People ex rel. Wilson v. Knox

61 N.Y.S. 472 | N.Y. App. Div. | 1899

Patterson, J.‘:

This appeal is from an order granting a writ of mandamus to compel the issuance of a certiticate under section 19 of chapter 3 TO of the Laws of 1899. - There -is a radical difference between this ease and that of Chamberlain, decided herewith (ante, p. 518). Here, the relator was origipally appointed a police clerk’s assistant by thé hoard of city magistrates, on; the 28th; day of. ¡February.,--:1;89.9., to fill the pnexpired ■term-'o£ ¿^deceased prior ■ .incumbent, which term extended-to'.and endedeh the SOth.of: June, 1899. That appointment was made pursuant to the Civil Service Law then in force (Chap. 601, Laws of 1895). The relator was selected from the eligible list, he standing* at the head thereof, and'having submitted to and passed an appropriate, competitive civil service examination, held in October, 1897. His original appointment and the tenure' of his office thereunder antedated, therefore, the'present Civil Service Law (Chap. 370,'Laws of 1899), which did not take effect until the 19th of April, 1899. On the 26th. of June," 1899, the board of" city magistrates reappointed him a police clerk’s assistant, foiya term of two years, beginning the 1st of-July, 1899, and ending on June 30, 1901. The effect of that reappointment was to ' continue in office uninterruptedly án incumbent who had .fulfilled upon hi's original appointment a few.mbnths before,, every condition and requirement constituting fhe test of fitness and .merit, under constitutional provisions and the law existing on the-subject at the time of' that appointment. The question is whether, in such ■ circumstances, on á':reappoiñtmént, 'it was'necessary for him,'under the' provisions’of the act .of 1899, to submit to another examination to be again put upon the eligible list- and enter into competition -wit-li others for his place; ' We find nothing in the act-of-1899 demanding-it: That statute provides a complete--and- -consistent scheme, effective from its'-passage, for the original entry of persons into the ci-vi-l service, for" their promotion, transfer, reinstatement or reduction. "There is a failure: to require the re-examination of ■ those -already in -the .service: (duly' appointed under antecedent laws, rules and regulations), for retention- in their places, and also to legislate concerning the eligibility of such persons to be continued in place, where short terms -of office are-prescribed by the laws creating the positions. The practical purpose to be attained by civil service laws is not only-to ’ secure for, the public service, but to retain in that service, those who are qualified for the positions.in which they are placed by the tests of the la'w in force at the time of their original ¡entry into, service. - . In'.the absence of something declaratory ..of indicative of the design, and simply because a short official term has expired by lapse of time, the law is not to be construed as requiring a' renewed test of the merit and fitness of those' who have already been' determined to be qualified and who are in the actual exercise of the functions of their offices. There is no reason suggested why the-statute should be so construed. The object of the Constitution and of the law has' been attained'a.nd their purpose fully satisfied: •' = ■

If the foregoing views are correct, the relator ‘neither needed nor was entitled to the perlifícate he asked for, and, consequently, the writ of mandamus should have been denied, for he has the ordinary. Action to recover his salary, whether the pay'roll bears the certificate required by section 19 of the act of 1899, or not.-"' The requirement of such a certificate is a novel feature of law, and taking into consideration both’the 19th section and the one preceding it, we think it quite clear that the requirement is as to prospective appointees. The 19th section commences by declaring that “ It shall be unlawful for the comptroller or other fiscal officer of the State or any city or ■civil division thereof for which civil ■service rules have been prescribed, pursuant to this act,” to draw any warrant or pay any salary to any person in the classified service of the State or of any city, unless the pay roll shall bear the certificate provided for' in the act-. The words “for which civil service rules have been prescribed pursuant to this act ” are used to indicate the conditions under which the certificate should be required-. ■* It can hardly have been intended to apply merely to fixing á date When pay rolls should in all cases he thus certified. If that had been the intent it. would have been natural to fix an earlier date, as for instance, “ from and after the passage of this act,” for, as the act in terms classifies the service, and ■as the object was to prevent evasion, why postpone the required certificate until civil service rules had been prescribed pursuant to the act % It seems plain that it was the appointment of persons to office in violation of the rules to be prescribed pursuant to the act - that was specifically to be guarded against. That is emphasized by what follows. What is the civil service commission to certify ? “ That the persons named in such estimate, payroll or account have been -appointed or employed or promoted .in pursuance of law and of the ■rules made in pursuance of law.” This plainly applies to appointments made, not in pursuance of prior statutes and" prior rules, but in pursuance of this act and of the civil service rules to be prescribed thereunder: It is-true that- the • phraseelogy-of thplast-quotation varies from the precise expression in the opening sentence of the section, and it may be urged therefrom that it was the purpose of the lawmakers to, devise a new system concerning the methods of payment of salaries which should '.include evidence to be furnished to the disbursing officer that a person was entitled to salary, and that it should be applicable to all persons in the classified civil service, no matter wdie.n appointed. It may be supposed that this would result from the provisions of section 18, whicli require the preparation of an official roster of persons in 'the classified service, both in the State or any civil division thereof, except cities, and (in another connection) also in cities, and it may be sought to infer from the provisions' of - section 18 respecting such rosters, that a certificate provided for in section 19 must be furnished in every case, and that for the refusal to furnish .it one entitled to salary may have the remedy of mandamus given by section 19.

Section 18 enacts that no person shall bevappointed to or employed iii any position in the classified service of the State or of any city or civil division thereof “for which mies ham been prescribed pum suant to the provisions of this dot, until he has passed an examination,” etc. It then provides that it shall be the duty of each appointing officer of the State orof any such civil division, except cities, to-report to the State Civil Service Commission forthwith upon such employment, etc., the name of the appointee, the title and character of his office or employment, the date of the commencement of serv-^ ice by virtue thereof and the salary or compensation, etc. The commission is required to keep in its office.an official roster of the classified service of the State and each civil division thereof, for which rules have been prescribed pursuant to this act, except cities, an d .shall make certain entries, upon that roster. It .then proceeds to state that “ in like manner ” the municipal commission of each city' shall, keep in its office'an official roster of the classified service of such city, and shall enter thereon the name of each and every person avIio has been appointed to or employed in.any position., promoted or reinstated in any such service, “ as it may require or deem satisfactory,”' and .that, such, person -Avas appointed. to or-, .employed or promoted or reinstated in the service in conformity with the provisions of law and of the rules.

It may be argued from the provisions of this 18th section that, inasmuch as records’ are required to be kept in the office of the municipal commission of each city, containing evidence of the employment of those in the classified service, in conformity with the provisions of law and of the rules, that, therefore, the provisions of the 19th section respecting the certificate applies to all classified incumbents of office, because the municipal commission has in its possession the evidence upon which such certificate • may be based arid has merely to refer to it. But it will be observed that both sections apply to persons appointed under rules-prescribed pursuant to the provisions of the act of 1899 ; and that the requirement to furnish the certificate is limited in this respect would seem to follow from another sentence in the 19th section, namely, 11 Any sums paid contrary to the provisions of this section may be recovered from any officer or officers making such appointment in contravention of the provisions-of law-and of the rules made in pursuance of law.” If these latter words, in their immediate connection, relate to past appointments, then the act of a fiscal officer in paying past appointees without a certificate would create a present liability against the original appointing officer, because of his former exercise of the appointing power. In other words, a retroacting penalty.

That seems to be the necessary logical result of any other interpretation than we have given of this 19th section, and such result is simply inadmissible. The Legislature never intended it. What that body did and meant to do was to prescribe a penalty for the making of appointments thereafter in contravention of the law and of rules to be made in pursuance of the law it then had under consideration. The act of 1899, and the civil service rules adopted pursuant thereto, were" made thereafter the sole guide both of the appointing power and of the fiscal agent, and penalties were provided for the infraction of the law by each, which were cfeemed adequate to restrain any attempt at disloyalty to the system.

We think the expression, “in pursuance of law and of the rules made in pursuance of law,” was employed with the same purport and meaning as ¡previously used in the introductory sentence of section 19, and that it is apparent from the context that the civil service commissioners were furnished with clear guides for their action, and that they are to certify or not, in accordance with the plain proviso ions of the act of 1899, and of what was supposed would be equally plain civil service rules prescribed pursuant thereto,

Thus reading the act and its sections, the duties of the civil service commissioners, with respect to certification,, are clear and •simple. It was for the enforcement of such .particular .duties that-the appointee was given the right to compel ■ performance by mandamus. •.

Our conclusion is that persons lawfully appointed prior to the adoption ofithe civil.-service rules under chapter 370 of the Laws of 1899$ cannot be kept out of their salaries until the pay roll which contains their names bears the certificate of the civi-1; service commission that they- were appointed “in pursuance of law and of -the rules made in pursuance of law,” and, on the other hand;, that those illegally appointed gain nothing by a certificate that, in the judgment of the commissioners, they, were -appointed “in pursuance of law, and of the rules m.ade in pursuance;of law.”

The order should be reversed*'with.costs. ■

Van Brunt, P. J., Barrett, Rumsey and O’Brien, JJ., concurred.

Order reversed, with costs.