70 N.Y.S. 983 | N.Y. App. Div. | 1901
The sole question presented by the appeal is whether, in view of the provisions of section 9 of article 5, and section 3 of article 10 of the Constitution, of the provisions of said chapter 370 of the Laws of 1899, enacted pursuant to said section 9 of article 5 of the Constitution, and of the provisions of the Greater Rew York charter (Laws of 1897, chap. 378), and of rule 42 of the State civil service rules and regulations relating to the city of Rew York, the removal of the relator was illegal.
We find no provision of the Constitution, applicable to the position held by the relator, which either prohibits, or regulates removal therefrom.
Section 23 of the State Civil Service Law (Laws of 1899, chap. 370), among other things, prohibits the removal or discharge of any person from an office or employment within the scope of the rules established by the State Civil Service Commission under said act on account of his political opinions or affiliations, or for refusing to contribute to any political fund, or to make any contribution of money or service, or any other valuable thing, for any political purpose. It is not shown or claimed that the relator was removed for any of these prohibited causes. Section 6 of said act provides that the State Civil Service Commission shall, among other things, “Prescribe, amend and enforce suitable rules and regulations for carrying into effect the provisions of this act and of section nine of article five of the Constitution of the State of Rew York as herein provided. The rules presci’ibed by the State and municipal commissions pursuant to the provisions of this act shall have the force and effect of law.”
The provisions of the act conferring authority upon municipal commissions to adopt rules are contained in section 10. It is not clear that the power there granted extends- beyond making suitable rules classifying the positions in the civil service of the city and regulating examinations therefor and appointments and promotions therein. In the event of the failure of a municipal commission to adopt and secure the approval of such rules within sixty days after its appointment, the State commission is authorized to make such rules. It may well be that the authority of the State commission to make rules for the prevention of removals for political reasons must
Section 1543 of the Greater New York charter provides in part as follows: “ The heads of all departments (except as otherwise specially provided) shall have power to appoint and remove all chiefs of bureaus (except the chamberlain), as also all clerks, officers, employes and subordinates in their respective departments, except as herein otherwise specially provided, without reference to the tenure of office of any existing appointee. But no regular clerk or head of a bureau shall be removed until lie has been allowed an opportunity of making an explanation, and in every case of a removal the true grounds thereof shall be forthwith entered upon the records of the department or board. In case of removal, a statement showing the reason therefor shall be filed in .the department.”
Provisions of law, in effect the same as these and in almost the identical language, have been in force and applicable to the city- of Hew York since the reorganization charter of 1873 (Laws of 1873, chap. 335, § 28; Laws of 1882, chap. 410, § 48.)
The relator was not a regular clerk or the head of a bureau, and this provision of the charter did not insure him against- removal without an opportunity of making an explanation.
It is unnecessary to decide whether this provision required the filing of a statement in the department showing the reason for the removal of the relator. It is not alleged that such statement was not filed, and we may not presume that an official duty has not been performed.
It will be observed that the provisions of rule 42 are quite similar to those of this statute. These 'statutory provisions have been held to constitute a substantial limitation upon the power of removal. Compliance therewith is essential to confer jurisdiction to discharge a regular clerk or head of a bureau. The reason assigned must be
It will be observed that this rule requires the doing of three things as conditions precedent to the validity of the removal of any person in the classified service of the city of New York: (1). Unless, and until a statement of the cause of the proposed removal shall be filed with the municipal commission; (2) a copy of such statement shall be furnished to the employee; and (3) the employee shall be afforded an opportunity to present an explanation in writing. The classified service comprises all positions not embraced in the unclassified service, and includes laborers and all positions except
This court is committed by the decision in Matter of Murphy v. Keller (61 App. Div. 145) to the view that this rule is in conflict, with the Greater New York charter. The Appellate Division of the third department. in the' case of People ex rel. Ray v. Henry (47 App. Div. 133), without distinguishing between officers and public employees, held that “ a subordinate female officer or employee,” whose term of office was not fixed, was removable at the pleasure of the appointing power, and that the Civil Service Commission had no authority to restrict that power of removal which was secured by section 3, article 10 of the Constitution. In the second department, the opinion in the case of People ex rel. Percival v. Cram (50 App. Div. 380), which was concurred in by one of the members of the court, two others concurring in the result and one dissenting, sustained the validity of the civil service rule now under consideration. That decision was reversed (164 N. Y. 166), upon the ground that the appointee whose rights were there in. question was a public officer, and the tenure of office not being fixed by law, he was removable at will, and the Civil Service Commission had no power to restrict such removal. The Court of Appeals, however, expressly declined to pass upon the validity of the rule as applicable to employees. Prior to the decision denying the writ in this case, it had been
The trend of judicial authority in this State, as shown by the cases cited and other decisions, and in the Federal courts under somewhat similar Federal statutes and civil service rules, is in the direction of holding that the purpose of the Civil Service Laws is to regulate appointments to, and not removals from, office, and that the power of appointment confers the power of removal, which can only be restricted by the legislative authority. (Carr v. Gordon, 82 Fed. Rep. 373; Flemming v. Stahl, 83 id. 940; Morgan v. Nunn, 84 id. 551.)
The State Civil Service Law contains no restriction upon the power of removal, except in the case of veterans, and except, also,' that removal shall not be for political reasons; and section 1543 of the Greater- New York charter expressly confers the power of removal from the position at the pleasure of the appointing power.
We are constrained to hold that rule 42 is something more than a lawful regulation of removals authorized by law, and that in so far as it requires a statement of the cause of removal to be served upon the appointee or employee, and that he be afforded an opportunity to present an explanation in writing, it is a substantial limitation upon the power of removal (People ex rel. Munday v. Fire Comrs., 72 N. Y. 445), and, therefore, to this extent void.
It is contended that section 1543 of the charter herein quoted was repealed by chapter 186 of the Laws of 1898, to which reference has been made, and the case of People ex rel. Fleming v. Dalton (158 N. Y. 175) is cited as authority for this proposition. We are of opinion, however, that this section was. merely superseded in part, and to that extent became inoperative, while this law of 1898 was in force, but upon the repeal of that statute this section of the charter remained in full force and effect.
It follows that the order appealed from should be affirmed; but as the case presents a novel question, not free from doubt, no costs should be allowed against the relator.
Patterson and Ingraham, JJ., concurred; McLaughlin and Hatch, JJ., dissented.
Order affirmed', without costs.