Andresen v. Rice

• Decision Date: 08 March 1938
• Citation: 277 N.Y. 271,14 N.E.2d 65
• Parties: ANDRESEN v. RICE et al.
• Court: New York Court of Appeals Court of Appeals

277 N.Y. 271

14 N.E.2d 65

ANDRESEN

v.RICE et al.

Court of Appeals of New York.

March 8, 1938.

Mandamus proceeding by Hans Andresen, Jr., against William Gorham Rice and others, as the Civil Service Commission of the State of New York, and others. From an order of the Appellate Division, Third Department, 251 App.Div. 917,297 N.Y. 552, which affirmed an order of the Special Term denying an order of mandamus, the petitioner appeals.

Orders modified, and as so modified affirmed.

LEHMAN and O'BRIEN, JJ., dissenting. Appeal from Supreme Court, Appellate Division, Third Department.

Abraham Bernard King and Joseph F. Ryan, both of New York City, for appellant.

John J. Bennett, Jr., Atty. Gen. (Henry Epstein and Patrick H. Clune, both of Albany, of counsel), for respondents.

CRANE, Chief Judge.

In every civil service case we must start with the provision of the State Constitution, which cannot be repeated too often, as it is the groundwork upon which all legislation on the subject is built. It steers the course which the Legislature must follow: ‘Appointments and promotions in the civil service of the state, and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive. * * * Laws shall be made to provide for the enforcement of this section.’ The Civil Service Law, Laws 1909, c. 15, Consol.Laws, c. 7, was passed to carry out this provision of the Constitution of 1894, and which is now section 6 of article 5 of the Constitution.

The service of the State is classified by the Civil Service Law in section 9, which reads: ‘The civil service of the state and of each of its civil divisions and cities shall be divided into the unclassified service and the classified service. The unclassified serviceshall comprise all elective officers, all offices filled by election or appointment by the legislature on joint ballot; all persons appointed by name in any statute; all legislative officers and employees, all offices filled by appointment by the governor, either upon or without confirmation by the senate, except officers and employees in the executive offices; all persons appointed by the secretary of state subject to the approval of the governor; all elections officers, the head or heads of any department of the government, all persons employed in or who seek to enter the public service as superintendents, principals or teachers in a public school or academy or in a state normal school or college. * * * The classified service shall comprise all positions not included in the unclassified service.’

The State police, provided for by article 9-A of the Executive Law, Consol. Laws, c. 18, § 92 et seq., are not in the unclassified service, but are in the classified. The classified service is divided into four classes, the exempt class, the competitive class, the noncompetitive class, and, in cities, the labor class. The state police have not been put in the exempt class, nor are they in the labor class. They, therefore, fall within either the competitive class or the noncompetitive class, according to section 13 of the Civil Service Law. Subdivision 4 of that section enacts that there may be included in the exempt class all subordinate offices for the filling of which competitive or noncompetitive examinations may be found to be not practicable, but that no office or position shall be deemed to be within the exempt class unless it is specifically named in such class in the rules, and the reasons for such exemption stated separately in the annual reports of the Commission. Appointments in the exempt class shall be made without examination. So much for the Constitution and the Civil Service Law passed in accordance with it.

The fundamental purpose running through our civil service provisions is that, so far as practicable, positions in the state service shall be filled by competitive examinations. Noncompetitive appointments are the exception and not the rule. Matter of Barthelmess v. Cukor, 231 N.Y. 435, 132 N. E. 140, 16 A.L.R. 1404. The Legislature, in the unclassified service, has placed those offices for which it is apparent that civil service examinations could not be held. Even here the Legislature has not unlimited power, and could not place in the unclassified service those positions for which it was quite apparent competitive examinations could be held. Matter of Carow v. Board of Education, 272 N.Y. 341, 6 N.E.2d 47;Matter of Ottinger v. Civil Service Comm., 240 N.Y. 435, 148 N.E. 627;Hale v. Worstell, 185 N.Y. 247, 77 N.E. 1177,113 Am.St.Rep. 895. As stated in the Ottinger Case, the Civil Service Law may not cover all positions which have been or are to be created; neither is the competitive examination which may be required by the Constitution limited solely to those of the Civil Service Commission provided by the Legislature. In other words, the latter body is always free, so long as it carries out the spirit of the Constitution, to provide examinations or competitive examinations by others than the Civil Service Commission. Thus, in the case cited, we said, through Judge Cardozo: ‘The Legislature in obedience to that command [Constitution] has enacted the Civil Service Law. We have no thought to suggest that with the enactment of that law its power was exhausted. It may adopt some other agency, and even classify for itself, if its classification can reasonably be regarded as a genuine endeavor to extend the constitutional test to the limit of the practicable (People ex rel. Schau v. McWilliams, 185 N.Y. 92, 99 ; Matter of Barthelmess v. Cukor, 231 N.Y. 435, 443 [132 N.E. 140, 16 A.L.R. 1404]). What that limit is, may not be determined as an abstraction, or irrespective of experience. The very fact that there exists and has long existed a commission dealing with exemptions in the setting of the concrete instance, is something not to be ignored when a whole bureau or department is declared exempt in gross. The Legislature retains the power of selection among means appropriate to the end, but choice must rest upon reason, and not upon caprice. To know the limit of the practicable, we must give heed to methods and institutions that are functioning in practice.’ 240 N.Y. 440, 148 N.E. 628.

In providing for the state police in article 9-A of the Executive Law, the Legislature has in effect provided for the appointment of members of the force by the superintendent without competitive examinations. The superintendent is directed to make rules and regulations and the applicant must pass a physical and mental examination based upon standards provided by these rules and regulations. Section 94, subd. 2. It may be well to quote this provision: ‘No person shall be appointed to the state police force unless he shall be a citizen of the United States, between the ages of twenty-one and forty years, able to ride, of sound constitution and good moral character, nor until he shall have passed a physical and mental examination based upon standards provided by the rules and regulations of the superintendent. Appointment and reappointment to the force shall be for a term of two years.’

In the little pamphlet published by the Executive Department, and submitted on the argument, we find this to be stated as part of the regulations:

‘The physical examination is conducted by the division surgeon inspector, assisted by a necessary number of physicians. Successful applicants in the physical examination are required to take a written intelligence test.

‘An oral board consisting of the superintendent and certain of his staff officers then examine each candidate individually for the purpose of ascertaining ability to reason, judgment, quality of language, attention to detail, self reliance, appearance and manner. Upon each of these points, he is marked on a comparative scale.

‘An eligible list of successful candidates is then established in order of individual rating.’

There is no claim that these examinations are competitive or that the examinations are reduced to writing where possible, so a check can be made upon the rating given. The superintendent and his staff make the examinations and appoint from the list established according to their own good judgment. The respondent here does not claim that these examinations are competitive in the sense that other police officers are given competitive examinations in the cities of our state. The appointing power holds the examination and makes the choice, which, of course, in good faith he thinks should be made. There is much to be said for this method of selection, and the results, as we know, have probably been good, but the question still remains: Is it in accordance with the Executive Law as passed by the Legislature, and, if it is, is that law constitutional?

While the Executive Law from which I have quoted says that the superintendent shall make rules and regulations according to which a physical and mental examination shall be conducted, it does not state that he shall conduct the examination. I am inclined to think, however, that this was intended. If this were not so, something would have been said in this article about the Civil Service Commission or the Civil Service Law. In fact, the respondent here claims that no examinations are really required or necessary, as the Legislature, in passing article 9-A of the Executive Law, really intended to place the state police in the unclassified service. Even if this were done, it might not answer the requirements of the Constitution. Matter of Carow v. Board of Education of City of New York, 272 N.Y. 341, 6 N.E.2d 47. The question would still remain whether the Legislature had determined that it was impracticable to hold competitive examinations for the state police and whether or not its...