People ex rel. Schau v. McWilliams

• Decision Date: 01 May 1906
• Citation: 185 N.Y. 92,77 N.E. 785
• Parties: PEOPLE ex rel. SCHAU v. McWILLIAMS et al., Civil Service Com'rs et al.
• Court: New York Court of Appeals Court of Appeals

185 N.Y. 92

77 N.E. 785

PEOPLE ex rel. SCHAU

v.McWILLIAMS et al., Civil Service Com'rs et al.

Court of Appeals of New York.

May 1, 1906.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Certiorari by the people on the relation of John M. Schau, against John K. McWilliams and others, as municipal and state civil service commissioners, and others. From an order of the Appellate Division (91 N. Y. Supp. 675), sustaining the writ of certiorari, defendants appeal. Reversed.

Werner, J., dissenting.

Julius M. Mayer, Atty. Gen., and Samuel F. Moran, for appellants.

Edward R. O'Malley and Willard P. Smith, for respondent.

CULLEN, C. J.

On January 8, 1899, the civil service commission of Buffalo classified the position of battalion chief in the fire department in the competitive class. This action was approved by the state commission. On January 15, 1904, the fire commissioners requested the municipal commission to amend its classification and place the position in the exempt class. The municipal commission of April 27, 1904, recommended to the state commission an amendment of the rules providing that the position of battalion chief should be filled by promotion from the next lower grade in the department without competitive examination, but after a qualifying examination. The state commission held a meeting in reference to the proposed amendment, but never determined to make or to refuse it. On July 12, 1904, the municipal commission submitted a further amendment, which did not take the position of battalion chief out of the competitive class. This latter amendment was approved by the state commission. The relator, a captain in the fire department of Buffalo, was appointed battalion chief to fill a vacancy on July 11, 1904. The municipal civil service commission refused to certify to the relator's pay on the ground that the appointment was unauthorized. Thereupon the relator obtained a writ of certiorari to review the action of the municipal and state civil service commissions in classifying the position of battalion chief as competitive. The Appellate Division, by a divided court, reversed the action of the commissions on the ground that a competitive examination for the place was not practicable. From that order this appeal has been taken.

At the threshold of the discussion the objection is taken that the action of the civil service commissions is not subject to review by certiorari. That whether a particular position in the civil service of the state or its subdivisions is or is not exempt from examination, does or may present a judicial question within the constitutional provision requiring appointments thereto to be made ‘according to merit and fitness, to be ascertained so far as practicable by examinations, which, so far as practicable, shall be competitive,’ has been held by this court. Chittenden v. Wurster, 152 N. Y. 345, 46 N. E. 857,37 L. R. A. 809. Any other principle would allow the constitutional mandate to be violated with impunity. But granting that principle to its fullest extent, it by no means follows that the action of the civil service commission can be reviewed on certiorari. It is true that there are to be gound in the opinions of this court statements that such actions may be so reviewed. I can find, however, no case except the one now before us where the Supreme Court has assumed to reverse the action of the civil service commission on certiorari. It is a well-settled principle that the common-law writ of certiorari issues to review only the decisions of inferior judicial or quasi judicial tribunals. People ex rel. Copcutt v. Bd. of Health, 140 N. Y. 1, 35 N. E. 320,37 Am. St. Rep. 522;People ex rel. Trustees of Jamaica v. Supervisors Queens Co., 131 N. Y. 468, 30 N. E. 488;People ex rel. O'Connor v. Supervisors Queens Co., 153 N. Y. 370, 47 N. E. 790.

The question, therefore, is whether the action of the commissioners in classifying the relator's position in the civil service was judicial or quasi judicial. Here we must not be misled by names. The term ‘judicial’ is used in judicial literature, in opinions and text-books in two distinctly different senses. The action of an administrative or executive officer or board may involve the exercise of judgment and their action is quite often termed ‘judicial.’ Thus in Mills v. City of Brooklyn, 32 N. Y. 489, it was held that the municipality was not liable for the insufficiency of a system of public sewers, because the action of the municipal authorities in designing the system of sewerage was judicial. The word was here employed in an entirely different sense from that which is meant when we speak of judges as judicial officers, and the fact that public officers or agents exercise judgment and discretion in the performance of their duties does not make their action judicial in character so as to subject it to review by certiorari. People ex rel. Corwin v. Walter, 68 N. Y. 403;People ex rel. Second Ave. R. R. Co. v. Bd. of Commissioners, 97 N. Y. 37. Among the recent cases in this court on the subject is that of People ex rel. Steward v. Board of R. R. Commissioners, 160 N. Y. 202, 54 N. E. 697, where we upheld the action of the Appellate Division in reversing on certiorari the determination of the board of railroad commissioners granting the application of a railroad company for a certificate of public convenience and necessity. That decision proceeded on the ground that the commissioners were authorized and required to take evidence, and all the parties interested were entitled to notice and a hearing. The case represents the farthest limit to which we have extended the right of review of the acts of subordinate officers by certiorari. On the other hand, we have the later decisions of the court in People ex rel. Kennedy v. Brady, 166 N. Y. 44, 59 N. E. 701, and People ex rel. North v. Featherstonhaugh, 172 N. Y. 112, 64 N. E. 802,60 L. R. A. 768. In the first case, under a statute which provided that a person holding a position subject to competitive examination in the civil service could be removed or reduced in grade only after the reasons therefor had been stated in writing and filed with the head of the department, and the person so removed given an opportunity to make an explanation, it was held that the action of the head of the department in removing the subordinate was not judicial and was not subject to review by certiorari. It was there said by Judge O'Brien: ‘Official acts, executive, legislative, administrative, or ministerial in their nature or character, were never subject to reiew by certiorari. The writ could be issued only for the purpose of reviewing some judicial act. * * * The relator was entitled to an opportunity to make an explanation and this he had. He was entitled to have the reasons for his removal expressed in writing and filed in the department, and this provision of the statute was complied with. He was not entitled to be sworn or to introduce withnesses with respect to the truth or merits of the reasons which were assigned for his removal. He was not entitled to a trial or a judicial hearing, and, manifestly, there was no trial or judicial hearing before the commissioner.’ In the second case, under a statute of the city of Cohoes a commission was required to adopt plans and specifications for a public improvement, to give public notice and a hearing to all parties interested before final adoption of the plans and specifications. It was held that the determination of the commission sought to be reviewed was neither judicial nor quasi judicial, and therefore not subject to review by certiorari.

Tested by these rules, it seems to me that a determination of the civil service commissioners in classifying the position to which the relator aspired was in no sense a judicial one. It does not appear in the record that any testimony was taken by them, nor can I find in the statute any authority for the municipal commission to take testimony, though by section 6 the state commission is authorized to subpoena and examine witnesses in certain investigations, which seems scarcely to extend to the subject of making classifications. However that may be, the only legal evidence in the record is the rules established by the board of fire commissioners for the government of the department. The rest of the record is taken up with communications from various officials, the arguments of counsel, and the protests of citizens expressing their views and the views of officers of other municipalities upon the practicability or impracticability of subjecting applicants to competitive examination. I admit that the propriety of classifying this office as competitive or noncompetitive involves in a high degree the exercise of judgment, but the judgment is that of the legislative or executive officer rather than that of the judge. Its proper determination involves considerations which cannot well be the subject of judicial inquiry. I do not assert that the action of the commissioners in failing to so place offices which should, under the constitutional provision, be placed in the competitive class, is not subject to control, but, as said by Judge Martin in People ex rel. Sweet v. Lyman, 157 N. Y. 368, 375,52 N. E. 132, 134: ‘The obvious purpose of this provision (the constitutional one) was to declare the principle upon which promotions and appointments in the public service should be made, to recognize in that instrument the principle of the existing statutes upon the subject and to establish merit and fitness as the basis of such appointments and promotions in place of their being made upon partisan and political grounds. It then declares that merit and fitness shall be ascertained by examinations, and also the extent to which they shall be thus determined. The extent to which examinations are to control is declared to be only so far as practicable. This language clearly implies that it is not entirely...