People ex rel. McClelland v. Roberts

The relator, in the month of April, 1895, was appointed to the position of clerk to the collector of canal statistics by the superintendent of public works of the state at a salary of $65 per month. When he applied for his monthly compensation, the defendant, as comptroller of the state, refused to audit or pay the same, and the relator, thereupon, applied for. a peremptory writ of mandamus, to be directed to the comptroller, commanding him to draw his warrant for the payment of the claim. The application for the writ was denied, and the order denying the same affirmed (at General Term.

The only question involved in this appeal is whether, upon the undisputed facts disclosed upon the application, the relator was entitled to the writ. It is admitted that the relator was appointed to the position without having passed the civil service examination, and that his name has never been certified to

The legal question thus presented has been so fully and ably discussed in the courts below that we feel relieved from the necessity of much further argument in support of the conclusions there indicated. Indeed, there is very little further to be said upon the important and interesting subject which is involved in the controversy beyond a brief statement of the grounds upon which we think the order below should be sustained.

The statute of this, state, commonly known as the Civil Service Law (Chap. 354, Laws of 1883, as amended by chap. 681, Laws of 1894), not only required that clerks and other subordinates in the civil service of the state should be appointed or selected from lists, constituted as therein provided, after competitive examination, but that it should be unlawful for the comptroller to pay the compensation of any clerk in the civil service who had not been appointed pursuant to the provisions-of the law and whose name had not been certified to him by the civil service commission. It is not necessary to subject these statutes to a very close analysis in. order to determine the general purpose and policy of the legislature with reference to appointments and promotions in the civil service. It is too plain "for argument that these enactments require appointments to be made from the civil service lists, made up in the manner indicated in the statute and in the rides formulated by the commission under the authority of the law ; and, in order to insure obedience to the system on the part of the appointing power, the chief financial officer of the state was prohibited from making payment to any clerk of his salary or compensation who had not been appointed as required by the law. It is quite clear, also, that the civil service statutes constitute a general system of statute law applicable to appointments and promotions in every department of the civil service of the state, with such exceptions only as are specified in the statute itself. It was held in the case of People ex Tel. Killeen v. Angle, ( 109 N. Y. 564 ) that the law could not apply to the

“ Appointments and promotions in the civil service of the

It is, therefore, apparent that a new principle, far reaching in -its scope and effect, has been firmly imbedded in the Constitution. Like many other reforms, this work has not been •accomplished without a long and persistent struggle. The friends and the opponents of the measure have debated its merits and the difficulties in the way of its practical and harmonious operation before the public for years. The considerations which entered largely into this debate are no longer pertinent, since the principle has become an accomplished fact and placed by the people beyond the possibility of any substantial change in a contrary direction. This court, upon more than one occasion, has, with entire unanimity, expressed its approval of the principle, and exercised all of its powers in every proper case in aid of all laws intended to carry out the idea which was always at the foundation of the question.

' There is another question in the case which is pressed with much vigor- by the learned counsel for the relator. He contends, as I understand his position, that the new section of the Constitution referred to contemplated the enactment of appropriate laws to carry it into effect, and that, since the Civil Service Act of 1883 and its amendments did not, and, when passed, could not apply to the department of public works, they cannot now be made to operate upon the appointments of public officers formerly beyond the power of legislative regiilation. In other Avords, that the new section of the Constitution is not self-executing, and, as the Civil Service

We do not think that this contention is at all tenable. The act of 1883 and its amendments constitute a general system in terms applicable to the whole service. It is not limited to any particular department, but is broad enough to embrace all. Statutes of this character, framed in general terms, apply to new cases as they arise from time to time that fall within their general scope and policy. Since the enactment of the civil service laws new offices have been created, to which the power to appoint subordinates attached, but it cannot be doubted that this power, when given, came within the operation of all general regulations on the subject. A general law may, and frequently does, originate in some particular case or class of cases which is in the mind of the legislature at the time, but, so long as it is expressed in general language, the courts cannot, in the absence of express restrictions, limit its application to those cases, but must apply it to all cases that come within its terms and its general purpose and policy. So, a general law, when passed, may be incapable of application to certain cases within its general scope and policy by reason of the existence of other and conflicting enactments of equal or higher authority, but when the latter are repealed or modified, the general law is given full operation. In the present case it will be observed that there is nothing in the Oivil Service Act indicating any intention to exclude any department from its operation. On the contrary, it was manifestly intended to have general operation and not, until the decision of the courts in The People v. Angle, was it understood to be inapplicable to the department of public works. The section of the Constitution with which it was then found to be in conflict, and which had the effect to suspend its operation as to that department, having been since modified in such a manner that both the organic law and the general statute are in harmony, each expressing the' same general policy and direct

Moreover, it is evident from the language of the new provision of the Constitution and from the debates in the convention which followed its introduction into that body, that it was framed and adopted with reference to existing laws, which were intended to give to it immediate practical operation. So that in adopting the new Constitution, the people, in their original capacity, decreed that, thereafter, all the departments of the government should be brought within the operation of existing laws on the subject of appointments. The mandate to the legislature to enact laws to provide for the enforcement of the section does not in any degree conflict with this view. That was a prudent and proper, though, perhaps, an unnecessary precaution. But it affords no ground for the inference that the people intended to ignore the aid and utility of existing laws to give immediate practical effect to the principle, or that they were content to wait for the reform until the legislature should make new regulations on the subject. It was the intention to put all the new provisions of the Constitution into operation through the instrumentality of such'laws as were then in force, so far as practicable, and if, in practice, they were found to be in any respect insufficient for that purpose, they were to be replaced or supplemented by new ones. This view does not depend entirely upon construction, since the instrument itself contains an express provision on that subject. The people declared in section sixteen of article one 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; but all such parts of the common law, and such of the said acts, or parts thereof, as are repugnant to this Constitution, are hereby abrogated.”

If the act of 1883 or any of its amendments needed new life and vigor, in order to bring this case within their opera

Our conclusion is that, since it appears that the position to which the relator was appointed had, prior to that time, been classified by the civil service commission, in pursuance of the statute, as one subject to competitive examination, and as the commission had not certified to the comptroller that he had been lawfully appointed, but, on the contrary, refused the certificate, his application for the writ of mandamus was proparly denied, and that the order appealed from should be affirmed, with costs.

(dissenting.) That chapter 354 of the Laws of 1883, so far as it related to the department of public works, was held by this court to be unconstitutional and void in the Killeen case ( 109 N. Y. 564 ), is manifest from the opinion, and admitted by the respondent. If this statute was unconstitutional, and consequently void when passed, so far as it applied to that department, 1 am unable to agree to the proposition that the constitutional amendment which went into effect January 1, 1895, revived or infused new life into it and rendered it valid. It makes no difference that it' was only void in part, for so far as it was void it had no effect, and could not be rendered valid except by re-enactment.' Judge Cooley, in his work bn Constitutional Limitations, at page 188, says: “When a statute is adjudged to be miconstitutional, it is as if it had never been. Rights cannot be built up under it; contracts which depend upon it for their consideration are void ; it constitutes a protection to no one who has acted under it, and no one can be punished for having refused obedience to it before the decision was made. And what is true of an act void im toto is true also as to any part of an act which is found to be unconstitutional, and which, consequently, is to be regarded as having never, at any time, been possessed of

If the legislature never intended to pass such a statute, its intent must govern, and the statute of 1883 should not be regarded as applicable to the department of public works. If it did intend to include that department, then it violated the Constitution and was so far null and void. Therefore, whatever view may be taken of the question, it seems to me that it cannot properly be held that the statute is applicable to tlie department of public works.

I think the judgment of the General and Special Terms should be reversed.

All concur, with O’Brien, J., for affirmance, except Martin, J., who reads for reversal; Vann, J., not voting.

Order affirmed.