Rogers v. Common Council of Buffalo

Long prior to the passage of the first so-called Civil Service Reform Act by the federal congress, the condition of that service and the method of appointment thereto had become the subject of most anxious thought on the part of many upright, intelligent and experienced men. The semi-barbarous maxim that “ to the victors belong the spoils,” had been the foundation-stone upon which the system of appointments to the civil service of the nation had been placed for a number of years. The system had grown to such proportions under the necessary enlargement of the service, and it had become in practice so entirely the. creature of political chiefs, that the appointing power was regarded merely as a formal means of registering and legalizing the appointments to office which had already been substantially made by them. Such a system took from the officer, who was to make the appointment, all sense of personal or official responsibility to the people of the country, and substituted in its stead the feeling that he was responsible only to his party to make such appointments to office as the leading men therein should choose to ask for.

It is not to be wondered at that, as the numbers of officers increased, and the numbers of applicants therefor increased in even greater proportion, a general scramble for office became the accompaniment of every change of administration, and to such an extent was it carried that the officers of the government had really not the time to spare for the discharge of the other duties pertaining to their office, because of the constant demand upon their time and attention made by office seekers

The government, it was said, in such case where public offices are thus filled, is looked upon as an enemy’s country, fit to be raided and conquered, and to obtain possession of it is a desirable thing, because all the offices, within the gift of those aa'Iio administer it, are lawful spoil of Avar, and to be parceled out by the chiefs of the victorious party to their faithful followers in recognition of past political services, or in expectation of future support of the same nature. Possession of office under such a system is to be the reAvard of party fidelity and party service.

Contests betAveen political parties under these circumstances, must, in tile absence of some great and exceptional question, degenerate into mere struggles for the possession of the spoils of office and they necessarily bring out every low, selfish and sordid quality of the participants therein, and corruption and •fraud at the elections become the usual accessories thereto. In these contests all principle is lost sight of, and a victory is regarded as a simple means by aaTlícIi to obtain or retain possession of office.

Views of this nature Avere held by numbers of men long before any legislation upon the subject had become possible. The prevailing system finally became, as was alleged, so

Legislation -in the same direction as that contained in the act of congress ivas soon inaugurated in this state. It had been with us precisely as it had been with the federal authorities, and we were in no manner behind them in a practical, prompt and thorough adhesion to the truth of the maxim already quoted. The same force which had operated in the national congress and had caused the federal civil service legislation, appeared in our state capital, and legislation looking substantially to the same end as that of the acts of congress was enacted by our legislature.

The fact must be fully recognized that the duties connected with the vast majority of offices in both the federal and state governments are in no sense political, and that a proper performance of those duties would give no one the least idea whether the incumbent of the office were a member of one political party or another.

It was announced by its adherents and promoters as one of the most important of the principles of this new'system of filling the civil offices that where the political views of the incumbent of public office could not rightfully affect or in any manner determine the means or method of the performance of his official duties, and where he stood in no confidential position towards a superior, that in such case his appointment to, or. his tenure of such office should in no way depend upon or be affected by his “politics.” Instead of the old method of obtaining an appointment, a new One was proclaimed, which ivas to be based solely upon merit, to be proved by an open, public and competitive examination, free to all candidates, and the person who was the best qualified? all proper circumstances

If the system were to be carried out to its fullest extent by appropriate legislation, and if the laws thus enacted were to be enforced bona fide and with cordial heartiness by the men to whose hands it would necessarily be confided, it has been confidently predicted that the inqprovements in bur entire civil service would be such that no unprejudiced citizen would ever give his consent to return to the old order of things.

I have stated in a somewhat summary manner the system which was in active operation concerning the appointment to civil office in the state and nation prior to the enactment of recent legislation upon the subject. That the former system was -bad, very bad indeed, is a fact regarding which it is almost impossible to dispute’ All intelligent, unprejudiced and disinterested opinion runs most strongly in that direction. Legislation of the character of that under - discussion is in this country, and, as yet, somewhat experimental in its nature. It-is experimental because it has been so little tried up to this time, but that the results, if the legislation be fairly carried out, will be immeasurably superior to those obtained under the old system, is a prediction most confidently made by those whose knowledge upon the subject is the greatest. It is somewhat difficult to imagine a worse than the old system of appointments to civil office. That a letter carrier should lose his position because his views upon the question of the tariff

An earnest desire for the general welfare would suggest a fair trial of this new system. A strict and full enforcement of the legislation already enacted in this state on that subject would be the only means of mailing the experiment.

But the defendant Diebold challenges the legislation in -question, and asserts that it is unconstitutional on several alleged grounds, and, if in error as to that, he asserts that there are other reasons why it is inapplicable to his case. If the legislative acts under consideration violate in any particular the Constitution of our state, it is the duty of this court to so decide without regard to consequences. In determining that question, however, we must be guided in the discussion by the rules of construction which are so well known and which should control all courts. The act of the legislature must be plainly at variance with some provision of the Constitution before a court will so declare it. Doubtful questions will be resolved in favor of the validity of the legislative act.

The defendant alleges that the acts are unconstitutional because among other reasons they provide for the appointment by the governor, and for the confirmation by the senate, of three persons as state civil service commissioners, not more than two of whom shall be adherents of the same party. This last provision, preventing the formation of a civil Service board of commissioners from one political party is cited as a violation of article 1, section 1 of our Constitution, which declares that “no member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or judgment of his peers.” The provision is also claimed to be a violation of that part of section 6 of article 1, which declares that no person Shall be “ deprived of life, liberty or property without due process of law.” Provisions of a nature similar to this act are contained, in numerous statutes, which have been enacted since the adoption of our Constitution. Among the latest are those creating the state railroad commission and the

We feel quite clear that such provisions are not in violation of the first section of article 1 of. the Constitution. A citizen is not, within the meaning of this section, in such a case disfranchised nor is he deprived of any right or privilege secured to any other citizen of the state. Ro definition that could be given would probably include all the cases that such section might cover, and it is never well to attempt a general definition in matters of this nature. It is enough to say as each case presents itself that it is or is not included within the section.

The claim of defendant upon the facts of this case is that after two persons have been appointed from one political party, the legislature has no right to direct that in appointing a third, as one of three commissioners, such appointment must be made from some other than the same political party that furnished the other two. It is urged that the legislature has no such right, because the applicant for the third appointment might be a member of the sanie political party as the two already appointed, and that he has a constiutional right to be eligible for such appointment, and any statute which stands in the way of such right (save as a punishment for crime or as a consequence of a conviction thereof) must deprive him of the franchise or privilege of eligibility to office, aqd, therefore, amounts to his proscription to that extent, and is for that reason a violation of the Constitution. We think not.

The appellant bases his argument upon the proposition that every citizen has a right, which is protected by the Constitution, to be regarded as eligible to hold any office, unless the Constitution has itself prescribed certain qualifications for

With the appointment of the third, another condition arises, and that condition prevents the selection being made from the ranks of the same political party from which the other two appointments have been made. Having been a member of the eligible class from which the other two persons were selected, and having thus had his constitutional chance of appointment equally with all others of that class, all being eligible, we cannot think that while two others from his class have been taken, and consequently he has been omitted in the two appointments, his eligibility for holding office extends by virtue of this section of the Constitution to the right of appointment as the third member of said commission in spite of the condition limiting the appointment to two from any one political party. In such case it cannot be truly said that eligibility to hold office depends upon party affiliation. The purpose of the provision is, of course, plain. It seeks to secure the appointment' of persons who are not all of the same political views, and thus to provide for a representation in the body so appointed, of

The case of Barker v. People, ( 3 Cow. 686 ) has been cited by counsel. That case holds that the act to suppress duelling, which provided as a punishment for sending a challenge, that the person so sending should, on conviction, be disqualified from holding any public office, was constitutional. The chancellor, in the course of his opinion, said he thought it entirely clear that the legislature could not establish arbitrary exclusions from office, or any general regulation requiring qualifications which the Constitution had not required. What he meant by such expressions is rendered clear by the examples he gives. Legislation would be an infringement upon the Constitution, he thought, Avhicli should enact that all physicians, or all persons of a particular religious sect, should be ineligible to hold office, or that all persons not possessing a certain amount of property should be excluded, or .that a member of assembly must be a freeholder, or any such regulation.

But, in our judgment, legislation which creates a board of commissioners consisting of íavo or more persons, and Avhich provides that not more than a certain proportion of the Avhole number of commissioners shall be taken from one party, does not amount to an arbitrary exclusion from office, nor to a general regulation requiring qualifications not mentioned in the Constitution. The “qualifications” which were in the mind of the learned chancellor were obviously those which were, as he said, arbitrary, such as to exclude certain persons from eligibility under any circumstances. Thus a regulation excluding all physicians would be arbitrary. But would a regulation which created a board of health and provided that not more than one physician from any particular school, or none but a physician should be appointed thereon, be arbitrary or unconstitutional as an illegal exclusion from office ? I think not.

The purpose of the statute must be looked at, and the practical results flowing from its enforcement.' If it be obvious'

The case is entirely different from that of Attorney-General v. City of Detroit ( 58 Mich. 213 ). The provision in that case was for the appointment of election inspectors, consisting of two persons from each of the two leading political parties, and it was held to be in violation of the Constitution of Michigan. There the law recognized but two political parties, and made it a necessity for the appointments to be made from and confined to members of those parties. An individual not a member of either was not eligible to appointment. In the case before us there is not a citizen in the state otherwise capable, who would not be eligible in the first instance to one of these appointments, and it is not until two have been made from one party that a member of such party is not eligible for appointment to the third place. There is no provision making it necessary to appoint two from the same party, or making it necessary to appoint some one who has been known up to that time as a member of any particular party. The legislation is in the direction of making the body thus appointed more representative, of different and diverse interests, than might otherwise be the case.

The legislative power, generally speaking, is unlimited, save as the Constitution has set bounds to it. It is difficult to see any constitutional objection to the legislation in question, so far as the section under consideration is concerned. Ro man’s right to be regarded as eligible to hold office is,, as we think, infringed upon by legislation which prohibits the taking of more than a certain number of the class to which he belongs, for the purpose of filling a commission composed of more than one individual. This is not the case of an attempt to restrict the right to vote for all offices that are elective by the people, .so that what is termed minority representation might be attained- even in purely elective offices. There is a constitu

In our judgment there is nothing in the first section of article 1 which invalidates this legislation. It is equally apparent that the statute does not violate the provisions of section 6, of the same article, prohibiting any person from being deprived of life, liberty or property without due process of law. He is not deprived of his life or liis property by this statute. Hiving the widest definition to the word “ liberty ” as including the right to be eligible to hold office, the discussion already had shows that it has not been disregarded under this law.

Another objection to the validity of the statute is stated by the appellant. . He says the statute violates article 10, section 2, which provides that “ All city, town and village officers, whose' election or appointment is not provided for by this-Constitution, shall be selected by the electors of such cities, towns or villages, or of such division thereof, or appointed by such authorities thereof as the legislature shall designate for tliat purpose.” His argument runs in this manner: The statute provides that the mayor shall prepare general rules-under which city officers are to be selected, which shall go into-effect when approved by the state civil service commission. The powers of the local authorities to select city officers are,, therefore, as he argues, subordinated to the power of the state authorities. We think the proposition cannot be maintained. The powers of the local authorities to select city officers,

It is not denied that illegal or improper regulations may possibly be prescribed by the mayor and approved by the commission. This fact does not affect the validity of the statute. The rule or regulation which is alleged to be invalid may be brought before the court by some person whose rights have been affected thereby, and judgment may be thus given in regard to such validity.' The defendant, Diebold, does not show that he has lost any right or that any right of his has been injuriously affected by any regulation adopted by the mayor and approved by the state commission, and he cannot, therefore, be heard upon a question which is, as to him, a mere abstraction.

Still another ground of invalidity is alleged by the appellant. He says that the statute conflicts with article 12, which pro

The statute by which an applicant for appointment to a position in a public office is made to show his fitness therefor is claimed to constitute an illegal test within the meaning of this section. It is said that the legislature has no right to enact that a person who shall be appointed to a" public office shall have the qualifications necessary to enable him to discharge the.duties of such office, nor to provide that the fact that he does possess such qualifications shall be ascertained by a fair, open and proper examination. Nothing but the bare oath mentioned in the Constitution can be asked of any applicant for an appointive office is the claim of the appellant. We do not think that the provision above cited was ever intended to have any such broad construction. Looking at it as a matter of common sense, we are quite sure that the framers of our organic law never intended to oppose a constitutional barrier to the right of the people through their legislature to enact laws which should have for their sole object the possession of fit and proper qualifications for the performance of the duties of a public office on the part of him who desired to be appointed to such office. So long as the means adopted to accomplish such end are appropriate therefor, they must be within the legislative power. The id'ea cannot be entertained for one moment that any intelligent people would ever consent to so bind themselves with constitutional restrictions on the power of their own representatives as to prevent the adoption of any means by which to secure, if possible, honest and intelligent service in public office. No law involving any test other than fitness and ability to discharge the duties of the office could be legally enacted under cover of a purpose to ascertain or prescribe such fitness. Statutes looking only to the purpose of ascertaining whether candidates for an appoint

Most, if not all, of the provisions of the Federal and State Constitutions, which are of the nature of a bill of rights, were placed therein with reference to English history and the struggles for liberty which such history recorded. Declarations, oaths and tests as a condition for holding office had been frequently resorted to by the parliament of Great Britain for the purpose of promoting the prosperity of one religion or insuring the downfall of another.

In 1673, during the reign of Charles the Second of England, public opinion therein was highly excited. The king had theretofore chosen to issue a declaration of indulgence, which, in substance, dispensed with the execution of the penal laws against the Roman Catholics. Upon' the re-ássembling of parliament in that year the House of Commons denied the king’s right to dispense with penal statutes in matters ecclesiastical, and unless the king renounced that right the House gave him' to understand that it would grant no supply for the Dutch war. After much debate and negotiation the king yielded, canceled the declaration and promised that it should never be drawn into a precedent. The commons then extorted from the king his assent to what Macaulay has termed “ a celebrated law,” which continued in force down to the reign of George the Fourth. The law was known as the Test Act, and it provided that all persons holding any office, civil or military, should take the oath of supremacy, should subscribe a declaration against transubstantiation, and should publicly receive the sacrament according to the rights of the Ohurcli of England. Some years prior to this the parliament of 1662 had enacted a statute known as the Corporation Act. Under this act all magistrates had to disclaim the obligation of the covenant, and to declare their belief that it was not lawful upon any pretense to resist the king, and their abhorrence of

In this case -we simply hold that the imposing of a test, by means of which to secure the qualifications of a candidate for an appointive office, of a nature to enable him to properly and intelligently perform the duties of such office, violates no provision of our Constitution.

Some other grounds have been urged for a reversal of this judgment, but after a careful examination of them we think they are not tenable for the reasons already sufficiently stated in the opinions of the courts below.

The judgment herein should be affirmed, with costs.

All concur, Ruger, Ch. J., in result.

Judgment affirmed.