130 N.Y.S. 306 | N.Y. App. Div. | 1911
The question presented on this appeal is whether the position of probation officer of the Court of Special Sessions of the city of New York, created by chapter 659 of .the Laws of 1910, is of such a character as to necessitate its classification in the exempt class of the municipal civil service instead of in the competitive class in which it has been placed by the municipal civil service commission of the greater city of New York, with the approval of the mayor and of the State Civil Service Commission. .
The relator, Jacob Simons, who was appointed as one of such probation officers by the justices of said court, in January, 1911, without having passed a competitive examination, was unable to obtain his salary for the month of February, 1911, by reason of. the refusal of the municipal civil service commission to certify the payroll, such refusal being based upon the fact that the commission had placed the position in the competitive. class. He thereupon moved for a peremptory writ of mandamus to compel the certification of the payroll, and also the reclassification of his position in the exempt class, and after a contested hearing in the court below, an order was made granting the relief sought, from which the municipal and State Civil Service Commissions and the mayor .appealed to this court.
In the Peters case, the court, in commenting upon the holding of the Court of Appeals in the Schau case, to the effect that the. courts will not interfere with a given classification where it is fairly debatable, further enunciated what appears to be the correct present rule, applicable to such a question, in the following words: “But the court [of appeals] also recognized the principle that it. remained a question of law whether, in a case where the facts were undisputed and only one inference could reasonably be drawn as to the confidential character of the position, a question of law is presented for the determination of the courts.”
The relator claims, and has been sustained in the court below, that the position of probation.officer,'by express declaration of the statute creating it, in view of the duties of the office, and under other provisions of law applicable thereto, is a confidential one, and thus falls within the decisions holding that such a position can be properly classified only in the exempt class. While the Civil Service Law does not use the expression “ confidential position,” in connection with those that shall be included in the exempt class, it does provide that, in addition to certain specified offices, “there may be included in the exempt class all other subordinate offices for the filing of which competitive or non-competitive examination may be found to be not practicable.” (Civ. Serv. Law [Consol. Laws, chap. 7; Laws of 1909, chap. 15], § 13, subd. 4.) Confidential positions
In the Chittenden case one of the first authoritative declarations of the Court of Appeals under the civil service provision of the Constitution of 1894, Judge Haight laid down certain principles which have since proved valuable guides in the administration of this law, Among other things he said : “In order to determine whether the examination of a candidate for an office is practicable, we must first ascertain the nature and character of the duties of his position. Having ascertained the facts, the question of exemption then, doubtless, becomes one of law.”
• In disposing of the question now before this court, it, therefore, becomes necessary to inquire into the duties of the probation officers in question under express statutory provisions, as well as by necessary and reasonable implication as to such further duties as will be cast upon them in the actual conduct and administration of their positions.
■ Relator’s position is one of several additional probation officers created by section 96 of chapter 659 of the Laws of 1910, which was a comprehensive act relating to the inferior courts of criminal jurisdiction in the city of New York, and defining their powers and jurisdiction and providing for their officers. It is pertinent and important to note that the very section creating these additional probation officers and continuing those already in office provides specifically that “ The chief probation officers and all other probation officers shall be deemed the confidential officers of the justices and magistrates,” and further, that the magistrates or justices appointing such chief or other probation officers may remove them at pleasure.
As the Constitution provides for competitive examinations only as far as practicable, there must necessarily rest in the Legislature considerable discretion in determining whether it is practicable to test the fitness of an applicant for a given position created by it.
It must, therefore, follow1 that the Legislature would have the power, within constitutional' restrictions, itself to classify existing positions or. new ones which it should create, without delegating the authority so to classify to civil service boards, as it does generally and in cases for which it does not see fit itself to provide. • It must, therefore, be assumed that, in the case of probation officers, the Legislature, in expressly declaring that such probation officers be deemed the cofifidential officers of the justices and magistrates, thereby itself placed these positions in the exempt class, in view of the interpretation of the Constitution theretofore promulgated by the courts to the effect that it was not practicable to determine the fitness of persons for confidential positions.
The question for determination, ■ therefore, left to the court is, in one aspect, whether, in classifying the' probation officers created by the statute in question in the exempt class, the Legislature so palpably and unreasonably deviated from the constitutional provision requiring merit and fitness to be ascertained, as far as practicable, by examinations which so far as practicable should be competitive, as to constitute a gross abuse of discretion on its part, clearly so violative of the constitutional provision as to make the classification void as matter of law.
It is well settled that the classification of a given position involves the exercise of judgment and discretion, though it is more of a legislative or executive character than judicial. (People ex rel. Schau v. McWilliams, 185 N. Y. 92.) It is also established that where discretion is lodged in the Legislature by constitutional provision, its exercise will not be overturned by the courts, unless such discretion is so abused as to show, beyond all reasonable controversy, a- gross and deliberate violation of the plain intent of the Constitution and a disregard
So the courts have recognized and respected a considerable discretion in the Legislature as regards the classification of positions in the civil service, and the difficulty of defining or limiting it where its exercise does not clearly and sharply override the Constitution. (Matter of Keymer, 148 N. Y. 219, 226.)
Bringing these principles to play upon the question now before this court, we have a situation in which, in effect, the classification of the positions of probation officers in the exempt class by the Legislature has been attempted to be overruled by their classification in the competitive class by the local civil service commission of the city of New York.
I am satisfied that .the classification by the Legislature was reasonably within the discretion lodged with it by the Constitution requiring examinations only so far as practicable, and that the determination of the Legislature that examinations were not practicable in the case of these probation officers cannot be assailed either by local civil service commissions or by the courts.
An examination and consideration of the duties of the probation officers in question confirms the conclusion that it is not practicable to determine satisfactorily the fitness of applicants for these positions by competitive examinations, and that the legislative declaration that these officers shall be deemed confidential does not so clearly contravene, if it at all contravenes, the constitutional provisions relating to the ascertainment of fitness of applicants for these offices, as to require that it be held nugatory and béyond the power of the Legislature to enact. A brief survey of the duties of these probation officers will show the correctness of this conclusion. ■
Section 97 of chapter 659 of. the Laws of 1910 provides that each of the probation officers shall have all the powers and duties conferred upon probation officers by the Code of Criml-
The general powers and duties conferred upon probation officers by the Code of Criminal Procedure are found in section 11a, which was amended by chapter 610 of the Laws of 1910, during the same session of the Legislature at which the law creating additional probation officers was passed. This provision of the Code authorizes the appointment of probation officers from among the officers of a society for the prevention of cruelty to children, or of any charitable or benevolent association, or from among reputable private citizens, male dr female. This elastic choice as to appointment, of itself, tends to negative the idea of limiting appointments to those qualified under competitive examination, for, if appointments were so to be limited, the range of appointment thus given by the Code provision would be useless and meaningless. On the other hand, the propriety of allowing appointments to these positions to he made from officers of societies for the prevention of cruelty to children or of charitable or benevolent institutions, is well calculated to secure the most efficient and experienced probation officers and those best fitted for the particular kind of humane work which they are' called upon to do under the law. The same Code section authorizes, the appointment as probation officers of any officer or member of the police force of any city or incorporated village who may. he detailed to do duty in such courts, or of any constable or peace officer, hut section 96 of chapter 659 of the Laws of 1910 provides that, on and after September 1, 1910, no police officer shall he designated or act as á probation officer.
As regards the duties of probation' officers, section 11a, subdivision 2, of the Code of Criminal Procedure provides that they shall, when so directed by the court, inquire into the antecedents, character and circumstances of any person or persons accused of crime, and into the mitigating or aggravating circumstances attending the same, and report thereon in' writing to the court; that such probation officers shall furnish to the persons placed on probation a statement of the
It seems to me reasonably clear that the mere statement of the duties and functions of these probation officers, amongst which such special directions and instructions as must constantly be given by the justices to such probation officers cannot be anticipated or formulated, shows that their relationship to the judicial superiors appointing them is not only of a confidential nature, but that the positions are generally, and foroother reasons, peculiarly of a character to make a competitive examination unsuitable and impracticable as a means for determining the fitness of applicants or aspirants for these positions. '
Mr. Justice Maddox, in a recent proceeding before him involving the same question now before this court (Matter of Benchin v. Kempner, 69 Misc. Rep. 410), after enumerating the duties of these probation officers, uses the following language, forcibly and convincingly summing up- their duties and the character of their offices: From the foregoing it seems to me
The following language of the Court of Appeals, formulated in the Chittenden case, and approved in the Sweet case,- regarding the nature of confidential positions, seems peculiarly appropriate to the positions of probation officers now before the court: “ A candidate may be ever so competent and^ still lack many of the necessary elements of a trustworthy officer;» he-may be ever so learned and' still lacking in judgment and discretion; he may be discreet and still without character; he •may be honest• and yet meddlesome oand a person in whom you could not confide.”
Of course there may he those who may indulge in the presumption that the judicial officers intrusted with the appointment of such probation officers will act from political or other unworthy motives in making the appointments. As bearing nnon such a surmise we need only again quote from the opinion
Mr. Justice Crane, in his opinion, in disposing of the present case in the court below in favor of the relator, voiced the same sentiment in the following convincing words: “Of course, it can be said that if these positions are not filled from a competitive list after civil service examination they will be left open for merely political appointment. I cannot believe that in the serious and important work of caring for the welfare and future of the young boys and girls of this community that any one of the Magistrates or Justices of the Special Sessions will act with any other motive or purpose than to obtain the very best person possible for this delicate work. The earnestness and conscientiousness with which these Judges are doing their work refute such an inference or assertion, and if any mistake is made it will be a marked exception.”
As to any anticipated fear that improper motives may actuate the conduct of officers making appointments, it may be said that the Civil Service Law itself must be enforced by civil service Officials, themselves appointed to office, who may abuse their trust and act arbitrarily or show favoritism in many ways, as possibly at times has happened. The' argument, if carried to its logical and ultimate conclusion, would indeed
The record before the court on this appeal discloses other circumstances and reasons which, while not controlling upon the judicial action of the court, strongly tend to confirm me in the •conclusion that I have reached, that the positions in question cannot properly be placed in the competitive class. It appears that chapter 659 of the Laws of 1910, in which, as already appears, the positions of probation officers were expressly declared tó be confidential, was the outcome of a report of a special commission appointed pursuant to chapter 211 of the Laws of 1908, to investigate generally the courts of inferior criminal jurisdiction in cities of the first class and to report thereon and as to reforms and improvements therein. The commission reports, among other things, that - the work of the probation officers theretofore appointed, and who counsel for the respondent states in his brief were appointed from eligible civil service lists, was in the main- highly unsatisfactory, and that many of the appointees “ evidenced neither the capacity, industry nor disposition necessary for this important, work.” The commission also made the following specific recommendations: “ Each chief city magistrate shall have the authority to appoint at pleasure a chief probation-officer. Each board of magistrates. should have authority to appoint a- sufficient number of probation officers for the needs of this important branch of the work ■ of the Magistrates’ Courts. The probation officers hold a place of trust second only to that of the Justice or Magistrate, and they stand in a peculiarly confidential relation to the Court, and should be selected with the greatest possible care.”
The commission, as I read, their report, also recommended that the probation officers should be appointed without examination and should be removable at pleasure, “in order that the fullest responsibility shall be imposed upon the Justices and Magistrates.” '*
It further appears that the civil service commission of the city .of New York must have construed chapter. 659 of the Laws of 1910 as exempting the positions of probation officers from competitive examination, as shortly after the passage of this act
I have, therefore, reached the conclusion that the positions of probation officers are of a character and relationship to the judicial officers having the power and responsibility of making the appointments, which makes it impracticable to determine the merit and fitness of appointees by competitive or nomcom-petitive examination, and that they should, therefore, be placed in the exempt class, and that the order of the court below, directing such reclassification and "requiring that relator’s pay be certified, was correct and should be affirmed, with costs to the relator.
Order affirmed, with fifty dollars costs and disbursements.