People ex rel. Mack v. Burt

72 N.Y.S. 567 | N.Y. App. Div. | 1901

Ingraham, J.:

This proceeding was instituted by a taxpayer to review the action; of the municipal civil service commissioners in including in Schedule-B of the classification of positions in the department of health a position of anti-toxin accountant, which act of the municipal civil service commissioners was subsequently approved by the State Civil Service Commissioners. The municipal civil service commissioners acted under section 10 of chapter 370 of the Laws of 1899, which provides that “ The mayor of each city in this State shall appoint, and employ 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 and promotions-therein and examinations therefor.” The power conferred by this section is clearly one which imposes upon the commissioners duties-in their nature administrative, rather than judicial. It is one step in the proceeding for the appointment of officers and employees of the municipal corporation. The statute under which the respondents acted is entitled “ An act "in relation to the civil service of the-State of New York and the cities and civil divisions thereof.” Its. intent is to provide for the proper and orderly appointment of' officers and employees of the State and the municipal corporations-therein. A classification of the officers is necessary to determine; the method of appointment, and such a classification is no more a. judicial determination than is the designation of the officer by the appointing power under the provisions of the statute. At common law as under the Code of Civil Procedure a writ of certiorari' is only allowed where the object sought is to review a judgment: or a judicial determination of an inferior tribunal or of am officer acting under statutory authority exercising judicial power. “ The writ lies only to inferior courts and officers exercising judicial powers, affecting the property or rights of the citizen.” (People ex rel. Corwin v. Walter, 68 N. Y. 403; People ex rel. Second Avenue Railroad Co. v. Board of Comrs., 97 id. 37; People ex rel. Copcutt v. Board of Health, 140 id. 1; People ex rel. Trustees v. Board of Supervisors, 131 id. 468.) In the latter case the court say : “ The writ of certiorari is appropriate only to review the judicial action of inferior courts or of public officers or bodies exercising under the laws judicial functions; and there is no authority to be found in the reports of this State sanctioning its use for any other purpose. When the action of a public officer, or of a public body, is merely legislative, executive or administrative, although it may involve the exercise of discretion, it cannot be reviewed by certiorari.” The Civil Service Act (§ 27) authorizes a taxpayer to bring an action to restrain the payment of compensation to any person appointed to, or holding any office, place or appointment in violation of the provisions of the act, and, in case of the appointment of any officer in violation thereof, that would seem to be the proper remedy.

It follows that the action of neither the municipal nor the State Board of Civil Service Commissioners can be reviewed in this proceeding, and that the writ should be dismissed, with costs.

Van Brunt, P. J., Patterson and Laughlin, JJ., concurred.

Writ dismissed, with costs.