People ex rel. McClelland v. Roberts

— This is an application for a writ of peremptory mandamus to be diz-ected to the comptroller of the state of New York, commanding him to draw his warrant for the payment of :jthe salary of the relator as clerk to the collector of canal statistics, 'for the month of May, 1895. It appears that on the 26tb of April, 1895, the superintendent of public works issued a commission to the relator, under his hand and seal, in the words following:

“Albany, April 26th, 1895.

“By virtue of the power vested in me by section 3, article 5, of the constitution of the state of New York, I do hereby appoint J. W. McClelland of Albany, N. Y., clerk to collector of canal statistics, at Albany, N. Y. Salary $65 per month.”

The relator had passed no civil service examination for the position in question, and his name was not certified to the comptroller by the civil service commission of the state. The comptroller bases his refusal to draw his warrant upon chapter 854 of the Laws of 1883, as amended by chapter 681 of the Laws of 1894, which provides for arranging in classes clerks and employes in the public service of the state, and provides for the certification to the comptroller by the civil service commission' of the names of all officers, clerks, or other persons appointed to the public service of the state from either of said classes, and prohibits the comptroller from drawing his warrazrt for the payment of any salary or compensation to any officer, clerk, or other person in the public service who has not been so certified to him. The relator contends that the law in question is not applicable to his case, and that there is no necessity for his name being certified to the comptroller by the civil service commission of the state, because,as he alleges, under the laws and the constitution of the state the appointees of the superintendent of public works are not subject to the civil service laws, but that the power of appointment is lodged exclusively in such superintendent, untrammeled by any laws, rules, or regulations whatever.

The position taken by the parties to this pi'oceeding makes it necessary to examine not only the civil service laws of the state, but the constitution, not only as it is, but as it was prior to January 1, 1895. The questions presented are of grave importance, seriously affecting the civil service of the state, and the administration of some of the greatest and most important departments, as well as the title to office of many subordinate officers of the state, and therefore merit a careful considez-ation. In 1876 the then existing constitution was amended by creating an entirely new official, known as “a superintendent of public works,” to whom was confided the execution of all laws “relating to the repair, navigation, construction, and improvement of the canals, except .so far as such construction and improvement should be confided

“Within four months after the present session of the legislature, it shall be the duty of the governor to cause to be arranged in classes all the. several clerks or persons employed or being in the public service, for the purpose of the examination herein provided for, and he shall 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.”

Section 7 provided that:

“After the termination of eight months from the expiration of the present sesssion of the legislature, no officer or clerk shall be appointed, and no persons 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 examina- ■ tian or is shown to be specially exempted from such examination in conformity herewith."

That section was amended by chapter 681 of the Laws of 1894, which amendment provided, among other things, as follows :

“It shall be the duty of the said commission to certify to the comptroller the name of every officer, clerk or other person in the public service of the state, in either of said classes, appointed or employed therein in pursuance of law and of the rules and regulations made in pursuance of law, stating in each case the title or character of the office or employment, and the date of the commencement of service by virtue thereof; and, in like manner to certify to the comptroller, the name of each officer, clerk or other

person, in the public service of -the state, in either of the said classses, appointed or employed therein in violation of law or of the rules and regulations made in pursuance-of law ; and to certify • to the comptroller, in like manner, every change occurring in any such office or employment forthwith, on the occurrence of the change. It shall be 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 said classes, who is not so certified as having been appointed or employed in pursuance of law and of the rules and regulations made in pursuance of law.”

It will be observed that the duty of classifying the various officers and employes of the state, and of making rules and regulations providing for the examination of candidates, and other details, is devolved upon the governor of the state, and that he is to determine how far it is pi’acticable to include in any classification the subordinate places, clerks or officers in the public service of the state; that the civil service commission, so called, is merely to aid him as he may request, in the discharge of his duties. He is, in law and in fact, the responsible head of the civil service of the state. He is not only to see that the laws are executed, but he is, in addition, within the limitations of the constitution and the acts of the legislature, to make the laws — that is, the rules and regulations — by which the civil service of the state is to be governed. Pursuant to said act of 1883, the governor of the state promulgated rules and regulations.for the government of theciv.il service, and a classification of subordinate places, clerks and officers, included in the class subject to competitive examination, were the subordinates of the superintendent of public works and of the superintendent of state prisons, and among others, clerkships of the kind to which the relator claims to have been appointed. The power of the legislature to make laws, and of the governor and civil service-commission to make' rules and regulations, which should subject appointees of the superintendent of public works to examinations, and to'limit his appointments to those who should pass such examinations and be placed upon the eligible list of the civil service of the state, was challenged in the case of People ex rel. Killeen v. Angle, 109 N. Y. 464 ; 16 St. Rep. 647 . It was there held that it was the intention of the constitution to confer upon the superintendent of public works the power to select and appoint his subordinates, “subject only to his sense of duty and the obligations of his oath of office,” and that it plainly intended “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 that the provisions of chapter 354 of the Laws of 1883, and of the rules and regulations adopted by the governor and civil service com mis-' sion, were limitations and restrictions upon such power of appointment by the superintendent, which the legislature had no power to impose; and that, therefore, his subordinates “did not. come under the operation of the act creating the civil service commission.” The principle pi that decision applied as well to subordi

The new constitution, adopted in 1894, contains the same provision as to the appointment of subordinates by the superintendent of public works as did the old constitution. See article 5, § 3. It also contains, however, an entirely new section, being section 9 of article 5, 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 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.”

It is contended by the relator that, the same language being used in the present constitution as in the old, the same interpretation should be given; while on behalf of the comptroller it is contended that the power of appointment given by section 3 to the superintendent of public works is limited by the provisions of section 9 of the same article. This conflict makes necessary both an interpretation and a construction of the constitution as it now is. Some discussion has been indulged in as to whether the present constitution is a new constitution or an amended one. To me it seems to be a matter of little consequence whether we consider the present constitution as an entirely new instrument, coming into existence January 1, 1895, or whether we consider it as an amended constitution. In either event, the same rules of construction will govern ; for it has been held “ that an amended constitution must be read as a whole, and as if every part had been adopted at the same time as one law ; and effect must be given to every part of it, each clause explained and qualified by every other part.” People ex rel. Killeen v. Angle, 109 N. Y. 564 -575 ; 16 St. Rep. 647 . The first rule in interpreting and construing a constitution is to give to it the effect and meaning intended by its framers, and by the people who adopted it; and the first rule for ascertaining what that intent and meaning was is that it is to be gathered, if possible, from the plain and ordinary meaning of the words used. “In the construction of constitutional provisions, the language used, if plain and precise, should be given its full effect, and we are not concerned with the wisdom of their insertion. As adopted by the

Let us, then, turn to the language of the constitution : “ Appointments and promotions in the civil service of the state, and of all of the civil divisions thereof, including cities and villages, shall be made," etc. This language is general, and in itself contains no limitations or restrictions, and is apt language to cover all appointments under the state government, without any exception, and “ we are not at liberty to presume that the framers of the constitution and the people who adopted it, did not understand the force of language.” People v. Purdy, 2 Hill, 31 . Standing alone, there would be no question but that, under the language of section-9, art. 5, just quoted, were included appointments of the kind in question. But we must not lose sight of the rule of construction that all parts of a constitution must be construed together. Section 3 of article 5 confers upon the superintendent of public works the power of appointing his subordinates, and, as we have seen, the court of last resort, in construing the same language in the old constitution, held that that was an untrammeled and unrestricted power. The relator has invoked the rule that “ where a clause of a constitution, which has received a settled judicial construction, is adopted in the same words by the framers of another constitution, it will be presumed that the construction thereof was likewise adopted.” Black, Const. Law, 68. Thus these two sections are brought into apparent conflict, and one of the conditions arises mentioned in the case of People v. Bathbone, where "we are compelled to resort to construction ; and, when we are, the same rules apply as in construing a statute. “ The intent of the lawmakers is to be sought for. And when it is discovered it is to prevail over the literal meaning of the words of any part of the law. And its intent is to be discovered, not alone by considering the words of any part, but by ascertaining the general purposes of the whole, and. by consideringtheevil which existed calling for a new enactment, and the remedy which was sought to be applied.” People v. Potter, 47 N. Y. 375 .

We have examined somewhat the history of the law as it existed prior to January 1, 1895, when the new constitution went into effect. It is to be presumed that in framing the constitution the convention had in view the then existing laws.” People v. Rathbone, 145 N. Y. 435 -438; 65 St. Rep. 404 . Under the old constitution, subordinate clerks, officers, and employes in the civil service of the state were appointed to and held their positions under radically different laws some under a law providing for appointments based upon fitness and merit, to be ascertained by examination, while the subordinates in the great department of public works and in the state prisons of the state, embracing a large portion of all the appointees in the civil service of the state, where wholly exempt from such test. This anomalous condition of the public service under the law of course was known to the framers of the constitution. We must also assume that they knew that the legislature had passed a law with the intention of making all subordinate clerks, officers, and employes in the civil service subject to civil service regulations; that it was the apparent intent of such law to include, and its language was sufficient to include, subordinates of the superintendent of public works and to state prisons; that the governor of the state so understood the intent of that law, and c’assified the subordinates and appointees in such departments; and that the court of last resort held that under the constitution the legislature had no power to subject such subordinates and appointees to any such classification, because the same was a limitation upon and a restriction of the power of appointment conferred by the constitution upon the superintendents of such departments. Bear-

“Appointments and promotions in the civil service of the state and of cities shall be made according to merit and fitness to be ascertained by examination, which so far as practicable, shall be competitive. Laws shall be made to provide, for the enforcement of this section-”

The gentleman having it more particularly in charge for the committee, Mr. Gilbert, in opening the debate upon the question of its adoption, after discussing the principle of appointments to and promotions in the civil service upon merit to be ascertained by examination, said:

“This principle, as the constitution now stands, cannot, be applied to public works and to state prisons. The court of appeals has so held in respect to one of those departments, and the principle which applies to one will apply with equal force to the other. S.o that the committee, and a, very large number of petitioners of high character, * * * all concur in this: that we want the

And when the subject was again under discussion, the same gentleman stated:

“The court of appeals has held that appointment cannot be made in the prison service and in the public works service under the rules of the civil service. The case came up as to one of them, but the same reason that applied to that one obtains as to the others. So that I may say that under the law as it now stands, and under the constitution as it now exists, the civil service rules cannot be applied to the prison service or to the public works service. I think that is reason enough for the passage of the main proposition.” Pages 2552, 2553.

Mr. Root said:

“As the matter stands to day, the court of last resort has ruled that the principle of civil service cannot be applied to the important positions in the state prisons and public works department, and the effect of this amendment will be to extend this reform to state prisons and canals.” Page 2559.

Mr. Lauterbach said:

“In behalf of regularity and order in the appointment of state prison official and others as to whom our attention was called during the process of the investigation by the charities committee, I think it would be a serious error on the part of this convention if, owing to any flippant spirit in which 'the matter has been considered, or an account of some local interest that might be prejudiced, we go to the people from this convention, while our party has announced itself in favor of civil service reform, that in this convention, upon a trivial excuse that was presented, we voted it down.” Page 2561.

Much discussion was had in the convention over the proposition to amend the section as presented to the convention so as to extend its provisions to all the civil divisions of the state, “ including cities and villages,” and over that portion thereof which was finally adopted, referring to honorably discharged soldiers and sailors ; but nowhere do I find that any opposition was made to extending the operations of the civil service law to the canals or public works department and the state prisons of the state, or any answer made to the arguments of Mr. Gilbert or Mr. Root in favor of adopting the proposed section in order that such department might be subjected to the operations of the civil service laws. After the convention had adopted the constitution as a whole, it adopted and issued an address to the people, explaining its work, and the different new provisions of the proposed constitution. Among other things, that address contained the following :

“(10) We have declared in the constitution the principle of civil service reform that appointments and promotions are to be based upon merit, and ascertained, so far as practicable by competitive examinations. We have sought bv this to secure not merely the advantage derived from declaring the principles, but the practical

I therefore take it that the convention had, as to such departments, “a common intent,” and intended, by adopting the section in question, to bring the subordinates of the superintendent of public works and of the superintendent of state prisons within the operation of the civil service law, and by the language used intended to, and supposed they had, modified the effect of the language used in sections 3 and 4 of article 5, in reference to appointments to be made by the supertintendent of public works and of state prisons, and had nullified the effect of the decision in the case of People ex rel. Killeen v. Angle. It seems to me, therefore, that in reading section 3 in connection with section 9, and considering the language used, the history and condition of the law as it was under the old constitution, taken in connection with the proceedings in constitutional convention, that it was the plain intent of the framers of the constitution, and of the people who adopted it, that all appointments in civil service of the state should be made according to merit, to be ascertained, so far as practicable, by examination ; and that they intended to extend that principle so as to include the subordinates and appointees of the superintendents of public works and of state prisons; and that the power of appointment conferred upon the superintendent of public works by section 3 was intended to be subject to the principles and limitations contained in section 9.

The relator contends, however, that section 9 is not self-executing, and that there has been no legislation to enforce it; that the section itself in terms recognizes the fact that legislation is needed to put it in force, by the clause, “laws shall be made to provide for the enforcement of this section; ” and that, until new laws are made to enforce its provisions, the section in question is of no force and effect, and that the appointments are to be made as before its adoption. The same contention was in Re Sweeley, 12 Misc. Rep. 174 ; 67 St. Rep. 257 (affirmed in the court of appeals not yet reported), and it was there held that the pre-existing civil service laws were continued, and that then relator was subject to them. This case perhaps presents the question in a little different aspect. There it was held that the law under which the then relator sought appointment had been abrogated by the new constitution, and that there being other laws upon the statute book not in conflict with the new constitution, which were applicable to the relator’s case, no new legislation was necessary. It is said that such a construction renders unnecessary and meaningless the clause, “laws shall be made to provide for the enforcement of this section.” I think that is a mistaken view, for full force and effect can be given to that clause without holding that it is necessary to re-enact all the civil service laws of the state. When we consider, as before stated that the framers of the constitution are presumed to have known the laws of the state, and if they did they must have known that they did not extend to “ all the civil divisions thereof, in-

“Such acts of the legislature of this state as are now in force shall be continued the law of this state, subject to such alterations as the legislature shall make concerning the same, but all parts of the common law and such of the said acts or parts thereof, as are repugnant to this constitution, are hereby abrogated.”

And in construing the constitution in connection with pre-existing laws “we must keep in mind that the constitution was not framed for a people entering into a political society for the first time, but for a community already organized, furnished with legal and political institutions, adapted to all, or nearly all the purposes of civil government; ” and it was not intended to abolish these institutions, except so far as they were repugnant to the constitution then framed. People v. Draper, 15 N. Y. 532 . The members of the constitutional convention being'assumed to know the nature and effect of then existing laws, and having provided for their continuance where in harmony with the new constitution, we must also assume that they depended upon them to carry into effect the details of the constitution, being supplemented by such.new legislation as should be necessary. The civil service laws of the state are in harmony with the present constitution. They are, therefore, of the same force and effect as if they had been passed after the present constitution took effect; and can be used, as far as they go, to enforce its provisions.

It is also claimed in behalf of the relator that assuming that it was intended by section 9 to bring the appointees of the superintendent of public works within the provisions of the civil service laws, and admitting that the civil service laws are continued in force, there is still necessity for legislation to bring him within their provisions. To support this contention he relies upon that portion of section 9 in question which says that the merit and fitness of appointees “shall be ascertained, so far as practicable, by examination; ” and his contention is that it is necessary for the legislature to determine whether it is practicable to ascertain the merit and fitness of appointees under the superintendent of public works by examination, and that, until such determination is made there is no means of enforcing as to that department the pinciples of section 9. Ido not think this contention can prevail. While probably the legislature has the power, under this section, to determine what officers and appointees it is practicable to classify under the civil service, and in what cases it is practicable to ascertain the fitness and merits of candidates for positions, by examination, still I do not think that it is necessary for the legislature' to act in that respect in order to enforce the application of section

Motion for a mandamus denied, not as a matter of discretion, •but as a matter of lhw, without costs.