191 N.E. 862 | NY | 1934
Lead Opinion
The petitioner-respondent is an interpreter in the Municipal Court of the City of New York. In February, 1928, a promotion examination was held by the appellant Municipal Civil Service Commission of the city for the position of assistant clerk in the Municipal Court. As a result of the examination, an eligible list of twenty names was established on March 19, 1928, including the name of the petitioner. The time for appointment from that list expired prior to the commencement of this proceeding so that the rights of the petitioner are confined to such rights as he has as a private citizen and not by reason of the fact that he was at one time upon an eligible list. The proceeding was instituted for a peremptory mandamus order, directing "that the respondent the State Civil Service Commission pursuant to the provisions of Section
The respondent State Civil Service Commission of the State of New York answered, alleging that for a period of over eleven years, or from December, 1921, respondent State Civil Service Commission of the State of New York held and voted that it is possible and practicable to fill *135 the position of assistant clerk in the Municipal Court of the City of New York through competitive examinations and that such position may be and should be in the competitive class and not in the exempt class of the classified civil service and that in view of such repeated rulings and various decisions of the courts, it did not oppose the motion "but submits this matter to this court and asks for the instructions, directions and orders of this court in the premises which, of course, will be promptly and willingly obeyed."
The Municipal Civil Service Commission of the City of New York answered, alleging that for more than thirty years past there have been duly classified in the exempt class under the rules of the Municipal Civil Service Commission of the City of New York the forty-eight positions in question, and denying the right of the petitioner to an order compelling an unanimous vote on the part of the State Civil Service Commission to amend the rules of the Municipal Civil Service Commission by striking from the exempt classification the said forty-eight positions.
A hearing was held at Special Term, which resulted in an order denying petitioner's motion. The justice at Special Term handed down an opinion (
The Appellate Division reversed the order, on the law, denying the motion for a peremptory order of mandamus and ordered that the State Civil Service Commission "forthwith classify forty-eight (48) positions of assistant clerk in the Municipal Court of the City of New York in the competitive class of the classified civil service," and further ordered that the Municipal Civil Service Commission "forthwith cause to be held competitive examinations as provided by the Civil Service Law to fill vacancies in said positions of assistant clerk in the Municipal Court of the City of New York as hereafter vacancies occur."
It is apparent that a majority of the members of the State Civil Service Commission believe that the positions in question should not be classified as exempt. The Attorney-General has ruled that the positions in question are municipal and not State positions. (Opinions of Attorney-General, 1927, p. 338.)
There seems to be no court decision on the subject. As municipal positions their classification is under the jurisdiction of the Municipal Civil Service Commission except that the State Civil Service Commission may, by unanimous vote, amend the rules of the Municipal Civil Service Commission. (Civil Service Law; Cons. Laws, ch. 7, § 11, subd. 7.)
If the matter of amending rules of a municipal commission involves the exercise of discretion on the part of the State Commission, then under the decisions the court should not substitute its discretion for that of the State Civil Service Commission.
We are confronted with the question of whether amending the rules of a municipal commission involves the exercise of a reasonable discretion on the part of the State Commission. The Commission has voted that it is practicable to classify these particular positions as competitive. Such a vote is advisory only. It might or might not be acted upon by the Municipal Commission. Not having *137 been so acted upon by the Municipal Commission by putting these positions into the competitive class, can it be said that there is no discretion involved in the matter of determining whether to force such action on the part of the Municipal Commission by amending its rules?
If such action is purely administrative, then the court may act provided the State Commission arbitrarily refuses to take such administrative action, but here there clearly is no duty imposed upon the State Commission by law or otherwise to amend the rules of a Municipal Commission in one respect or another. It may, by unanimous vote, take such action. Whether to do it or not, clearly involves the exercise of a reasonable discretion.
The distinction between what acts are discretionary and what acts are not is well illustrated in Matter of Ottinger v.State Civil Service Comm. (
"Our ruling does not go beyond the necessities of the case before us. We do not attempt to say how the positions in controversy shall be classified by the Commission when classification becomes necessary. Very likely many, if not all, will be taken out of the competitive class, or perhaps exempted altogether."
No clear legal right exists to the relief prayed for, as a matter of discretion on the part of the State Civil Service Commission is involved, and this court may not properly interfere with the exercise of that discretion.
The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division.
Concurrence Opinion
I concur with Judge HUBBS for reversal. Section 13 of the Civil Service Law designates the exempt class. After specifying one deputy clerk of each court, one clerk of each elective judicial officer, subdivision 4 also permits the Commission to exempt any position where examination "may be found to be not practicable." I do not think we can go so far as to say that the action of the municipal and also State Civil Service Commission has been an abuse of this discretion.
Dissenting Opinion
I find nothing in the record to indicate that it is not practicable to appoint assistant clerks of the Municipal Court according to the constitutional mandate (Const. art. V, § 6) that appointments *139 in the civil service shall be made for merit and fitness to be determined by competitive examinations. I dissent.
LEHMAN and O'BRIEN, JJ., concur with HUBBS, J.; CRANE, J., concurs in opinion; POUND, Ch. J., dissents in opinion in which CROUCH, J., concurs.
Ordered accordingly.