Grifenhagen v. Ordway

The ultimate question presented here is, was Lester M. Friedman legally and validly appointed by the appellant Grifenhagen, while sheriff of Yew York county, a jury clerk in his office. The appointment was made October 11, 1915, directly by the appellant and without regard of the civil service commissioners and their powers. The respondents assert and argue that the appointment was illegal, because the position of jury clerk belonged in the competitive class of the civil serv

In Matter of Flaherty v. Milliken ( 193 N. Y. 564 ), the legality of the appointments by the sheriff of Kings county of assistant deputy sheriffs, jail keepers, van drivers and matrons in his office was denied by the civil service commission and was determined by us. We held those appointments, except those of the van drivers, legal, and considered and expressed through the opinion written by Chief Judge Cullen, concurred in by his associates, the nature of the office of sheriff and the relations existing between the sheriff and those appointees. A claim of the respondents here is that the duties of Friedman as jury clerk were not sufficient to bring the appointment within the effect of our decision. .

The principle from which the decision in the Flaherty case sprang was that the appointees were, in so far as they participated in the duties of the sheriff relating to civil functions, in the service of the sheriff personally; that the relation between him and those who served him in such duties was that of master and servant or principal and agent. Chief Judge Cullen stated it thus: “The question which lies at the threshold of this controversy is whether the deputies, assistant deputies and other appointees of the sheriff are, as far as they discharge the duties of the sheriff relating to civil process, in the service of the county or in the service of the sheriff personally, though they are undoubtedly public officers and liable to criminal punishment as such for official misconduct. If they are not in the service of the county but in that of the sheriff, the positions held by them fall neither within .the constitutional provision, nor within the purview of the statute.” (p. 56J.) This decision was rendered in December, 1908. The constitutional provision referred to (Section 9 of article 5) remains without change and no relevant

The principles which controlled our decision in the Flaherty case are applicable to the present facts and must control our present decision. The duties of Friedman as the jury clerk are the duties of the sheriff and relate to the functions of the sheriff in civil matters. While they are not the same as those performed by the appointees in the Flaherty case, and are or may be less important, they are the duties of the sheriff, performed by Friedman as the agent of the sheriff and not as the agent of the county of New York.

The counsel for the respondents and for the intervenors urge earnestly, even vehemently, that we should reverse the Flaherty case, in compliance with the demands of public opinion as indicated to exist in the Civil Service Law and the regulations and reports of the civil service commission. The demands of public opinion are voiced more accurately by legislative enactments than by the assertions and arguments of counsel or the reports of the commission. The Flaherty case, as we have stated, was decided in 1908. In it we said: “It may also be that the legislature might by an appropriate statute change the nature of the relation between the sheriff and his appointees so that the latter would no longer be strictly agents of the former but independent public officers liable for misconduct directly to any one injured by the same. Assuming, however, such power in the legislature, no such intent should be ascribed to a statute except where such intent is very plainly indicated. It would throw the whole law upon the subject of the liability of a sheriff and his deputies or his appointees as it has existed for centuries into confusion, and make one rule applicable in one

We should not undermine the law by reversing a decision of this court unless it has been demonstrated to be erroneous through the failure by us to consider a statute, prior decision, material fact or other substantial feature, or unless through changed conditions it has become obviously harmful or detrimental to society — a condition the legislature will very rarely suffer to exist. Certainty is of the very essence of the law. Shifting and changing rules or principles do not constitute law. The avoidance or prevention of litigation through the establishment by the courts of fixed and certain rules is a useful and beneficent effect of the litigations had. “Certainty,” says the learned and sagacious Coke, “is the mothér of quietness and repose, and Incertainty the cause of variance and contentions.” We are unwilling to regard the question as to the relation of the sheriff and his subordinates performing duties relating exclusively to the functions of the sheriff’s office in civil matters as open to further discussion here and we adopt the language mutatis mutandis of the Supreme Court of the United States, used under a similar condition: If the court was wrong in the Flaherty case the way is open for such an amendment of the Civil Service Law or for such statute as the legislature may, in its discretion, deem proper. This court ought not now to disturb what has been so widely accepted and acted upon by the courts as having been decided in that case. A contrary course would cause infinite uncertainty, if not mischief, in the administration of the law. To avoid misapprehension it is appropriate to say that we are not to be understood as questioning the soundness of our former decision.

The orders of the Special Term and Appellate Division should be reversed and the application for mandamus granted, with costs to the appellant in all courts.

Wellard Bartlett, Ch. J., Hiscock, Cuddebaok and Hogan, JJ., concur; Pound, J., concurs in result; Seabury, J., dissents.

Orders reversed, etc.