97 N.Y.S. 218 | N.Y. App. Div. | 1906
By section 9 of article 5 of the Constitution it is provided' that appointments and promotions in the civil service of the State and of- all civil divisions thereof shall be made according to merit and fitness, to be ascertained so far as practicable by examinations . The Civil Service Law (Laws of 1899, chap. 370, as amd. by Laws of 1902, chap. 270) provides for a division of the civil service into unclassified and classified service. Section 10 of said statute (as amd. by Laws of 1900, chap. 675) provides for the appointment of municipal civil service commissioners to prescribe, amend and ' enforce rules for the classified service in cities. Section 11 provides for four classes in the classified service : First, the exempt ■ class ; ' second, the competitive class ; third, the npn-competitive class, and' in cities the fourth, the labor class. By section 17 it is provided that the labor class in cities shall include unskilled laborers and that vacancies in said class “ shall be filled by appointment from lists of applicants registered by the municipal. commissions. Preference in employment from such lists shall be given according to date of application,” and it is further provided : “ The commissions shall require an applicant for registration for the labor service to furnish such evidence or pass such examination as they may deem proper with 'respect to his age, residence, physical condi- . tion, ability to labor, skill, capacity and experience in the trade or employment for which he applies.” Section 20 .(as amd. by Laws of 1902, chap. 270) provides for a preference in appointment and promotion to all competitive and' non-competitive positions to veterans of the Civil war. It is therein also provided: “ A refusal to allow the preference provided for in this and the next succeeding section to any honorably discharged soldier, sailor or marine or a reduction of his compensation (intended to bring about his resignation) shall be deemed a misdemeanor, and such honorably discharged. soldier, sailor or marine shall have a right of action therefor in any court of competent jurisdiction for damages and also a remedy by mandamus for righting the wrong.”
Pursuant to- the authority of the statute the municipal civil service commission of the city of Schenectady, duly appointed, promulgated certain rules. Among "these rule 20 provides that blank forms for application will be furnished 'by the municipal civil service
From the statute and rules above recited it will be seen that ■this defendant in making appointment of laborers upon the streets was required to ask from the municipal civil service commission a list of eligibles. From that list he was required to make appointment according to priority thereupon.. It is not very material whether this formal application was made to the civil service commission or whether the formal list was given to this defendant. He was required to obtain such before he made any appointments. That the list was before him-in making the appointments is evidenced by the fact that no laborer could receive pay until he was certified by the secretary o-f the commission as béing upon this list. This plaintiff’s name, then, appearing second upon the list for 1904, the
The defense, urged by the defendant in this action and upon which this complaint has been dismissed is that this plaintiff was not properly upon the eligible list as no examination. was made as to • his fitness for the place and as to his habits of industry and ■ sobriety. , The secretary of the commission swore that he was instructed, whether by the commission or its chairman he did not know, to-place upon the lists the names, of applicants'in the order in which the applications were made, where the application was signed by the superintendent of streets;'that this indorsement of ' the application by.the superintendent of streets was all the evidence that was required of the qualifications of the applicant for position upon that list. The learned trial judge has held that this indorsement of the superintendent of streets is insufficient both under the ( statute and under the rules adopted by the commission to entitle an applicant to' be put upon the list; that it amounts to a delegation of power to the-superintendept of streets to. pass upon the, qualifications of an applicant, which power cannot be delegated by the- commission. We are not prepared to assent to this interpretation of the statute and of the rules of the commission. The statute in section 9 provides that for employment as laborer in the State service no examination or registration shall be required. Section ■10 (as amd. by Laws of 1900, chap. 675) provides for appointments in the city service. ’ The mayor of each city is required by that section to appoint suitable persons “ to prescribe, amend and enforce rules for the classification of the offices, places and employments in the. classified, service of such city, and for appointments rmd promotions therein and examinations therefor; and for the registration and selection of laborers for employment therein, ■not inconsistent with the Constitution and the provisions of this act.” The reading of this section would seem to indicate that no special examination is required for the labor service. Both the.statute and"
• the rules require applicants; for registration for the labor service tp
But whether or not this applicant had passed the examination which the law requires, he had conformed to the requirements of the civil service commission and had been actually accepted by them and placed upon the list. The defendant himself made appointments from that list, and it does not lie with hint now to say that the list was improperly made-up, to excuse him from conforming to the requirement of the law that he give the preferences which are indicated to him upon the list furnished. That this list is binding upon defendant would seem to be held in People ex rel. Hamilton v. Stratton (79 App. Div. 149) ; People ex rel. Beck v. Board of Aldermen (18 Misc. Rep. 533) ; People ex rel. Van Petten v. Cobb (13 App. Div. 56). In the Van Petten case it was also held: “ The fact that on his examination the commission chose to rely upon the certificate of the applicant’s physician, and not upon its own examination, as to his physical condition, has no bearing upon the question.” In People ex rel. Mullen v. Sheffield (24 App. Div. 217) Mr. Justice Ingraham, of the first department, in writing of a civil service act says: “ Under the Civil Service Law the appointing
The provision of the statute under which this action was- brought was intended to prevent just such discriminations as seem 'here to-have been made. Those intrusted with appointive power, in service' Controlled by the- Civil Service Law, disregard this law at theii" peril. With the extent of plaintiff’s damages we aré not here concerned. If the plaintiff is entitled to any damage his complaint-should not have been dismissed. ■
The- judgment should, therefore, be reversed and a new trial 'granted, with costs to appellant to abide the event.
," All concurred,
Judgment reversed and new trial granted, with costs to appellant to abide event.