94 N.Y.S. 733 | N.Y. App. Div. | 1905
The facts are not in dispute and only questions of law are involved upon this appeal.
One Augustus B. Santry had been for several years health officer of the cEy of Little Falls, haying been appointed annually by the
On the 9th day of February, 1904, while said Santry was discharging the duties of health officer under his last appointment, the board of health of the city of Little Falls, consisting of six members besides the mayor, convened as such, and all members being present, by a majority vote assumed to appoint the- defendant health officer ' of said city to succeed said Santry, his term to commence on the 1st day of March, 1904, the date when the term for which said Santry was appointed expired. The defendant took and filed the official oath of office on the 15th day of February, 1904, and on March 1, 1904, took possession of the office, assumed to discharge its duties, and was acting as health officer of the city when this action was commenced and at the time of the trial.
It is conceded that by the civil service rules applicable the position of health officer was in the non-competitive class. The defendant had not prior to his appointment taken a civil service examination and had not received any certificate of qualification and fitness as required by the rules of the Civil Service Commission. He, however, after his alleged appointment by the board of health as aforesaid and about the last day of February, 1904, and before his term of office commenced, did take a non-competitive examination pursuant to a notice directed by the mayor to the chairman of the civil service commission of the city of Little Falls, which notice is as follows:
“ It is necessary that Dr. S. A. Ingham (the defendant) and I think Dr. Geo. H. Smith should take a non-competitive examination before March 1st. Please attend to this matter.
“ Yours sincerely,
“ EDWARD H. DOUGLAS,
“ Mayor."
In compliance with such request of the mayor the defendant was given an examination with others, and he, the defendant, passed the same and received a certificate to the effect that he was in all respects qualified for the position or employment of health officer
We, however, are of the opinion that the defendant was not eligible for the office of health officer when appointed, and for that reason he was properly ousted from office, and the judgment appealed from should be affirmed. ' The several provisions of the Civil Service Law clearly indicate that it was the intention of the Legislature that all persons seeking employment in the civil service and who came within the provisions of the Civil Service Law, should be declared to be eligible by certificate of the officers or boards created by such law: It was not the intention of the Legislature that an appointment could be made subject to the approval of such officers or boards. In the non-competitive class the appointing power may name or indicate to the civil service board the person whose appointment is desired, and if the board finds that such person is qualified and fitted for such position and so certifies, such appointment may then be made, and not until then. It would
We conclude that the defendant was not, at the time when the board of health of the city of Little Falls assumed to appoint him health officer'of said city, eligible to appointment to such office, because at the time he had not passed the civil service examination and been certified as qualified and fitted for the position, and that, therefore, the judgment ousting him from office was properly rendered against him.
It follows that the judgment appealed from should be affirmed, with costs.
-All concurred, except Williams, J., who dissented. '
Judgment affirmed, with costs.
Laws of 1895, chap. 565, § 14, as amd. by Laws of 1896, chap. 13.— [Rep.