People ex rel. Sweet v. Lyman

At the time of the relator’s appointment chapter 354 of the Laws of 1883, as amended, provided for the appointment of commissioners who should constitute the 27ew York civil service commission. It then made-it the duty of

But it is contended that the provisions of the Constitution of 1894 relating to this subject have suspended or repealed the law and rules existing at the time, so that the defendant had no authority to make a probationary appointment. In other words, the appellant’s claim is that, having been appointed by the respondent in pursuance of a certificate of his eligibility furnished by the civil service commission, his appointment could not be limited to any probationary term, and, therefore, he could not be removed except for cause shown after a notice and hearing.

The effect of this provision upon the existing statute and rules of the civil service commission has been several times considered by this court. In People ex rel. McClelland v. Roberts ( 148 N. Y. 360 ,363) it held that chapter 354 of the Laws of 1883, as amended by chapter 681 of the Laws of 1894, constitutes 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, and that by section 16 of article 1 of the Constitution of 1894, that act was continued in force as the law of the state, subject only to such alterations as the legislature might make. In delivering the opinion in that case Judge O’Bbien said : “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.” In Chittenden v. Wurster ( 152 N. Y. 345 , 355) it was held that the statute of 1883 was in force, and provides the necessary machinery for carrying the provisions of the Constitution into effect, and the doctrine of the McClelland case

We think this proposition should be sustained upon principle, as well as upon the authority of our former decisions.. The declaration of the Constitution is that appointments and promotions shall be made according to merit and fitness. The obvious purpose of this provision was to declare the principle upon which promotions and appointments in the public service should be made, to recognize in that instrument the principle of the existing statutes upon the subject, and to establish merit and fitness as the basis of such appointments and promotions in place of their being made upon partisan or political grounds. (Record Constitutional Convention, vol. 5, p. 2444; vol. 6, p. 2552, et seq.) It then declares that merit and fitness shall be ascertained by examinations, and also the extent to which they shall be thus determined. The extent to which examinations are to control is declared to be only so far as practicable. This language clearly implies that it is not entirely practicable to fully determine them in that way. It was the purpose of its framers to declare those two principles and leave their application to the direction of the legislature. As was said by the chairman of the committee to which this amendment was referred: “ It seemed best to the committee, after very careful and repeated consideration, to leave the application

Assuming then that the framers of the Constitution contemplated that other methods might also be employed, surely

Moreover, when this constitutional provision was adopted, and when it was proposed in the convention, the statute and civil service rules to which we have adverted were in force and were well known to and understood by the framers of that provision. Hence, it is but reasonable to suppose that when it was proposed they had the existing statute and rules in view, and did not intend to supersede or interfere with them. In the words of Judge O’Brien : “ 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.” ( 148 N. Y. 369 .)

While it is true that under the Constitution the merit and fitness of an applicant for appointment in the civil service of the state or its civil divisions are to be ascertained, in part at least, by an examination, competitive or otherwise, except in cases where such an examination would be wholly ineffectual to determine those questions, still, even in cases where an -examination may be had, it is to control only so far as merit

Again, when we examine the history of the reform in the civil service, we find that the question of its propriety had arisen and been considerably discussed in this country for a considerable time before the year 1871. In the month of March in that year Congress passed the first civil service statute enacted in this country. That statute, however, was short and amounted to but little more than a mere declaration of the principle of civil service reform, with brief and what were regarded as insufficient provisions as to the means of carrying it into effect. It remained in that situation until 1883, when by reason of a continued agitation of the subject, the statute was extended and enlarged so as to include substantially all the provisions of the present law upon the subject. In that year the legislature of the state of Mew York also passed the act under consideration which is, in all its essential particulars, like the act of Congress. ■ That statute has been in full operation and effect in this state since that time, without amendment except in some minor particulars. Thus, although the act of 1883 was, to an extent, considered as tentative when passed, the experience of thirteen years under its provisions, both in relation to the State and Federal governments, had not, when the State Constitution was amended, seemed to its friends to require any radical or substantial change. Both the Federal and State statutes embodied the principle or method of probationary trials as a means of determining the merit and fitness of candidates. This method had also been employed in the civij service of Great Britain since 1855. The English civil service rules in existence then and since provide that no person shall receive a formal appointment in the civil service until his practical capacity and disposition have been tested by a probationary trial of six months,

The propriety of this method is also particularly recognized by such civil service advocates as Dorman B. Eaton and Silas W. Burt. The former, one of the earliest and most earnest advocates of civil service reform, in substance, says that the period of probation before actual appointment is necessary to exclude an applicant, if any should have passed the competition successfully who are found wanting in practical ability for the work. (Ency. Political Science, vol. 1, 485.) The latter, who for more than thirty-five years has been interested in the reform of the civil service, and under whose direction the first civil service examination in this country was had, in speaking of the subject of probationary trials, says: “ This limitation (referring to the selection from the three persons standing highest) reduced the opportunities for favoritism to the lowest point deemed possible, since a restriction to the one person standing highest would annul the officer’s discretion and responsibility for the appointment, while the three names gave a discretionary range that has by long trial been approved as sufficient, particularly since it was supplemented by appointment for a probationary period only before a permanent tenure was given. This probation was an essential part of the examination and has in practice shown how satisfactory the antecedent procedure was since the number of those who were dropped from service during or at the end of the probationary period has been so inconsiderable that it may be disregarded.” (Report of 1897.) Thus we find not only that the civil service rules of Great Britain, the act of Congress, the

This is made more clear when we remember that the individuals and organizations that were urging this amendment had previously induced the legislature to adopt the statute of 1883 and the statutes amending it, and that they were also influential in shaping the rules which were adopted by the civil service commission.

Obviously there are many positions in the civil service where the merit and fitness of an applicant cannot be ascertained with any certainty by a mere examination under the rules of the civil service. It seems apparent that what was intended by this provision of the Constitution was that merit and fitness should be the basis of appointments of , public officers and employees, and that those qualities should be ascertained and determined, so far as they could be practicably, by such an examination, but that other and further methods should be employed when necessary to secure efficiency of service. It is manifest that actual trial of an appointee in the place which he seeks would furnish better means to accurately determine his fitness and merit than would any mere examination that could be had. Oan it be said that the purpose of this provision was to prevent a probationary trial to discover the fitness and merit of an applicant, in view of the language employed, and of the extent to which probationary terms were then provided for ? It is obvious that in many cases an appli

If this provision of the Constitution is absolute, and permanent appointments must be made whenever the civil service board certifies that an applicant is eligible, then, as the Constitution makes no exception as to confidential clerks or employees, no reason exists why it must not be enforced in those cases as well as in any other. It is true the statute in relation to veterans provides that it shall not apply to a private secretary, deputy of any official or department, or to any other person holding a strictly confidential position. That, however, is a mere declaration of the legislature, and if the Constitution of 1894 relates to all appointments and positions in the civil service, and makes the examination by the civil service commission as to merit and fitness the measure which controls, then the Veterans’ Act, so far as it relates to confidential appointees, is in conflict with that provision and is invalid.

We think there are two classes of cases where the question of practicability arises; one, where the place is such that no examination can be bad because the questions of merit and fitness for the particular place cannot be reached in that way, and the other, where an examination may be had, but different and additional tests will tend to secure an improved service by more accurately determining these -questions. If the statute providing a probationary term as one of the

As it is evident that the amendment of the Constitution was not intended to provide that civil service examinations should be the sole means of determining the merit and fitness of applicants, and as it expressly declared that laws should be made by the legislature to provide for its enforcement, and in view of the fact that this court has already decided that the statutes which were in existence when the Constitution was adopted are still in force, and are the laws of this state relating to the subject, we think it cannot be properly held that the statute which then provided for a probationary appointment as one of the means of ascertaining the merit and fitness of applicants, is in conflict with that provision of the Constitution. ,

But it is said that if this construction of the Constitution shall obtain, its provisions may be violated by unscrupulous and dishonest officers. That may be. There are few statutes or constitutional provisions that may not be thus violated. But in construing the language of the Constitution, distrust of public officers, or fear that they may not discharge their full duties, should not be assumed or entertained and made a basis for holding the statute of 1883 in conflict with it. In construing this amendment, this court should not assume that public officers will not perform their duty or will fail to discharge the responsibilities imposed upon them by law in an

By these considerations we are led to the conclusion that the law of 1883, providing for a probationary term in which to test the merit and fitness of an applicant for a position in the civil service of the state or the various municipalities thereof, is not in conflict with the provisions of section 9 of article 5 of the Constitution. Therefore, that statute being valid and in force at the time of the relator’s appointment, it is obvious that his services for the state were properly terminated so far as the civil service laws and regulations are involved.

This brings us to the consideration of the question whether the rights of the relator are controlled by the Veterans’ Act (Ch. 821, L. 1896). It is contended that, independently of the Civil Service Law and by virtue of that act, a veteran has an absolute right to be preferred and appointed to any appointive position he seeks, unless the officer or department having the power of appointment shall show affirmatively, upon a hear

The Veterans’ Act, however, declares that its provisions shall not be construed so as to apply to any person holding a confidential position. So that if the position of special agent was confidential, then chapter 821 has no application in this case, although it may have force in others. Section ten of the Liquor Tax Law (Ch. 112, L. 1896) permits the state commissioner of excise to appoint not more than sixty special agents at an annual salary of twelve hundred dollars, payable monthly, and then declares: “ Such special agents shall be deemed the confidential agents of the state commissioner, and shall, under the direction of the commissioner and as required by him, investigate all matters relating to the collection of liquor taxes and penalties under this act, and in relation to the compliance with law by persons engaged in the traffic in liquors.” Then follows a detailed statement of the duties of such special agents, which shows quite clearly that they are of an important and confidential character. The position of such an agent is one in which he represents the commissioner in a manner and to an extent which may well be regarded as strictly confidential. Thus we find that the same legislature, which excepted from the operation of the Veterans’ Act any person holding a strictly confiden tial position, declared the position held by the relator to be confidential.

That the position of special agent is confidential there can be little doubt. This court has had occasion recently to several times consider the question as to what constitutes a confidential position. In Matter of Ostrander ( 12 Misc. Rep. 476 ) it was held that the position of deputy superintendent of public buildings was a confidential one, and¿ therefore, fell within the exception to the Veterans’ Act, which gave preference in appointment to honorably discharged soldiers, sailors and marines. That case was affirmed by this court on the opinion of the court below. ( 146 N. Y. 404 .)

In Chittenden v. Wurster (Id. 360) this question was also considered, and, after referring to the Grummey case, it was there said: “ We then were of the opinion that where the duties of the position were not merely clerical, and were such as were especially devolved upon the head of the office, which, by reason of his numerous duties, he was compelled to delegate to others, the performance of which required skill, judgment, trust and confidence and involved the responsibility of the officer or the municipality which he represents, the position should be treated as confidential.”

When we read the provisions of section ten of the Liquor Tax Law, which declare that a special agent shall be deemed the confidential agent of the state commissioner, and ascertain the duties he is required to discharge under the immediate direction of the commissioner, it becomes manifest that they are of a confidential character. His acts are official acts performed for and in the name of the commissioner, and are not only secret, but they also involve trust and confidence which are personal to the appointing officer. The duties cast

It is, however, said that the civil service commission has placed the position of special agent in the list where competitive examinations are required, and, hence, the position cannot be regarded as confidential. Surely the civil service commission cannot change the actual status of a position by declaring one which is actually confidential not to be so, nor is it vested with power to repeal a valid statute or to practically annul it by declaring a position to be competitive when the law has provided otherwise, and the position is plainly of a strictly confidential character.

I find no significance in the suggestion that the question of the confidential character of the position of special agent was not raised by the excise commissioner in the courts below. If that were admitted, it would not aid the relator, as it is a universal rule that it is the duty of an appellate court to affirm a judgment which is correct, although the ground assigned for the decision may be untenable. In other words, the rule requires that a correct judgment should be affirmed, regardless of the correctness of the reasons given for awarding it. If the act of 1883 is valid and still in force, and the position of special agent is a confidential one, it follows that the judgment was right and should be affirmed.

We are of the opinion that the statpte of 1883 and the statutes amendatory thereof are still in force and are not in conflict with the Constitution ; that the position of special agent was a confidential one; that the relator was not entitled to be appointed to or retained in the position of special agent,. and that the Appellate Division properly so held.

The order should be affirmed, with costs.

(dissenting). William H. D. Sweet, the appellant, is a citizen of this state and is an honorably discharged soldier of the Union army during the late civil war, having-served therein as a second lieutenant of the Third regiment of cavalry of Hew York state volunteers.

In June, 1896, he passed the civil service examination and was placed upon the register of applicants eligible for appointment to the position of special agent under the Liquor Tax Law. On the 26th day of September thereafter, the defendant ajipointed him to the position of special agent for a probationary term of three months, upon a salary of $1,200 per annum. He thereupon entered upon the discharge of the duties of his position and served the term for which he was appointed. On the 19th day of December, 1896, he received a letter from the defendant notifying him that his efficiency and capacity for the work required as a special agent during his probationary term of three months had not proved satisfactory, and that his employment would cease on the 23d day of December thereafter. On the 8tli day of -April, 1897, he petitioned the court for a peremptory writ of mandamus directed to the defendant commanding him to reinstate him to the position of special agent, or for such other and further relief as may he just and proper. In his petition he alleged that he had the capacity required for the performance of the duties of a special agent, and that lie was efficient in the discharge of his duties as such during his probationary term. The defendant opposed his application for the writ upon an affidavit tiled by him asserting his inefficiency and incapacity for the discharge of the duty of the position. Hpon the hearing of the motion before the court, the relator asked that an alternative writ issue in order that the question of his capacity and efficiency might be determined by the court. The court- refused to issue an alternative writ and denied his-motion for a mandamus, and this order was affirmed in the Appellate Division.

Chapter 821 of the Laws of 1896 provides that: Ҥ 1. In every public department and upon all public works of the

It may be that the provisions of this act casting the burden of proving incompetency upon an officer charged with the duty of making appointments to the civil service is unwise, and that the clause making him guilty of a misdemeanor, and liable personally in damages in case he fails to allow the preference provided for, is harsh and unreasonable. Possibly these provisions may operate to deter officers from exercising their judgment against applicants in considering their business capacity, and that, in consequence, incompetent persons may receive appointments to positions in the civil service, thereby prejudicing the public interests; but as to the wisdom and effect of these provisions we have nothing to do, and if they are unwise, harsh and unreasonable the remedy is with the

The statute, as we understand it, as applied to the case under consideration, casts the burden of showing that the relator did not possess the business capacity necessary to discharge the duties of special agent upon the defendant. He appointed the relator for the probationary term óf three months, provided by the statute and the rules promulgated by the governor. The commissioner t-lms had an opportunity to ascertain his competency and business capacity. At the end of the probationary term'the relator, being an honorably discharged Union soldier, ivas entitled to his permanent appointment, provided he possessed the business capacity necessary to properly discharge the duties of the position. The commissioner, in the first instance, was charged with the duty of determining that question of fact. He found against the relator, but his finding is not conclusive. Under the provisions of the act the relator is given the right to have the correctness of the commissioner’s determination ascertained by mandamus. This remedy he invoked, and it appears to us that, upon the papers presented, he was entitled to an alternative writ, to the end that the question raised with reference to his competency and business capacity might be tried and determined by the court in the usual way.

It is now contended that the provisions of the Liquor Tax Law (Chap. 112, sec. 10, Laws of 1896) provide that the special agents “ shall be deemed the confidential agents of the state commissioner,” and that the provisions of the act which Ave have above considered do not apply to any “ person holding a strictly confidential position.” It will be observed that in the Liquor Tax Luav the word “ strictly ” is omitted, but assuming that it Avas the intention of the legislature to make the position of special agents a strictly confidential position, the question then arises as to Avhether it is in conflict -with the civil service clause of the Constitution, which provides that “ appointments and promotions in the civil service of the state * * "x" shall be made according to merit and fitness, to be ascertained,

The order of the Appellate Division and that of the Special Term should be reversed and an alternative writ issued, and for that purpose the proceeding should be remitted to the Special Term, with costs to abide the final award of costs.

(dissenting). I agree with Judge Haight for reversal but place my vote on the grounds stated in his opinion and the additional ground based on the civil service provisions of the Constitution (Art. Y, § 9).

The fundamental law commands that appointments and promotions in the civil service shall be made according to

In my opinion, when the name of a veteran is duly reached on the eligible list, he is entitled, under the provisions of the Constitution and the law enacted to carry them out,-to an absolute appointment, and thereafter can be removed only for incompetency or misconduct. (Ch. 821, Laws 1896.)

The provisions for a probationary appointment of three months (Laws 1883, ch. 354, § 2, and rule 12 of the Civil Service Board) are contrary to the letter and spirit of the Constitution, and consequently void. The rule enacted by legislative authority, and as amended in 1896, provides : “ At the end of such term, if the conduct, capacity and fitness of the probationer are satisfactory to the appointing officer, his retention in the service shall be equivalent to his absolute appointment; but if his conduct, capacity and fitness be not satisfactory, he may be discharged at any time.”

If this rule and the legislation upon which it is based can stand, it may be well asked what has become of that protection which the Constitution is supposed to afford the veteran after his merit and fitness have been ascertained by a competitive examination and his name entered on the eligible list?

It comes to this, that he receives his absolute appointment only if his conduct, capacity and fitness are satisfactory to the appointing officer. To my mind, this amounts to a practical repeal of the constitutional provisions to which reference has been made.

If the act of 1883 and the rule framed in pursuance of it stand, the legislature can repeal the act of 1896 and all other acts standing in the way, and appointments will depend upon the whim, the caprice, of an appointing officer if he is disposed to abuse the power with which he is vested.

The civil service policy of the state, which was finally placed iu the Constitution, seeks to do away with this abuse of power and patronage.

I am not content to rest my vote solely on tlie act of 1896.

Martin, J., reads for affirmance. Parker, Ch. J., Gray and Vann, JJ., concur. Haight, J., concurs so far as it relates to the civil service provisions of the Constitution and statutes, hut dissents as to the portion relating to the Veterans’ Act upon the grounds specified in his opinion.

Haight and Bartlett, JJ., read for reversal, and O’Brien, J., concurs.

Order affirmed, with costs.