Chittenden v. Wurster

This action was brought by taxpayers of the city of Brooklyn against the fiscal officers of the city and eleven individuals who were appointees in the various departments of the city government to enjoin and restrain the fiscal officers of the city from paying to any of the appointees the salary earned by them respectively.

The eleven employees were appointed to the positions held by them since the first day of January, 1895, without competitive examination ; and the claim is that such examination in each case was practicable, and that every appointment without such examination was in violation of the provisions of the Constitution which went into force on that day.

Civil service first had its introduction in this state in the year 1883 by the passage by the legislature of chapter 354. That act has been several times amended; it related to appointments to be made in the civil service in the state and cities; and at the time of the adoption of the new Oonstitu- , tion, in substance provided that the governor, with the advice and consent of the senate, should appoint three persons as civil service commissioners of the state; that they should aid him in preparing suitable rules for carrying the provisions of the act into effect; and when the rules should be promulgated, it should be the duty of all officers of the state, in the departments and offices to which such rules relate, to aid in all proper ways in carrying the rules into effect. The rules were required to provide and declare,- as nearly as the conditions of good administration will warrant: “ 1. For open competitive examinations for testing the fitness of applicants for the public

It was made the duty of the governor, within four months, to cause to be arranged in classes the several clerks and persons employed or being in the public service, for the purposes of an examination, and he was required to include in one or more of such classes, so far as practicable-, all subordinate places, clerks and officers in the public • service of the state. Thereafter no officer or clerk was permitted to be appointed, admitted or promoted in either of the classes arranged by the governor until he had passed an examination or had shown himself to be exempted from such examination. It was made unlawful for the comptroller to draw his warrant for the payment of any salary or compensation to any officer, clerk or other person in the public service of the state in either of the classes arranged by the governor, who was not certified as having been appointed in pursuance of the law and of the rules and regulations made thereunder. In each of the cities of the state in which rules and regulations had been adopted under the provisions of the act, every officer thereof whose duty it was to sign or countersign warrants, was prohibited from signing or issuing any warrant on the treasurer, or other disbursing officer of such city, for the payment of the salary of any person in its service whose appointment had not been made in pursuance of the provisions of the act and of the rules in force thereunder, and any sums paid contrary to the provisions of the act, it was provided, might be recovered from any officer signing or countersigning warrants for the payment

It was further provided that (§ 8): “ The mayor of each city in this State is authorized, and is hereby directed, to prescribe such regulations for the admission of persons into the civil service of such city as may best promote the efficiency thereof and ascertain the fitness of candidates-in respect to character, knowledge and ability for the branch of the service into which they seek to enter, and for this purpose he shall, from time to time, employ suitable persons to conduct such inquiries and make examinations, and shall prescribe their duties and establish regulations for the conduct of persons who may receive appointments in the said service. And the regulations so to be prescribed shall, among other things, provide and declare as in the second subdivision of the second section of this act is provided and declared in reference to regulations for admission to the civil service of the state. Within two months after the passage of this act it shall be the duty of each of said mayors, in and by such regulations, to cause to be arranged in classes the several clerks and persons employed or being in the public service of the city of which he is mayor, and he shall include in one or more of such classes, so far as practicable for the purposes of the examination herein provided for, all subordinate clerks and officers in the public service of the said city to whom his ¡lower under this act extends. After the termination of three months from the passage of this act no officer or clerk shall be appointed, and no person shall be admitted to or be promoted in either of the said classes now existing or that may be arranged hereunder pursuant to said rules, until he has passed an examination, or is shown to be exempted from such examination, in conformity with such regulations. Such regulations hereafter prescribed and established, and any subsequent modification thereof, shall take effect upon the approval of the Hew York Civil Service Commission. * * ' * It shall be the duty of all those in the official service of any such city to conform to and comply with any regulations made pur

Under .the provisions of this statute it was made the duty of the mayor of the city of Brooklyn to arrange in classes all clerks and persons employed in the public service of the city, and to include in one or more of such classes, so far as practicable for the purposes of a competitive examination, all the subordinate clerks and officers in the public service of the city.

In compliance with these provisions, the Honorable Seth Low, then mayor of the city, did prescribe rules and regulations for the admission of persons into the public service of the city, and did arrange a class known as “ Schedule A,” in which were enumerated the positions in which he did not deem a competitive examination practicable; and another class known as “ Schedule B,” containing positions in which he required a competitive examination as a condition precedent to an appointment. Among others he classified as positions in “ Schedule A ” that of clerk to the committees of the board of aldermen, warrant clerk in the department of finance, dock-master in the department of finance, chief clerk in the department of audit and law clerk in the department of law. These rules and regulations went into operation under his administration and ever since have continued to be in force, except as to the following modifications made by his successors : Mayor Charles A. Schieren classified the clerk in the department of health, the surveyor in the department of assessments, the secretary in the department of buildings, and the deputy license clerk in the city clerk’s office, in “ Schedule A; ” and Mayor F. W. Wurster, one of the defendants herein, classified the license fee collector in the department of fire in “ Schedule A.” The head of each of these departments was required to and has given the usual official bond. The eleven appointees,

The Constitution, article 5, section 9, provides that “ appointments and promotions in the civil service of the state, and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive; provided, however, that honorably discharged soldiers and sailors from the army and navy of the United States in the late civil war, who are citizens and residents of this state, shall be entitled to preference in appointment and promotion, without regard to their standing on any list from which such appointment or promotion may be made. Laws shall be made to provide for the enforcement of this section.”

The concluding clause, to the effect that laws shall be made to provide for the enforcement of this section, would seem to indicate that it was within the contemplation of the constitutional convention that some legislation would be necessary. The Civil Service Statutes were limited to the state and the cities. The Constitution extends the civil service to all the civil divisions of the state, including villages. Counties and towns are the civil divisions of the state, and are, therefore, with villages, now included in the civil service. Appointments and promotions “ shall be made according to merit and fitness.” This provision is doubtless mandatory. It asserts a duty which has always existed, and devolves upon every appointing officer of ascertaining the merit and fitness of the persons appointed by him to official positions. Then follows the provision : “ To be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive.” In order to have a satisfactory and effectual competitive examination there must be some person to examine and decide, some place fixed, and

In the Sweeley Case ( 12 Misc. Rep. 174 ), Judge Herrick, in discussing this provision of the Constitution, says that it does not prescribe the rules by which it may be enforced, and that it needs legislation to give it life. This case was affirmed by this court without opinion ( 146 N. Y. 401 ), and his opinion was especially commended by Judge Bartlett in the Keymer Case ( 148 N. Y. 219 , 224). In the McClelland Case ( 91 Hun, 101 ) the same judge discussed this question more fully, and held that the execution of this provision was dependent upon the statute. That case was also affirmed by this court ( 148 N. Y. 360 ), and the opinion below was commended by O’Brien, J., who said, with reference to this clause of the Constitution, that it is subject to legislative regulation as to the mode and manner of appointment, and is brought within the operation of general laws on that subject. It is true that in another place he stated that, “If the legislature should repeal all the statutes and regulations on the subject of appointments in the civil service the mandate of the Constitution ■would still remain, and would so far execute itself as to require the courts, in a p>roper case, to pronounce appointments made without compliance with its requirements illegal.” But, in making this statement, he had reference to the mandatory-provision already alluded to, as appears from the clause immediately preceding, and not to the necessary machinery for the conducting of a competitive examination. This is ajiparent from another expression appearing in his opinion in which he refers to the provision and states that “it was framed and adopted with reference to existing laws which were intended to give it immediate practical operation.” This view is in harmony with that now entertained by us. The provision is

There were, however, in existence at the time of the adoption of the Constitution the statutes to which we have alluded, which do provide the necessary machinery for carrying into effect the provisions of the Constitution in the state and cities; so that, upon its adoption, in the language of O’Brien, J., in the McClelland case, “it had immediate practical operation.”

Article 1, section 16, of the Constitution provides 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.”

Are the provisions of the Civil Service Act repugnant to the provisions of the Constitution? In the Keymer Case (supra) we held that the provision of chapter 344 of the Laws

We are thus brought to a consideration of the question as to whether the classification made by the mayors of Brooklyn is legal. As we have seen, with the exceptions noted, it has existed for nearly thirteen years without question. This fact, however, may not excuse us from now considering the question, in view of the fact that changes have been made which would render the doctrine of practical construction inapplicable. Iu determining this question, we must have reference to the mandate of the Constitution and of the statute requiring competitive examination so far as practicable.

It was evidently contemplated that there were positions in which a competitive examination was not practicable. (Matter of Keymer, 148 N. Y. 219 .) The counsel for the respondent conceded this, and in his oral argument mentioned a position in the health department, and in his brief, “ a private secretary, or an officer or attendant especially assigned to an executive or judge.” The reasons for exempting the private secretary of the governor, or the personal attendant upon a judge, exist with equal force with reference to many other positions, and it would be manifestly unjust to limit the exceptions to the positions named. In order to determine whether the examination of a candidate for an office is practicable, we must first ascertain the nature and character of the duties of his position. Having ascertained the facts, the question of exemption then,

What places should then be included in the confidential list ? This question may not be easy of solution. Facts may arise with reference to positions which are now unknown, or not presented by the record before us, which we cannot foresee or now consider. We can, therefore, only speak generally upon the subject, leaving individual cases for consideration when they arise. We think the Civil Service Laws should have a reasonable interpretation and should be made as practical as possible, and that we should avoid a construction

We are urged to limit the positions in the confidential class to those which are strictly secret. Most of the public offices are conducted openly, and every citizen has the right to know what transpires. The strictly secret positions authorized are comparatively few, and are of far less importance than those where the appointee is intrusted with the drawing and signing of warrants for the payment of millions of dollars of the public money. Such a construction would be too narrow and burdensome, and we think not justified. As to the other positions in which competitive examination is not practicable,

The provision with reference to those seeking to enter the employment of the educational departments of the city relates to teachers in schools. There are other statutes which require them to pass an examination and obtain a certificate before they can be employed. This examination was deemed equivalent to that required under the Givil Service Acts, and they consequently were exempted. The positions embraced in the above provision of the statute, together with those included in the confidential list, constitute the exempt class, commonly known in the classification as “ Schedule A.”

In view of the disposition to be made of this case, we are not now called upon to determine the respective claims of the eleven appointees. We have reached the conclusion that this action ought not to be maintained. The heads of the departments making the appointments had. nothing- to do with the classification; that duty devolved upon the mayor. Under the classification made each of the positions in controversy was placed in “ Schedule A.” The positions in “ Schedule A” required no examination, and consequently no lists were prepared by the examiners from which such positions could be filled. It is not pretended that the mayor was corrupt, dishonest, or that he was actuated by improper motives in making the classification. The duty devolved upon him under the statute; and, until the contrary appears, we must assume that he acted conscientiously and upon his best judgment. Such a classification is not void ; it may be voidable, for his action is subject to review; but, until it is judicially determined that his classification was erroneous, it is a protection to the subordinate heads of departments and employees acting thereunder. The appointments were made in accordance with the statute and the classification as it then existed. They could then be made in no other way; and, until the proper classification had been made, the appointments must be deemed valid. (Curtin v. Bar

The people are not, however, without a remedy. There is one which is very simple and effective; if the mayor refuses to do his duty, or if he does it improperly, he may be compelled by direct proceeding, as by mandamus, or perhaps in some cases by certiorari, instituted by any resident citizen, to do it in accordance with the requirements of the Constitution

We have to say in conclusion that the duty rests upon the legislature and the courts to enforce the civil service provisions of the Constitution in their letter and spirit.

We doubt not that at an early day the legislature will supplement the existing civil service laws by such additional enactments as will cover all the civil divisions of the state, including villages, and furnish a complete system for carrying out the mandates of the Constitution.

We have endeavored to solve the complicated problems presented by this appeal so that the appointing officer, the fiscal agent and the appointees shall be protected until final judgment can be had as to the correctness of classification, and at the same time we have pointed out to the citizen the remedies by which he can secure the enforcement of civil service provisions contained in the Constitution and the statutes.

The judgment should be reversed and the complaint dismissed.

(dissenting). This action was brought by certain taxpayers of the city of Brooklyn against the mayor and the other fiscal officers of the city and eleven individuals, who had been appointed to various positions in the

Upon-the trial of the action the plaintiffs adduced evidence, by the examination of witnesses and in the production of a large number of documents, consisting of examination papers, reports, various civil service regulations, etc., to show that competitive examinations for all the appointments mentioned in the complaint were practicable. Uo witnesses .were called in behalf of the defendants, and the only evidence adduced by them consisted in showing, by stipulation and by certain letters addressed by Mayors Schieren and Wurster to the civil service commissioners between March, 1894, and February, 1896, that the positions of the defendant appointees, in the several departments, had been assigned to Schedule “ A,” which is the non-competitive schedule under the civil service regulations, before the appointments were made.

I think that the right to maintain this action turns, in the first place, upon the existence of any authority in the law for it and, in the second place, upon the effect which the insertion into the present Constitution, of the civil service section (Art. V, sec. 9), had upon existing statutes and'political conditions. In view of the objection that an action in this form will not lie, its prior discussion seems the more appropriate. Authority for it must be found in the provisions of the Code of Civil Procedure and in chapter 673 of the Laws of 1887. Section 1925 of the Code provides that “ an action to obtain a judgment preventing waste of, or injury to, the estate, funds, or other property of a county, town, city or incorporated village of the state, may be maintained against any officer thereof, * * * by a citizen, resident therein, * * * who is assessed for and is liable to pay, * * * a tax,” etc. This section was a revision of chapter 161 of the Laws of 1872, which was the first enactment upon the subject. The act of 1887 provided for an action against “ all officers, agents, commissioners and other persons acting, * * * for and on behalf of any * * * municipal corporation in this state, * * * to prevent any illegal official act on the part of any such officers, * * * or to prevent waste or injury * * * to any property, funds, or estate of such * - * municipal corporation.” Upon a consideration of the broad application, which has been given to these statutory provisions by the decisions of this court, I do not think that the inquiry into the right of these plaintiffs to maintain this action can be said to be really open to us in the present case. The Taxpayers’ Act was passed by the legislature with the intent thereby to provide a sufficient and ready remedy against

It seems to me that these cases have fully committed this court to the doctrine that the statutes comprehend all cases, where the wrong to be remedied consists either in a waste of, or an injury to, the municipal estate, through corrupt official action, or through action in abuse of the powers conferred on municipal bodies, or in the commission of illegal official acts. Ror should the scope of the remedy given by the legislature be too much restricted by construction. As it was said in Ayers v. Lawrence ( 59 N. Y. 192 ), which was the first case in this court of an action brought under the Taxpayers’ Act, “ in the construction of laws of the character of that under consideration, too much stress should not be laid on the strict and precise signification of words, but they should be construed liberally, with a view to the beneficial end proposed, to wit, the suppression of the mischief and the advancement of the remedy.” It was there observed of the law, that its

We have, then, to consider what was the effect of the insertion into article Y of the Constitution, as amended in 1894, of section 9, which reads as follows: “ Appointments and promotions in the civil service of the state, and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive; provided, however, that honorably discharged soldiers and sailors from the army and navy of the United States in the late civil war, who are citizens and residents of this state, shall be entitled to preference in appointment and promotion, without regard to their standing on any list from which such appointment or promotion may be made. Laws shall be made to provide for the enforcement of this section.”

I believe this state to be the only one where such a provision affecting its civil service has, thus far, been made a part of its fundamental law, and we are bound to assume, by reason of its presence there, and by reason of all the circumstances attending its insertion, that it was a most deliberate expression of the views of the representatives of the people. In the consideration of the object and purport of a constitutional provision, it is useful to regard the circumstances attending, and leading to, its insertion. The reform of the civil service had long been the subject of discussion and of legislation, here and elsewhere. Examinations, whereby appoint-

That it should be given full effect, no one will deny and one of the questions, which confronts us, is whether, as the appellants contend, it can only become operative through legislative provisions. They argue that the provisions of this section simply indicate the principles, in accordance with which appointments must be made, and that, being affirmative in character, they are not self-executing, until a law is passed providing for some method of determination and classification in accordance with those principles. The argument, while having some force, in so far as the civil divisions of the state, other than cities, are concerned, where the legislature has failed to make a classification, or to provide some adequate machinery, through regulations or boards of examiners, fails to appreciate the positive and imperious nature of this constitutional mandate. The argument would make of the provision a direction, without imperative force. This is not the presumption we may indulge in, when we read the language and consider the very apparent design to protect the people against the evil effects of unfitness in those filling subordinate positions in the public service. From the time that the revised

The provision in the section, that “laws shall be made to provide for the enforcement of this section,” re-enforces its positive command. So far as laws do not already exist, which permit the mandate to be effectual, there shall be further legislation in the line of regulations. I do not see how the Sturgis Case ( 152 N. Y. 11 ), which arose under the lottery clause of the Constitution (Art. 1, sec. 9), and to which counsel refers, commits us to any different view of the language of this section. It was there held that the lottery section was not intended to be self-executing; because of its language, that “the legislature shall pass appropriate laws to prevent offenses against any of the provisions of this section.” This was an express delegation of authority to the legislature to enact laws, by which the section should be given force. The

I have suggested that the section was framed as a deliberate expression of the views of the representatives of the people in the constitutional convention, held in the year 1894. Civil service reform had then passed the tentative stage. In 1883 an act had been passed relating to appointments in the civil service of the state, which provided for the making of rules and regulations for the examination of persons seeking admission into the civil service of the state, or of the cities of the state. (Chap. 354, Laws of 1883.) The original statute had been made the subject of many amendments, down to the legislative session of 1894. Regulations had been promulgated, by the governor and by mayors of cities, civil service commissions had been appointed and, in the decade that had elapsed since the passage of the first law, the public attention had been directed to the development and results of this plan for elevating and improving the civil service. Civil service examinations had not gone unchallenged as to their efficacy and the antagonism had been pronounced. The proposed amendment of the Constitution was introduced as early as in the month of June, in the session of the constitutional convention of 1894. It wras taken up in the month of September and made the subject of prolonged debate. I think we may, safely and fairly, presume that the members of the convention had actually, and well, in mind, not only the public proceedings had in legislative and administrative bodies upon the subject, but,, as well, what the operation of the law had been reduced to in practice.

The civil service article for cities provided that “ the mayor of each city in this state is * * * hereby directed to prescribe such regulations for the admission of persons into the civil service of said city, as may best promote the efficiency thereof, and ascertain the fitness of candidates in respect to character, knowledge and ability for the branch of the service into which they seek to enter, and for this purpose, he shall, from time to time, employ suitable persons to conduct such inquiries and make examinations,” etc. Such regulations, by the article, were to provide and declare, as in the case of admission to the civil service of the state, “ as nearly as the conditions of good administration will warrant,” for open and competitive examinations for testing the fitness of applicants; which should be practical in their character and fairly test the relative capacity and fitness of the persons examined, and that “ all of the offices, places and employments * * * shall be filled by selections from among those graded highest as the result of such competitive examination.” ' The mayor was required to arrange in classes the clerks and persons employed in the public service of the city, and “ he shall include in one or more of such classes, so far as practicable for the purposes of examination herein provided for, all subordinate clerks and officers in the public service of the said city,” etc. The further provisions of the article relate to the exemption from the regulations, prescribed pursuant to the section, of elective officers and the subordinates, for whose errors they were financially responsible; of heads of departments; persons in the educational departments, and every subordinate officer, who, by virtue of his office, had personal custody of public funds, for the safekeeping of which the head of the office was under official

It is the claim of the appellants, in effect, that the revised Constitution has not affected the provisions of the civil service statutes, nor has substantially changed the conditions, as to the classification of positions, the determination of the classes and the method of appointment, and that they remain, as before,, questions for the sole determination of the administrative officers of the state and city governments. There can be no

~YVe have recently had occasion to consider the effect of this constitutional provision, in depriving the legislature of any purely arbitrary power of determination as to what places it was practicable to fill by appointment without competition. The Keymer Case, ( 148 N. Y. 219 ), arose under chapter 344 of the Laws of 1895, which amended the Civil Service Act so as to create an exemption in favor of the veterans therein described from competitive examinations. The language used was that “ competitive examinations shall not be deemed practicable or necessary ” in such a case. We held the act to be unconstitutional; because it referred only to veterans of the civil Avar and created a favored class, and because it arbitrarily declared as to them competitive examinations should not be deemed practicable, in cases where the compensation does not.

The use of the word “ practicable ” in the section has been seized upon as the basis for an argument, by implication, that it was recognized that it might not always be possible to test merits and fitness, in every instance, by an examination, competitive or non-competitive, and, as existing laws were left in force, so far as not repugnant to the Constitution, that all questions of classification, and of matters of appointment thereunder, are left to the determination of the mayors, as provided for by the acts of the legislative body, in whom such a power of legislation resided. The significance of the terminology of this section is not open to so broad an implication. All exceptions to the rule of examinations wrere abrogated by the section, which formerly existed by statute, or which became engrafted upon the law by regulations. There were to be no more exemptions from examinations in any case; unless it was one, where, from its peculiar nature, it could be seen that an examination would not be practicable for the purpose. It is not difficult to understand what was intended; however difficult it might be to furnish a definition which would include the cases where examinations would not be practicable. Such cases might be found in the selection of a private secretary, where the statute gave the power to appoint such; or in the selection of an attendant or clerk by a judicial, or executive, officer, where there was a similar power to make the appointment. In such and like cases, the requirements for the place might consist-, rather in the capacity of the person to inspire and to deserve personal confidence and a

There should be no ground for the fear, suggested by the appellants’ counsel, of an undue interference by the courts with the exercise of discretionary powers vested by law in the administrative departments of government. The exercise in good faith of administrative judgment, resting upon facts and circumstances, which leave the question of the practicability of an appointment upon the examination test prescribed, a fairly debatable one, should not and will not be disturbed, hfor is

The question of the extent to which the constitutional provision is self-executing is to be answered from a reasonable survey of the whole section. It is sweeping in its provision as to all existing exceptions or exemptions. Veterans were to pass examinations, although accorded a preference in appointment and promotion upon the lists, and appointments in the department of public works of the state, theretofore without the operation of the Civil Service Law, were brought within its provisions. As it was held in the McClelland Case ( 148 N. Y. 360 ), the result of requiring the general application of the Civil Service Act has been “ effectually accomplished by the adoption of the new provision in the fundamental law.” As previously pointed out, the Constitution provided for the continuance in force of all legislative acts, not repugnant to it, and when the revisers inserted in the section a provision that laws shall be made to provide for its enforcement, they understood that, while there were laws in existence, which applied to the civil service in the state and in the cities, and

That the section is self-executing, I do not think we can deny and, indeed, we so held in the McClelland case ; but in the reasonable sense. Legislation was only needed in order to guide appointing officers and to furnish them with proper authority and rules to perform their duty under the law. I think it does not impair the operative force of the constitutional prohibition, that it may be, in part, ineffectual, until the revision of present laws, or the enactment of new ones, shall

Nor does this view work so harshly upon executive officers, or upon their appointees, as to avoid the appointments ah initio and to subject the former to some personal liability, or the latter to the loss of their compensation for services actually performed. In the absence of bad faith, fraud, or collusion, appointments made under existing civil service regulations should not subject the appointing officers personally to liability for the salaries paid, if it be determined that the appointments have been illegally made. The discretion exercised by the mayors in assigning positions to non-competitive schedules may have been mistakenly and erroneously exercised; but, until it lias been declared judicially that those positions were, within the purview of the Constitution, such as it was practicable to fill by appointment from lists of persons who had successfully passed the required examinations, the appointments stand and the incumbents of the offices are entitled to be paid their salaries or compensation. The constitutional provision must be humanly viewed. It recognizes that examinations may not always be practicable to test the qualifications of applicants for public office, and a classification, containing a non-competitive schedule, or a determination upon the method of a non-competitive appointment, made in good faith, will not be presumed to have been in disregard of the constitutional requirements. Remedies by action are afforded, to test the legality of the method of appointments to office and to secure a judicial revision of the subject of complaint. I am of the opinion, therefore, that the defendant appointees are entitled to the salaries or compensation earned by them, until by a final and conclusive judgment the legality of the mayor’s classification has been determined upon.

Finally, upon the question of the positions held by the defendant appointees, I am unable to find any ground for holding that competitive examinations were not perfectly practicable to test their merits and fitness. Their positions

hTo other questions demand a continuance of this discussion, the length of which is only justified by the importance of the questions, which have been argued with exceptional thoroughness and ability by both counsel. Generally stated, the conclusions I have reached, are that section 9 of article Y of the new Constitution operated to modify the civil service laws and regulations, which were existing on January 1, 1895, and to establish as the sole rule for appointments to subordinate positions in the civil service an ascertained merit and fitness in the applicant, upon competitive examination; that its •effect was to abrogate all exemptions and exceptions to the rule, unless in some case where such examinations were impracticable as a method of appointment; that the provision executed itself in the public service of the State and of the cities, but needed legislation in other civil subdivisions to govern the conduct of appointing officials and to regulate compliance by them; that, in a case arising upon the legality of a classification, or assignment, of a position in a non-competitive schedule, the question becomes a judicial one and is for the revision of the courts, upon the facts as found and in the light of a common experience and a common knowledge; that until a final and conclusive judgment is had, which determines the illegality of appointments, the appointees in •office are entitled to be paid their salaries or compensation; and, finally, that competitive examinations were practicable, in the constitutional purview, for all the positions filled by the defendants.

(dissenting). I concur in many of the general conclusions of Judge Gbay with respect to the questions involved in this case. But since I have arrived at the conclusion that the judgment appealed from is right in its entire scope and meaning, I prefer to state, in as brief language as possible, the grounds upon which it is based. Many of the questions discussed at the argument and upon the briefs of counsel have long been settled, and have been so clearly removed from the domain of doubt or discussion that a bare statement of the principle is sufficient.

The right of a taxpayer to maintain such an action is no longer an open question. The statute gives the right in express words, and this court, in at least two cases, and upon facts substantially identical with those appearing in this record, has sustained the right. (Rogers v. City of Buffalo, 123 N. Y. 173 ; Peck v. Belknap, 130 N. Y. 394 .)

We have recently sustained the right of a taxpayer to maintain an action to restrain the common council cf a city from proceeding to a¡)point police commissioners under a law claimed to be in violation of the Constitution. (Rathbone v. Wirth, 150 N. Y. 459 .) This is an action to restrain the payment of salaries to persons appointed in the civil service of the city, as it is alleged, in violation of the same instrument. That was an action to restrain the municipal authorities from making the appointments for similar reasons. No substantial distinction can be made between the two cases, and if it was ever desirable to limit the right to bring actions of this character by refining away the statute, it is too late now. There is nothing in this case to warrant the court in reviewing its former decisions on this subject, much less in reversing them.

Nor is the right to maintain the action affected by the fact that the alleged illegal act may he reviewed or corrected in some other way. Such a rule would practically repeal the statute, since many of the official acts of public officers are

The controversy in this case depends upon the meaning, scope and application of a new provision which has been inserted in the Constitution : “ Appointments and promotions in the civil service of the state, and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive; * * * Laws shall be made to provide for the enforcement of this section.” (Art. 5, § 9.)

Ho one can deny that this provision of the Constitution is a limitation upon the power of appointment to places in the civil service. It is not a mere authority to the legislature to create a limitation. It is a limitation in itself, and by its own force affects not only the power of the legislature over the subject, but that of every public officer in the state who has been intrusted with the power to make appointments. All such officers who, since the first day of January, 1895, have taken the oath to support the Constitution, have virtually sworn that they would make no appointments in the civil service except according to merit and fitness, to be ascertained, so far as practicable, by competitive examinations. The argument of the learned corporation counsel, as I understand it, is to the effect that until the legislature shall make further regulations on the subject, it is impossible to carry out the pledge involved in such an oatli. Since it will be necessary to refer to this subject hereafter we need not now stop to inquire how far it is true in fact that public officers are confronted by such a dilemma.

The scope, meaning .and intent of every constitutional limitation upon power must, in the end, present a judicial question. Administrative or ministerial officers, who have to deal with the limitation in the performance of their duties, are bound to decide all questions that may arise as to its application

That is the precise character of the controversy presented by this record. The comptroller and other executive officers of Brooklyn have filled eleven designated places in the civil service of that city since the Constitution went into effect without any examination whatever to test the merit or fitness of the appointees. If they have made these appointments with regard to merit or fitness, then, obviously, they must have ascertained these qualities in the appointees in some other way, or by some other method, than that which is clearly pointed out in the Constitution. The validity of these official acts is challenged by the citizens of Brooklyn who pay taxes and who are authorized to bring all such acts to the test of the law and the Constitution by an appropriate action.

That it was practicable within the meaning of the Constitution to ascertain the merit and fitness of these eleven persons by competitive examinations, is not, I think, now an open question. It was found unanimously by the court below that such examinations were practicable, and even if the question could be regarded as an original one here there could be no doubt about if from the nature of the duties to be performed. There was a stamp clerk and a clerk to the board of aldermen, a dock-master and an assistant warrant clerk, a collector of license fees in the fire department and a surveyor of land in the department of assessments, a clerk in the license bureau and another in the department of audit, what is called a secretary to the department of buildings, with duties purely clerical, and a clerk in the law department, and, finally, a finance clerk in the

The title which is given to this appointee does not describe his duties, which are of the most routine character. They ■cannot by any effort of the imagination or any refinement of reasoning be made to bring the place within any exception to the general rule of competitive examination. The duties of such clerks or agents are not involved in any doubt or mystery. They are matters of common knowledge, and it would be impossible for any court to assign any satisfactory reason why such places cannot be filled by the appointing power according to the scheme of the Constitution.

But the plaintiffs at the trial did not rest the case upon the right of the court to take judicial notice of the duties of the several appointees. They gave a mass of testimony derived from various sources tending to show that it was practicable to fill all the places by competitive examination. The defendants gave none, and, so far as this question depends upon facts, the proof on the part of the plaintiffs was uncontradicted..

Six judges of the Supreme Court have determined unanimously that it was practicable to fill all these places by competitive examinations. In my opinion this court has no right to review the decision upon this question. Whether it is practicable to do a certain thing in a certain way must in some measure at least depend upon facts and circumstances that ■may be the subject of inquiry at the trial. The question, when determined there and affirmed by the Appellate Division, should be regarded in this court as settled for all the purposes of the case. The jurisdiction of this court is confined to questions of law, and whether it is practicable to fill a given place in the public service by competitive examination is not a pure question of law. It may in many cases require proof as to the nature of the duties to be performed, and when the proof is given it is for the trial court to pass upon it,

When the Constitution went into effect on the first day of January, 1895, it became, with respect to all appointments and promotions in the civil service of the state or in any city, the supreme law of the land, anything in any statutes, rules or regulations to the contrary notwithstanding. In so far as the statutes, rules and regulations upon the subject of admissions to the civil service were not repugnant to the Constitution, they undoubtedly remain in force, but in so far as they were inconsistent with or repugnant to it, or in any respect tended to defeat, obstruct or evade the plain mandate which it contained, they were swept away and immediately ceased to exist. The mandate of the Constitution was that thereafter a certain thing should be done in a certain way if it was practicable to do it in that way, and it was not only an affirmative command to do the thing in that way, but a negative prohibition against doing it in any other way. (People v. Draper, 15 N. Y. 544 ; Rathbone v. Wirth, 150 N. Y. 468 .) If the Constitution did not contain within itself, or with the existing laws which it preserved, all the means for the execution of the affirmative

We have, therefore, a case before us where the Constitution commands that appointments shall be made only after competitive examinations, when such examinations are practicable. We have the question settled that it was practicable to till the places by competitive examinations, and we have the conceded fact that the appointments were made without any examinations whatever. The vital issue between the parties to this action is whether these appointments were legal or illegal, whether made in violation of law or in conformity with law. I have thus far confined the discussion to certain propositions that are either admitted or not seriously contested. Most, if not all of them, are so plain as to be self-evident. If they are not then they are, as it seems to me, so strongly entrenched in reason and in law that they cannot be Aveakened by argument or entangled by sophistry. They lead logically and inevitably to the conclusion that the appointments in question were illegally made, and but for the elaborate argument of the learned corporation counsel to proA'e that they were made in accordance with the Constitution and the law the discussion might end here.

That argument deserves a fair analysis, though it is quite difficult to summarize it accurately. It would not be fair to approach the argument in justification of these appointments in any narrow, captious or fault-finding spirit. We are not much concerned with individuals, and we can look at their acts and conduct with the broadest charity. We are dealing with principles and not men. We are concerned with the Oonsti

We cannot allow this case to turn upon any smaller question than the true intent and meaning of the Constitution. If the intent and meaning be what the corporation counsel claims then there is no case against the officers who have been made defendants, but if, on the contrary, the Constitution has been ignored in making the appointments, we ought to declare the fact, no matter who is affected by the result.

The argument of the learned corporation counsel may be summarized as follows:

(1) The Constitution has neither enlarged the duties nor abridged the powers of public officers making appointments in the civil service of the state or of any city. The Constitution was simply intended to preserve the statute and it means just what the statute meant and no more.

(2) These appointments were made in conformity with the statute and rules regulating admissions to the civil service in force prior to January 1, 1895. That the rules under which they were made were then in force and are still in force, not having been affected by the adoption of the Constitution.

(3) That the mayor of Brooklyn was authorized to determine and has determined that it was not practicable to fill any of these eleven places by competitive examinations, and that such determination protects the defendants and all their appointees and is binding upon the courts.

(4) That all questions with respect to such appointments are purely administrative within the power and discretion of the appointing power, whose decision is final and not subject to be questioned in an action by a taxpayer.

These propositions are slightly softened or modified in the course of the argument by certain exceptions, and these excep

The non -competitive schedule plays such an important part in this controversy, and indeed must play such an important part in the administration of every civil service law, that the questions in dispute cannot be fairly treated or clearly understood without an accurate knowledge of the origin, growth and real meaning of that schedule. Before the Constitution was adopted, and under the statute and rules, the administration of the law in the state was left largely with the governor, and in cities with the mayor. They could exercise what may well be called the dispensing power, that is, the power to say

The places were to be filled by examinations “ as nearly as the conditions of good administration will warrant.” The mayor was to make regulations for the admission of persons to the civil service of the city upon the principle of competitive examinations “ as may best promote the efficiency thereof.” These vague and ill-defined exceptions and limitations did not confine the appointing power to the question of practicability, as the Constitution now does. It is true that the word is used in the statute, but only in connection with the vague discretionary provisions above referred to. The result was, as might well have been expected, that there was constant complaint that the power to dispense with the operation of the law was frequently abused. Such vague powers always have been and always will be abused. The dispensing power was the prolific source of irritation between the government and the people in England for centuries, and we know what the result was in the end. When the original regulations were made by Mayor Low, in 1884, there were only five of the places in question placed in that favored schedule. The other six have been added since 1894. The exemption of the five places in the original schedule was not made because it was impracticable to fill them from the eligible list, but on grounds of policy and expediency, which constrained a cautious executive

So it is plain that this schedule, at the time these appointments were made, had little, if any, relation to the question of practicability. It represented many other things and was based upon many other reasons.

It represented a liberal exercise by the mayor of his dispensing power, based simply upon the wishes of heads of departments. They frequently found the law an obstacle in the way of discharging obligations which were supposed to be due to personal or political friends, and often succeeded in persuading the executive to relieve them from its trammels, and the non-competitive schedule was the favorite device for this purpose.

Thus, by the exercise of the discretion conferred by the statutes upon the executive to dispense with the law in special cases, all the evils which the statute was intended to suppress grew and flourished under it until the method of administration become a reproach to all concerned, and the law itself was in danger of falling into contempt with the people. The convention to amend the Constitution was regarded by the friends 'of the law as a favorable opportunity to rescue it from the scandal connected with administration which originated in the exercise of discretionary power, and they seized upon it and the result wa's that the principle was embodied in the Constitution in language that- is not to be mistaken. It was precisely the abuses to which I have referred, and especially the evasions which had theretofore existed through the operation of the non-competitive schedule, that were intended to be swept away by the Constitution. Nothing can be clearer than that there was present to the minds of the members of the convention the abuses in the administration of the law which have been referred to. The amendment was evidently drawn by the friends of the reform, and the convention .was called upon to adopt or reject it. The former course was

It should also be noted that the placing of these positions in that schedule was in the nature of a privilege or a favor to the appointing officer. He was not obliged to accept the privilege or act upon the dispensation. He could still fill the place, if he wanted to, from the eligible list made up as the result of competitive examinations. He could still act upon the general rule, which was competition, and refuse to avail himself of the right to dispense with the law. A place that may be filled without an examination may also be filled at the election of the appointing officer by the appointment of a person whose merit and fitness for the place have been ascertained by competitive examination. Even in cases where the constitutional test may be dispensed with, the fact that the candidate has passed the test can never disqualify him for any appointment.

The learned corporation counsel argues that the defendants could not have made these appointments in any other way In this he is clearly mistaken, since, when the non-competitive schedule was abrogated by the Constitution, they had the eligible list to fall back upon and could have selected every one of the appointees from that list. Had they taken that course, they would now stand upon solid ground and would be armed with the weapons for a complete answer and defense to all such actions as this. The claim that the mandate of the Constitution could not be obeyed, when the appointing power had all the time at hand the eligible list to select from, cannot for a moment be entertained. Even if it were true that these appointments could not have been made under the Constitution, the worst that could happen would be, not to make them

But we have seen that, in so far as the non-competitive schedule had been abrogated by the Constitution, the competitive schedule and eligible list took its place, and there was not the slightest difficulty in making the appointments from them. The eleven names in question were not found on any list. The places had been thrown into the non-competitive schedule, and the defendants, in the belief, no doubt, that the old state of things continued, selected the appointees according to their own will.

The learned corporation counsel has made one important exception to his fundamental proposition that the power of the mayor to dispense with examinations in special cases still exists. He admits that the privileges of veterans have been abolished. This court has so decided, and also that the legislature has no power to dispense with the law in cases where the compensation does not exceed $4 per day. (Keymer Case, 148 N. Y. 219 ; Sweeley Case, 12 Misc. Rep. 174 ; 146 N. Y. 401 .) This is a significant admission. If the legislature had no power to exempt veterans, and had no power to make the test of practicability depend op compensation, what became of those numerous exemptions from all examinations made from time to time by the mayor, not only before but after the Constitution went into effect, where examinations were practicable ? What good reason is there for the contention that, while the former have been abrogated or invalidated by the Constitution, the latter remain in full force ? The Constitution has left but one exception to the general rule, and that is a case where it is not practicable to fill the place by competitive examination. It is not enough that the legislature, or some administrative officer, has declared that it is not practicable in a given case. It must appear, when all the reasons and circumstances are

The fatal weakness in the argument of the learned corporation counsel is found in the assumption that not only all assignments made by the mayor to the non-competitive schedule prior to the adoption of the Constitution on January 1, 1895, . remained in force, but that after that date he had the power to continue to make such assignments, with or without reason, and without regard to the question whether examinations were practicable or not. In other words, the claim is made that the dispensing power has not been affected by the Constitution. This position is plainly untenable. Every assignment to that schedule made before the Constitution took effect, in which it was practicable to fill the place by competitive examination, has been abrogated, and every assignment of a like character since made is void since they are in conflict with the Constitution.

When the appointments were made they were all by force of the Constitution in the competitive schedule, which in fact and in terms covered every one of the places, and the appointees should have been selected from the eligible list.

The question whether the Constitution is self-executing is not a practical one in this case. The question is whether, by its own force and by force of all the civil service laws and regulations which are behind it and are preserved by it, these eleven appointments should not have been made from the eligible list. The Constitution found and left a complete system of statute law in force which was ample to enable every appointing officer to execute its mandate, and it extended the civil service principle to all the civil divisions of the state, including villages. It is said that since counties and villages have no adequate means of putting the constitutional provision in force, it cannot be self-executing, but must await legislation.

This is undoubtedly the most favorable situation that can be selected to enforce the argument that the Constitution is

While we are not concerned in this case with appointments in villages or counties, it would not be difficult to show that there is not a village or county in the state in which the mandate of the Constitution cannot be complied with to-day without further legislation. It is only necessary that the appointing authority should be in harmony with the law and absolutely bound to obey it and respect his official oath. If he is zealous to comply with the Constitution all difficulties will immediately vanish. Let him but announce to the public that he will make no appointments to office except according to merit and fitness, to be ascertained by competitive examinations, ■and he will not fail to find candidates at hand who have complied with the test. The state civil service examinations are held periodically in every locality of the state, and from that source he can obtain an abundant supply of qualified candidates for every pilace that he may desire to fill. It is not necessary in order to put the mandate of the Constitution into immediate operation to wait until a village or a county civil ■service board is organized by the legislature. All the Constitution requires is that there shall be an honest, open, competitive examination, and the state can furnish that even to candidates in the particular county better than any local authority.

A village or county civil service board would be likely to be or become a weak, inefficient thing, while the state has ■every facility for placing at the door of the appointing officer ■all the machinery necessary to enable him to execute the mandate of the Constitution. Any county clerk or other ■county officer who has appointments to make, and who ■earnestly desires to comply with the Constitution, will find no ■difficulty in accomplishing his purpose. The legislature has undoubted power of regulation, and doubtless there may be ■cases where it should be exercised, but the broad assertion

One of the main purposes of the Constitution, and of every civil service law or regulation, is to produce an honest, eligible* list. When the appointing power has full and free access to that there can be no difficulty in complying with the letter and spirit of the Constitution. Even before the constitutional provision went into effect competitive examinations were the rule of the civil service, and no examinations whatever the exception. These exceptions have been abolished, and the Constitution has put it out of the power of the legislature, or of any executive officer, to make a new exception, or to maintain an old exception to the general rule that competition shall prevail, unless shown, as matter of fact, to be impracticable. That is the only condition upon which the Constitution will permit any deviation from the law, and since, in every view of this case, that condition did not exist, the appointments in question were in violation of the commands of the Constitution.

There is, it seems to me, a strange discord between the doctrines of the prevailing opinion in this case and the former utterances of this court on the same questions. The keynote of that opinion is that the classification of the governor or the mayor, though in conflict'with the Constitution and the statute, is, nevertheless, good, and protects all executive officers and appointees until set aside. If this proposition is sound, then it follows that the mayor may place all appointments in the non-competitive schedule and thus abolish all examinations, and no one can complain till the classification itself is attacked by some proceeding to set it aside. We are not told how or by whom this executive act, abolishing examinations, may be set aside, though mandamus or certiorari are both hinted at as remedies.

The classification in this case was made about thirteen years ago, and it is too plain for argument that mandamus will not lie to compel the mayor to change it or to make it in some other way It is elementary law that, while mandamus will lie to compel a public officer to act who refuses to move at all, it will not lie to compel him to act in some particular way.

It is equally clear that certiorari will not lie. That writ must be brought within four months from the time of the classification, and, therefore, the right of review in that form expired more than twelve years ago, if it ever existed. (Code, § 2125.)

But it is obvious that the right to review by means of that writ does not exist at all, and never did exist. The writ of certiorari is now governed and regulated by section twenty-one hundred and twenty, chapter sixteen, article seven, of the Code, and it is only necessary to read the statute in order to see that it has no application to the acts of the governor or mayor under the civil service law. Official acts that are executive, legislative or administrative in their nature and character were never subject to review by certiorari. That a classification made by the executive under the civil service law is such an act, and, therefore, not subject to such review, is indisputable. (People ex rel. Copcutt v. Board of Health, 140 N. Y. 1 ; People ex rel. Vil. of Jamaica v. Supervisors, 131 N. Y. 468 ; People ex rel. S. A. R. R. Co. v. Park Commissioners, 97 N. Y. 37 ; People ex rel. Corwin v. Walter, 68 N. Y. 403 ; People ex rel. S. & U. H. R. R. Co. v. Betts, 55 N. Y. 600 .)

Indeed, the decision, when followed to all its logical consequences, practically abrogates both the Constitution and the statute, since it mates the will of the executive the supreme law.

It is certainly a radically new departure in this class of actions to turn the plaintiffs out of court who, as taxpayers, are seeking to restrain the operation of official acts, conceded to be illegal, upon the theory that they should have resorted to such fanciful and impossible remedies.

The judgment should be affirmed.

Bartlett, Martin and Vann, JJ., concur with Haight, J., for reversal; Gray, J., reads for modification, and Andrews, Ch. J., concurs; O’Brien, J., reads for affirmance.

Judgment reversed and complaint dismissed.