanction to the doctrine that an amended Constitution “ must be read as a whole and as if •every part had been adopted at the same time and as one law, and effect must be given to every part of it, each clause explained and qualified by every other part.” (Gilbert El. R. R. Co. v. Anderson, 3 Abb. N. C. 452 .) But when this is done the question remains whether the framers of the amendment intended that a general provision contained in the original instrument, should be applicable to the subject of such amendment. It would be quite absurd to suppose that, while framing an elaborate scheme of public policy to be incorporated in the fundamental law of the state,, they intended to subject it to the operation of general provisions of the same instrument which might, when applied thereto, annul the express grants of power therein contained, and authorize each successive legislature to overthrow and destroy the whole object and effect of the amendment adopted. To hold that this was the intention of the authors of the amendment would require us not only to stultify them, but would stamp their work as an idle ceremony of no practical importance. It is a primary rule of construction that statutes must be so interpreted as to give effect to every part thereof and leave each part some office to perform; and any construction which deprives any part of a statute of effect and meaning, when it is susceptible of another interpretation, is wholly without support from any authority

It is also a familiar rule of construction that if there be any repugnancy between an amended statute or law and the original, which cannot be so construed as to leave them both to stand and each have a legitimate office to perform, the original enactment must be deemed to have been repealed by the later expression of the legislative will. (Gilbert Elevated R. R. Co. v. Anderson, 3 Abb. N. C. 434 , 453; Harrington v. Trustees of Rochester, 10 Wend. 547 .) These rules apply as well to the interpretation of Constitutions as of statutes. In

We are, therefore, of the opinion that section 6 of article 5 does not apply to the superintendent of public works, so far as the Constitution confers power upon him to . perform the duties of that office, and that his subordinates do not come under the operation of the act creating the civil service commission.

It follows that the order of the court below should be affirmed.

Ail concur.

Order affirmed.