- This appeal brings before us for review an order of the General Term of the Supreme Court denying an application for a mandamus, to compel the Yew York Civil Service Commission to admit the relator to examination as to his fitness to perform the duties of the office of clerk to the collector of canal statistics. It is claimed that the relator became entitled to the writ by virtue of the provisions оf chapter 354 of the Laws of 1883, creating a civil service commission, and the rules issued in pursuance of authority thereby conferred. It must be conceded that this claim is well founded, provided the statute and rules are to be enforced according to • their plain meaning and intent. It is, however, contended by the respondent that,' so far as such statute and rules intrench upon the power and authority to manage and control the business of the canal department and appoint, remove and suspend subordinates at pleasure, conferred upon the superintendent of public works by the Constitution, they are unconstitutional and void, and, therefore, neither impose the duty or confer authority upon the commission to make the examination applied for. This contention brings before the court one of the most important and delicate duties it is called upon to perform, viz., that of pronouncing upon the constitutionality of an act of the legislature, and, within settled rules, it requires a case to be made showing clearly that the statute, when fairly and reasonably construed, is brought into conflict with some provision of the Constitution, before the court can be justified in pronouncing it an unauthorized expression of legislativе will. If the act and the Constitution can be so construed as to enable both to stand, and each can be given a legitimate office to perform, it is the duty of the court to give them such construction; *568 "but if this cannot be done, it is equally our duty to declare the supremacy of the constitutional provision, and the nullity of the statute. While every presumption, is in favor of the constitutionality of the law, if, nevertheless, it aрpears that its enforcement must necessarily produce a conflict with the letter or spirit of the Constitution it is the duty of the court to condemn the law.
There is but little dispute between the parties as to the rules governing the interpretation of statutes, and that subject may be disposed of by reference to the rule stated in the head-note of the
People ex rel. Jackson
v.
Potter
(
It is apparent from these provisions that it was intended thereby to create a new scheme for the management of the сanal affairs of the state; the principal feature of which was to give large authority to the superintendent in their management and control, and to hold him personally accountable for any failure to exercise such powers in the interest and for the benefit and advantage of the People. As an incident of this scheme the superintendent was given power, subject only
*570
to his sense of duty and the оbligations of his oath of office,, to select and appoint his subordinates, and was to be made personally responsible for the faithful performance of the duties assigned to them. It was plainly intended thereby to leave to the superintendent exclusively the determination of the propriety of such appointments, and the sufficiency of the qualifications possessed by proposed apрointees, and to hold him responsible for the faithful exercise of his intelligence, judgment and discretion in the performance of that duty. The broad grant of power excludes the idea that it was. intended that he should be hampered, restricted or regulated in its exercise by any extraneous authority whatever, except such as might be authorized by other constitutional limitations, expressly applicable therеto. When this amendment was. adopted, the People had plainly before them the question of the mode thereafter to be pursued in appointing subordinate officers of the canals, and they decided to confide their selection to the superintendent, and trust to his judgment for the faithful performance of that duty. This decision cannot now be reversed or disregarded without overthrowing the fundamental law, although it may be thought that a better method of performing-such duties has since been discovered. Any provision of law, therefore, which materially interferes with the freedom of selection conferred upon the superintendent, and the exercise of his judgment in investigating and determining the fitness and propriety of contemplated appointments, seems to us not only to conflict with the terms of the Constitution, but plainly to violate its spirit and intent.
(Menges
v.
City of Albany,
A very brief summary of the provisions of chapter 354 of the Laws of 1883 and the rules adopted thereunder, so far as-they are material to this discussion, will show to what extent, if any, the choice of the superintendent in the appointment of his subordinates has been affected by the civil service legislation. The act provides for the appointment by the governor, with the advice and consent of the senate, of three persons to constitute a civil service commission. *571 This commission is charged with the duty of aiding the governor in preparing rules to carry into effect the act, and, among other things, to provide for competitive examinations, for testing the fitness of applicants for public service, now classified or to be classified hereafter. It was-further provided that “ all the offices, plaсes and employments-so arranged or to he arranged in classes shall be filled by selections from among those graded highest as the results of such competitive examinations.” Section 7 then enacts that, “ after the termination of eight months from the expiration of the present session of the legislature, no officer or clerk shall he appointed to, or promoted in either of the said classes-now existing, or that may be arranged hereafter pursuant to-said rules, until he has passed an examination or is shown to be specially exempted from such examination in conformity herewith
It was conceded that the office sought by the relator is-classified in such rules, under Schedule B, as an office subject to the provisions of the act. By rule 17 it was further provided “ whenever any officer having the power of aрpointment-to or employment in any grade or subdivision in this schedule shall so request, the commission shall certify to him the names of three eligible persons who are graded highest on the proper register, indicating such of them, if any, as have been honorably discharged from the military or naval service of the United States in the late war. From the three persons whose names are so certified the officer shall make a selection to fill' the vacant place, subject, however, to the provisions of rule
44.”
This rule requires such appointment to be filled by a a person honorably discharged from the army or navy in the late war, though graded lower than the others so examined, provided there be such persons on the list furnished. It thus appears that the superintendent is absolutely prohibited from making any appointment to a place, authorized by the Constitution to be filled by him, unless such person has passed the examination required by the act. He is further restricted to a selection from among the names of three persons certified
*572
to him by the commission, unless one of such persons shall be .a soldier or sailor honorably discharged from the service of the United States in the late war, in which case he is required to .appoint suсh soldier or sailor, whatever his grade may be, upon .such list, to the exclusion of all other applicants. We are not at all disposed to question the merits of the scheme of civil service administration which has been inagurated under these laws, but we believe that one which more effectually annuls .and overthrows the system of canal management provided by .the Constitution could scarcely be devised. Undеr this law the superintendent is absolutely deprived of the exercise of .any judgment, choice or discretion in the matter, and is required in some cases to appoint the single individual whose name is presented to him by the commission, and in all other cases his •choice is limited to a selection from among three persons whose names may or may not be all submitted to him by the same body. Under the Constitution the superintendent is at liberty to select any person for appointment from among the million •or more citizens of the state eligible to such office, while under the statute he can, at the best, only select from the three names furnished to him by a tribunal over whom he has no •control and the efficiency of whose tests he may entirely disapprove. Whether this mode of selecting the officers in question is a wiser and better one thаn that provided by the ■Constitution cannot affect the decision of this appeal, for the sole question here is whether, in its practical operation, the statutory scheme takes away a power otherwise bestowed by the organic law. It is also quite immaterial that the board, authorized to present names for the superintendent’s choice determine such names by arbitrary rules' which exclude the idea of any bias or personal preference on its part, for ‘the question is whether the mode provided materially impairs or destroys the scheme provided by the Constitution. If it does, then it is repugnant to the Constitution and must be condemned, for the law imputes to the legislature an intention to effect those results which are - .the necessary and natural consequences of the execution
*573
of the laws enаcted by it. It seems to us that this law-leaves to the superintendent only the barren office of-issuing a commission to a person whom others have selected for his adoption, whereas the Constitution provides that he shall be the exclusive actor in determining the wisdom and propriety of the proposed appointment.
(Menges
v.
City of Albany,
It cannot be reasonably contended that the superintendent, has, under this system, any such freedom of action and choice as is implied in the power to appoint his subordinates and perform the duties charged upon him by the Constitution. Such power embraces in its exercise not only perfect liberty of choice as to the person to be appointed, but the duty of' personally investigating the character and qualifications of the proposed appointee, and determining his fitness to discharge the services required of him. This was a duty which the Constitution required him personally to perform, and which he could not lawfully delegate to any other. (Menges v. City of Albany, supra.) Any legislation which relieves him from the obligation to exercise his judgment and skill in the service of the People deprives them of the contemplated benefits arising therefrom, and effects a radical change in the scheme inaugurated by the constitutional provisions. The great impropriety of such a construction is made apparent by the consequences which would follow the taking away the selection and appointment of his subordinates, and at the same time holding him criminally and pecuniarily responsible for the effects of their misconduct and inefficiency in the performance of their duties.
How far the legislature may circumscribe by generаl laws the eligibility of the citizen to fill offices in the civil service of the state, by declaring disqualifications therefor, arising out-of special circumstances or inconsistent employments, it is unnecessary and would now be unprofitable to consider; but. we think it entirely clear that it has no power to impose restrictions directly upon one who possesses constitutional authority, which practically destroys or imрairs the exercise- *574 of such authority. The vice of this legislation is that it is •directed at the appointing power alone, and enjoins it, in imperative terms, to refrain from the exercise of that power, ■except under conditions and restrictions imposed by the legislative will alone.
It is further contended by the relator that section 6 of .article 5 of the Constitution gives some support to the legislation under cоnsideration. That section provides, in general terms, that “ the powers and duties of the several boards and ■ of the several officers in this article mentioned, shall be such as now are or may be hereafter prescribed by law.”. This .section was contained in original article 5 of the Constitution of 1846, and applied to a large number of state officers and boards, besides those of canal commissioners, whiсh were .abrogated by the amendment of 1876. The section has, therefore, a wide operation even though it be held not to apply to the officers created by the amendment.
Under well-settled rules of construction we think that there is the most conclusive reason to be drawn, from the language of the amendment itself, for holding that it was not intended to be applied to the superintendent of public works. While in thе act of framing this amendment, the question was presented to its authors how far the powers therein attempted to be conferred should be limited by the supervision of the legislature; and, with reference to that subject, they twice expressed themselves in clear and explicit terms. Thus the superintendent was authorized to prescribe the duties ■of the. assistant superintendents, subject to modification by the legislature, аnd also to make rules and regulations for the use , and management of the canals, subject to the same regulations. These provisions were entirely unnecessary if it were ..supposed that the offices provided for by the amendment were subject to the operation of section 6 of article 5.
Under established rules of construction these express provisions for the supervision by the legislature over the cases referred to, afford the strongest implication that, in other .respects, it was not intended to leave the powers conferred by *575 the amendment to such control or supervision. ‘Expressio u/nius personae vél rei est exclmsio alterius ”
We, however, yield our fullest sanction to the doctrine that an amended Constitution “ must be read as a whole and as if •every part had been adopted at the same time and as one law, and effect must be given to every part of it, each clause exрlained and qualified by every other part.”
(Gilbert El. R. R. Co.
v.
Anderson,
It is also a familiar rule of construction that if there be any repugnancy between an amended statute or law and the original, which cannot be so construed as to leave them both to stand and each have a legitimate office to perform, the original enactment must be deemed to have been repealed by the later expression of the legislative will.
(Gilbert Elevated R. R. Co.
v.
Anderson,
We are, therefore, of the opinion that section 6 of article 5 does not apply to the superintendent of public works, so far as the Constitution confers power upon him to . perform the duties of that office, and that his subordinates do not come under the operation of the act creating the civil service commission.
It follows that the order of the court below should be affirmed.
Ail concur.
Order affirmed.