Seeley v. Franchot

The relator held the position of superintendent of repairs on section 10 of the Erie Canal. On the 20th day of December, 1906, he was dismissed from that position by orders of the state superintendent of public works. His dismissal was made without charges or a hearing; and, being an honorably discharged soldier of the War of the Rebellion, he now asks for a peremptory writ of mandamus ■ reinstating him in his former position, upon the ground that such dismissal was in violation of the provisions of section 21 of the state civil service statute (Laws 1899, p. 809, c. 370) which provides as follows:

“No person holding a position by appointment or employment in the state of New York, or in the several cities, counties, towns or villages thereof, who is an honorably discharged soldier, sailor or marine, having served as such in the Union army or navy during the War of the Rebellion, * * * shall be removed from such position or employment, except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges, and with the right of such emplqyé or appointee to a review by a writ of certiorari.”

The superintendent of public works insists that the relator’s dismissal was lawfully made, and sanctioned by the authority conferred upon him by section 3 of article 5 of the state Constitution which reads as follows:

“A superintendent of public works shall be appointed by the Governor. =: * * rj,jle superintendent of public works shall appoint not more than three assistant superintendents, whose duties shall be prescribed by him, subject to modification by the Legislature. * * * All other persons employed in the care and management of the canals, except collector of tolls and those in the department of the state engineer and surveyor, shall be appointed by the superintendent of public works and shall be subject to suspension and removal by him.”

The superintendent of public works contends that the clause of the Constitution giving him authority of “suspension and removal” of appointees in the canal department of the public service of the state can

“It was plainly intended thereby to leave to the superintendent exclusively the determination of the propriety of such appointments and the sufficiency of the qualifications possessed by proposed appointees, and to hold him responsible for the faithful exercise of his intelligence, judgment, and discretion in the performance of that duty. The broad grant of power excludes the idea that it was intended that he should be hampered', restricted, or regulated in its exercise by any extraneous authority whatever, except as might be authorized by other constitutional limitations expressly applicable thereto.” 109 N. Y. 570 , 17 N. E. 415 .

The particular question then up for decision was the right to make appointments independent of the civil service statute, but what was said and decided applied with equal force to suspensions and removals ; for the language of the Constitution giving the right of removal was quite as explicit as that giving the right of appointment. The court therefore held that under the Constitution as it was worded prior to 1894 the superintendent of public works had the right to appoint at will.

The relator in this case concedes such was the law prior to the adoption of the present Constitution, but contends that the- Constitution of 1894 has so modified and changed the powers and rights of the superintendent in that regard that he can no longer appoint or remove subordinates as he could prior to 1894. The language of the present Constitution touching the powers of the superintendent are exactly the same; but in the Constitution of 1894 is added the so-called civil service clause, reading 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 the 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.”

It is urged by the relator’s counsel that under the present Constitution, owing to this added-clause, the superintendent can no longer appoint at will, regardless of competitive tests, nor remove veterans of

A study of the civil service article of the Constitution discloses, however, that this article relates entirely to the matter of appointment to the public service. It does not assume to deal at all with the subject of suspensions or removals. It relates entirely to the matter of entrance into the service and is silent as to suspensions or dismissals from that service. It in no way provides for or ■ guaranties the continued retention of veterans or of any other class of persons in that service. It is manifest, therefore, that when the two clauses of the Constitution are read and construed together there is nothing in the civil service clause abridging or limiting the right and authority expressly given by the other clauses to the superintendent of public works to suspend and dismiss his subordinates. Any judicial construction of that clause which denies to the superintendent that right, even in the case of veterans, would render nugatory and meaningless an authority given in plain and express terms. The courts must assume that, when the people gave to the superintendent power of “suspension and removal” of his appointees, the language was employed intelligently and for a purpose; otherwise there was no occasion for inserting the words at all in the fundamental law.

There is nothing to be found in any decided case in conflict with this view. On the contrary, the cases are in harmony with it, particularly the opinion of the court in the case of People v. Angle, 109 N. Y. 564 , 17 N. E. 413 , the force of which case is superseded only by virtue of the present Constitution so far as the matter of appointments is concerned, but not as to dismissals. The law of that case, so far as dismissals by the superintendent of public works is concerned, must be deemed the law of this case; and we are constrained to hold that, owing to the peculiar wording of the state Constitution so far as it relates to the department of canals, the superintendent of public works is given an express power of suspension and removal not enjoyed by other executive heads of the state government. It follows that section 21 of the civil service statute, providing that honorably discharged soldiers and sailors shall not be discharged from the public service except for incompetency or misconduct, and only upon charges and after a hearing, is in conflict with the provisions of the Constitution so far as it relates to subordinates in the canal department, and therefore cannot operate to abridge the powers of the superintendent of public works to remove them.

Relator’s counsel cites to the court, and relies largely upon, the case of Matter of Stutzbach v. Coler, 168 N. Y. 422 , 61 N. E. 697 , to sustain his contentions in this case; but that case, on the contrary, if anything, militates against it. The Court of Appeals there holds that the civil service clause of the Constitution relates only to appointments, and not to dismissals, and that, although the Legislature cannot enact laws repugnant to its provisions, it may legislate further in the direction of protecting veterans in holding official positions if it shall deem it wise to do so. The Court of Appeals held in the Coler Case that there was nothing to sustain the contention that, in so far as the statute extended preference to veterans beyond that accorded to them by the Constitution, it was for that reason void; that, although the constitutional provision related only to appointments, and not to dismissals, nevertheless the Legislature might legislate further in the direction of protecting veterans in holding their official positions, provided such legislation is not repugnant to any express provision of the Constitution. There is nothing in that case, however, which determines the question whether the statute under discussion is repugnant to the provisions of the Constitution giving special powers of removal to the superintendent of public works. It does, on thé other hand, decide that the civil service clause of the Constitution in and of itself is no guaranty against removals.

The view we have taken of this case makes it unnecessary for the court to pass upon the other questions suggested by counsel for the respondent, wherein he urges that the position of superintendent of repairs, formerly filled by the relator, is not one of the positions protected by section 21 of the civil service.

For the reasons stated, the motion for a mandamus is denied, with $10 costs,