| N.Y. App. Div. | Mar 8, 1898
Lead Opinion
By the provisions of chapter 354, Laws 1883, the governor was authorized to appoint three civil service commissioners, who were authorized to aid the governor in promulgating rules for carrying the act into effect. The statute provides for open, competitive examinations for testing the fitness of applicants for the public service; that appointments should be made from those graded highest as the result of such competitive examinations; that “there shall be a period of probation before an absolute appointment or employment aforesaid.” In pursuance of, and within the power conferred by, the statute in question, the governor promulgated the following-rule :
“Every original appointment or employment in the civil service shall be for a probationary term of three months, at the end of which time, if the conduct and capacity of the person appointed or employed shall have been found satisfactory, the petitioner shall he absolutely appointed or employed, but otherwise his appointment shall cease.”
The appointment of relator for the probationary period of three months was therefore authorized. His term continued for such period, and ended with its expiration. If he was competent, and had not been guilty of misconduct, at the expiration of the three months he was undoubtedly legally entitled to a reappointment. Whether he was or was not competent was for the defendant to decide. The act provides:
“Notice shall be given by the appointing- power to said commission of the person selected for appointment or employment from among those who have been examined, of the place of residence of such persons, of the rejection of any such persons after probation,” etc. Laws 1883, c. 354, § 2, subd. 8.
This provision evidently contemplates that the appointing- power shall have the power to reject an applicant for an office after probation. Hence the probationary appointment of the relator for three months was authorized by the act of 1883. At the end of that period, the defendant had the power to decline to reappoint him, if not qualified for the position, and to pass on the question of such qualification.
The question in the case is whether the provisions of chapter 821, Laws 189G, which provides that no honorably discharged Union soldier
On the hearing of the motion for a peremptory mandamus below,, the defendant read an affidavit which, if true, showed that the relator was incompetent for the position of special agent, and that the-
We are of opinion that the relator has not been removed from a position or employment, within the meaning of chapter 821, Laws 1896, and hence that the order should be affirmed, with costs. All concur, except HERRICK, J., dissenting.
Dissenting Opinion
I am unable to concur either in the reasoning or result of Mr. Justice PUTNAM’S and Mr. Justice LANDON’S opinions. Section 9 of article 5 of the constitution provides that appointments in the civil service of the state, and in the different subdivisions thereof, shall be made according to merit and fitness, to be ascertained, as far as practicable, by competitive examinations; and it further provides:
“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 this state, shall be entitled to preference in appointment and promotion without regard to their standing on any list from which such promotions or appointments may be made.”
The court of appeals has held that:
*448 “It is clear that this 'section of the constitution, read according to its letter .and spirit, contemplates that in all examinations, competitive or noncompetitive, the veterans of the Oivil War have no preference over other citizens of the state; but when, as the result of those examinations, a list is made up from which appointments and promotions can be made, consisting of those whose merit and fitness have been duly ascertained, then the veteran is entitled to preference, without regard to his standing on that list.” In re Keymer, 148 N.Y. 219" court="NY" date_filed="1896-01-21" href="https://app.midpage.ai/document/matter-of-keymer-3593898?utm_source=webapp" opinion_id="3593898">148 N. Y. 219-225, 42 N. E. 667.
Prior to the adoption of this provision of the constitution, various laws had been passed providing "for preference to veterans. None of these laws, however, prevented veterans who had once been appointed from being summarily removed. To remedy that defect in the law, the then existing statute was amended by chapter 716 of the Laws of 1894, which provided that removals could not be made except for incompetency and conduct inconsistent with the position held by the employé or appointee. It was held, however, that under this law it was left to the appointing power to determine whether the facts existed which authorized a removal, subject to responsibility for any willful or perverse action; and no notice or opportunity to be heard was required to be given to the person whose removal was contemplated, before the power could be exercised. People v. Morton, 148 N. Y. 15.6, 42 N.E. 538" court="NY" date_filed="1896-01-07" href="https://app.midpage.ai/document/people-ex-rel-fonda-v--morton-3593245?utm_source=webapp" opinion_id="3593245">42 N. E. 538. The same was done in this case, except in that case the appointment was not a so-called probationary one. To remedy the defect in the statute which was revealed by the decision of the case of People v. Morton, the statute in relation to veterans was further amended by chapter 821 of the Laws of 1896, which provided that no veteran holding a position by appointment or employment in the state of New York, or in any of the subdivisions thereof, should be removed from such position or employment “except for incompetency or misconduct shown, after a hearing upon due notice, upon the charge made.” At the time the relator was removed from office, the constitution provided that veterans who had passed a civil service examination should be given a preference in employment or appointment, and the statute provided that one holding a position by employment or appointment could not be removed excepting upon charges, and after notice of such charges and opportunity to be heard thereon. It is to be presumed that the framers of the constitution and the people who adopted it were in earnest in including this provision in reference to veterans of the late Oivil War, and intended that it should be complied with; and it is presumed that a like intent moved the legislature in the passage of a statute which requires notice and an opportunity to be heard before such 'a person shall be removed from his employment or appointment; that neither the constitutional nor statutory provisions were intended to be mere empty sentiments, sounding in patriotism and gratitude, but meaning nothing, but were intended to enforce a practical and substantial recognition of the loyal services of those who preserved the government from destruction; and both the constitution and the statute should be interpreted and construed to effectuate that intent. Neither the officers, whose duty it is to execute the laws, nor the courts, whose duty it is to interpret them, should be acute to discover ways and means whereby the letter of the constitution and the statute may be ob
The reason given by the defendant for not giving the relator notice is that he was never appointed. Having passed his competitive examination, it was the defendant’s duty, under the constitution, to appoint him. The appointment he did give him will be presumed to have been made pursuant to the constitution, and, holding a position by virtue of such appointment, he can only be removed therefrom pursuant to the statute; and the defendant cannot be permitted to assert his disobedience of the constitution as a reason why he is not ■ bound by the requirements of the statute. The preference given by the constitution is an absolute preference to employment or appointment,—an absolute appointment or employment, not a conditional or probationary one. The-only limitation is that the veteran shall have passed a competitive examination for merit and fitness. That is the only examination—the only test—required. The legislature has no power to add to that requirement of the constitution, and, having complied with it, the veteran is entitled to be employed or appointed. Chapter 821 of the Laws of 1896 provides for the manner of revoking or terminating such appointment or employment. The result of his civil service examination has presumptively shown his merit and fitness, and secured him his employment or appointment; and, before he can be removed, it must be by his own misconduct, or by showing by actual demonstration that the result of his examination was incorrect or misleading, and that he is in truth unfit and incompetent; and upon those questions he is entitled to be heard.
If the practice indulged in in this case is to be upheld, then the appointment of a veteran who has passed his civil service examination can be prevented, and no preference in fact given to him; or, if it is held that he has had his preference under the constitution by this probationary appointment, then he has been removed from the position he acquired by virtue of the. provisions of the constitution, without notice and without a hearing as the statute provides, and thus a way is pointed out by which a veteran can be removed from the civil service list without receiving any appointment. If the probationary appointment, so called, is not a final appointment, which entitles the person appointed to hold his position unless removed upon charges, in the manner pointed out by the statute, then such final appointment is not an appointment made according to merit and fitness ascertained by competitive examinations, as the constitution requires, but is one resulting from his conduct during his probationary term, such conduct being a sort of examination, necessarily noncompetitive, and therefore not in accordance with the constitution. Then, too, this latter examination is made and the result passed upon by the appointing officer.
The court of appeals, in answer to the argument that, in counties, towms, and villages where no examinations have been provided or provisions made for carrying the constitution into effect, each officer
It is claimed, however, that the relator, by accepting the appointment tendered him, waived Ms right, if he had any, to an absolute appointment, because it is said any statutory or even constitutional right can be waived. I do not think that contention can prevail. A waiver, to be effectual, must be intentional; must be made with full knowledge of the rights waived, and with full knowledge that such rights are being waived. And no element of coercion must enter into it. If the last is present, and either or both of the others are absent, the waiver is not effectual. There are cases where the acts of the parties, although without knowledge of their rights, will in law constitute a waiver, as when the law makes such acts a waiver, or when the other party will be or has been placed in a disadvantageous position through such; action. But the general rule as to waiver is as I have stated. There can be no claim here that this case comes within any of the exceptions to the general rule. There can be no pretense here that the relator intended to waive any of his rights under the constitution or the statute, or that he knew he was doing so. Can we say that the relator knew the full measure of his rights, and knew what he was waiving? This court has been embarrassed in determining what they are. How can we say that he knew and waived them? Can we say that the element of coercion was lacking here? The applicant for employment is not upon an equal footing with the employer. He is seeking position or employment. He recognizes he is largely at the mercy of the one appointing or employing, and that a refusal to take what is tendered may and probably will result in depriving him of any employment or position. What could the relator do in this case but accept what was offered to .him, go to work, and rely upon the law afterwards to protect him in the full measure of his rights?
To recapitulate, the naked facts of the case are that the relator, an honorably discharged soldier, who served as such during the war of the Rebellion, passed a competitive examination; that, as a result of such examination, he received an appointment in the civil service of the state. Call it whatever kind of appointment you please; it was an appointment, and, pursuant to it, he held a salaried position in the state service. The statute (section 1, c. 821, Laws 1896) provides that no such person “holding a position by appointment or em
The order should be reversed, and the application of the relator granted.
Concurrence Opinion
I concur in the result. The only appointment which the relator received was a probationary one of three months. As that expired by its owm limitation, he was not removed from office, and therefore cannot invoke chapter 821, Laws 1896, which secures him from arbitrary removal during the term for which he was appointed. All he can complain of is that he was not at the end of the probationary appointment absolutely appointed. The statute says that, to entitle him to such absolute appointment, his conduct and capacity “shall have been found satisfactory.” The relator has not shown that Ms conduct and capacity have been found satisfactory, but is confronted with the defendant’s finding the other way. The relator, therefore, has not shown Ms clear legal right to an absolute appointment. But I think it was for the appointing power to pass upon his conduct and capacity during the probationary period, for the reason that, if the defendant had found them satisfactory, it was his duty to appoint him absolutely, and this power for the purpose of absolute appointment implies the power to find either way. Such finding was in its nature a judicial act, and cannot be reviewed upon mandamus.