Brown v. Duane

This application was founded upon a verified petition in which the appellant alleges that he was an honorably discharged Union soldier; that he was a practical mason; and that on or about the 18th day of July, 1888, he was appointed to the position of inspector of masonry upon the new Croton Aqueduct, having prior to the appointment passed the civil service examination ; that after such appointment he entered upon the duties of such inspector, and has ever since performed such duties, and is now engaged therein; that in July, 1889, the aqueduct commissioners passed resolutions that the office or grade of superintendent of dam construction be created, to rank next above inspectors of masonry, and that it should be the duty of such superintendent to superintend the construction of all dams subject to the order and instruction of the chief engineer, etc.; and such resolution requested the chief engineer to prepare rules for the guidance and instruction of the superintendents of dams, and requested the civil service board to make provision for the examination of candidates for appointment or promotion to the grade named, and further provided that before any person should be appointed as superintendent he should pass a special examination under the direction of the chief engineer of the commission in addition to the examination of the civil service board; that pursuant to said resolution, on notification from the commissioners, twenty-nine persons were permitted to appear before the civil service board at an examination held at the request of the aqueduct commissioners; that only five of such persons were honorably discharged Union soldiers holding office or employment under said commissioners and the petitioner was not one of the persons thus notified and examined ; that eleven honorably discharged soldiers and sailors, including the appellant, who were then in the employ of the commissioners, were excluded from such examination; that such examination was not held in accordance with the rules of the civil service board, and that no one except persons authorized by the commissioners were allowed to be examined; that the commissioners are about to appoint a certain number of superintendents of construction of dams and thát all the work upon the construction of the aqueduct, except the construction of dams and reservoirs, is nearly completed and will be completed in a very short time; and

The answer bf the commissioners alleges that thirty-two inspectors had been notified and permitted to be examined before the civil service board for promotion to the grade of superintendent of dams, and they aver that all of such inspectors were then holding office under the commission and not discharged for misconduct, and they admit that only those who were certified, were examined by the civil service board. They deny the failure to comply with the rules of the civil service board; and they admit that the work upon the construction of the aqueduct except the construction of dams and reservoirs is nearly completed, and aver that the duties of superintendents of construction of dams require more experience and knowledge of all that pertains to hydraulic masonry than is required to be possessed by inspectors of masonry.

It further appears that the appellant was not certified for examination and never applied to the board of aqueduct commissioners for certification for examination by the civil service board; nor has the appellant ever applied to the commissioners for the position of superintendent of construction of dams, and no official action has been taken with respect to the abolition of the force of inspectors of masonry on the new Croton aqueduct.

The affidavit of the secretary of the Civil Service Board is to the effect that the examination was held in accordance with the rules of the board in relation to promotion.

Upon this state of facts the motion of the appellant was denied, and from the order thereupon entered this appeal is taken.

It appears from the facts upon this application that the appellant is asking for a mandamus against the Board of Aqueduct Commissioners in anticipation of the cessation of the work in which he is at present employed, and that in view of such cessation he desires to be appointed to another position.

Now it has been determined in Re McGuire, 50 Hun, 203 ; 19 N. Y. State Rep., 431, that the provisions of the civil service law do not apply to promotions, and that they only apply to original appointments. The appellant therefore being in the employ of the commission, the requirements of the civil service law have been complied with; and although it is claimed by the appellant that such employment will soon cease, until that -event happens it is clear that he has no standing in court. The office of a mandamus is not to redress an anticipated evil or wrong, but can be only invoked to remedy a wrong which has been suffered.

This is a principle which has been repeatedly asserted in applications for mandamus and in actions brought to reinstate parties in various organizations or to prevent a threatened expulsion from such organization, in which cases it has been repeatedly held that until the wrong has been suffered the court cannot intervene.

The court below, therefore, if for no other reason, was right in denying the application of the appellant because he was in the employment of the Croton Aqueduct Board at the time of the application and was not entitled as matter of right, under any circumstances, to be appointed to another position at his will.

It might not be necessary to say anything further upon this point in the disposition of this case were it not for the claim made by the appellant that the court should take judicial notice that the Croton Aqueduct Board have since the initiation of these proceedings abolished the office of inspector of masonry, there being no further duties for officers of that character to perform.

We are not aware that the proceedings of the Croton Aqueduct Board are of that dignity which authorizes the court to take judicial notice thereof. Consequently in the disposition of this application that fact cannot be considered by the court.

But even if it were it would make no difference in the position of the appellant. By § 40 of chap. 490 of the Law's of 1883, it was provided as follows:

“ No person shall be appointed by the commissioners as inspector or superintendent who shall not be certified by at least three members of the commissioners to be competent and fit for the duties of the position for which he is an applicant, and experienced in the subject matter of the employment.”

There is no pretension that there has been a compliance with this provision of the law. But it is urged upon the part of the appellant that this provision has been superseded by the civil service act, which provides that in every public department and upon all public works in the state of New York and all cities, towns and villages thereof, and also in non-competitive examinations under the civil service laws, rules and regulations of the same, wherever they apply, honorably discharged Union soldiers and sailors shall be preferred for appointment or employment; and that thus the provisions of the act above referred to have been repealed.

It does not seem to us that this position can be maintained. The act first referred to was a special act intended to provide for a particular work in respect to which the legislative regulations were particular and precise.

It is a familiar rule of construction that where a general act conflicts with a special act, the special act is not to be deemed repealed by implication. Applying this rule to the statutes in question, it will be clear that the provisions of the Croton aqueduct act in regard to the appointment of inspectors and superintendents cannot be deemed to be repealed by the civil service act.

There is no such intention manifested in the civil service act that in appointments of this character, which were considered of such importance as to require at least three members of the commission to certify to the competency of the applicant, that such safeguards should be repealed by its general language.

They are required to certify that the applicant is competent and fit for the duties of the office and experienced in the subject matter of the employment, and the responsibility is thus placed upon them for the quality of appointees of this class.

The statute is peculiar in its language in relation to these particular appointees, the responsibility of the position being thereby expressly recognized, and the necessity of more than ordinary care in making appointments being manifested.

It seems to us it would be straining the view of a repeal by implication to assume that after the legislature had established such safeguards against the" abuse of the appointing power in reference to appointments of this important character, it should have intended to place these appointments upon the same level as all others to which the civil service act could apply.

Upon the whole case, therefore, it seems to us that the application for mandamus was properly denied and that the order should be affirmed, with costs.

Daniels, J., concurs.