Chittenden v. Wurster

• Decision Date: 20 April 1897
• Citation: 152 N.Y. 345,46 N.E. 857
• Parties: CHITTENDEN et al. v. WURSTER, Mayor, et al.
• Court: New York Court of Appeals Court of Appeals

152 N.Y. 345

46 N.E. 857

CHITTENDEN et al.

v.WURSTER, Mayor, et al.

Court of Appeals of New York.

April 20, 1897.

Appeal from supreme court, appellate division, Second department.

Action by Simeon B. Chittenden and others against Frederick W. Wurster, mayor of the city of Brooklyn, and others, to restrain the payment of salaries to certain employés of the city on the ground that their appointments were illegal under article 5, § 9, of the constitution of 1894. From a judgment of the appellate division, Second department (43 N. Y. Supp. 1035), affirming a judgment of the special term in favor of the plaintiffs, defendants appeal. Reversed.

Per O'Brien, J., dissenting.

Joseph A. Burr, for appellants.

Edward M. Shepard, Henry Yonge, and J. Warren Greene, for respondents.

HAIGHT, J.

This action was brought by taxpayers of the city of Brooklyn against the fiscal officers of the city and 11 individuals who were appointees in the various departments of the city government to enjoin and restrain the fiscal officers of the city from paying to any of the appointees the salaries earned by them, respectively. The 11 employés were appointed to the positions held by them since the 1st day of January, 1895, without competitive examination; and the claim is that such examination in each case was practicable, and that every appointment without such examination was in violation of the provisions of the constitution which went into force on that day.

Civil service first had its introduction in this state in the year 1883 by the passage by the legislature of chapter 354. That act has been several times amended. It related to appointments to be made in the civil service in the state and cities, and at the time of the adoption of the new constitution in substance provided that the governor, with the advice and consent of the senate, should appoint three persons as civil service commissioners of the state, that they should aid him in preparing suitable rules for carrying the provisions of the act into effect, and, when the rules should be promulgated, it should be the duty of all officers of the state, in the departments and offices to which such rules relate, to aid in all proper ways in carrying the rules into effect. The rules were required to provide and declare, as nearly as the conditions of good administration will warrant: ‘(1) For open competitive examinations for testing the fitness of applicants for the public service now classified or to be classified hereunder. Such examinations shall be practical in their character, and, so far as may be, shall relate to those matters which will fairly test the relative capacity and fitness of the persons examined to discharge the duties of that service into which they seek to be appointed. (2) All the offices, places and employments so arranged or to be arranged in classes, shall be filled by selections from among those graded highest as the results of such competitive examinations. * * * (7) There shall be noncompetitive examinations when competition may not be found practicable.’ It was made the duty of the governor, within four months, to cause to be arranged in classes the several clerks and persons employed or being in the public service, for the purposes of an examination, and he was required to include in one or more of such classes, so far as practicable, all subordinate places, clerks, and officers in the public service of the state. Thereafter no officer or clerk was permitted to be appointed, admitted, or promoted in either of the classes arranged by the governor until he had passed an examination, or had shown himself to be exempted from such examination. It was made unlawful for the comptroller to draw his warrant for the payment of any salary or compensation to any officer, clerk, or other person in the public service of the state, in either of the classes arranged by the governor, who was not certified as having been appointed in pursuance of the law, and of the rules and regulations made thereunder. In each of the cities of the state in which rules and regulations had been adopted under the provisions of the act, every officer thereof whose duty it was to sign or countersign warrants was prohibited from signing or issuing any warrant, on the treasurer or other disbursing officer of such city, for the payment of the salary of any person in its service whose appointment had not been made in pursuance of the provisions of the act, and of the rules in force thereunder, and any sums paid contrary to the provisions of the act, it was provided, might be recovered from any officer signing or countersigning warrants for the payment of such salaries, and from the sureties on his official bond, in an action in the supreme court maintained by any resident citizen taxpayer. Section 7, as amended by Laws 1894, c. 681. It was further provided that (section 8): ‘The mayor of each city in this state is authorized, and is hereby directed, to prescribe such regulations for the admission of persons into the civil service of such city as may best promote the efficiency thereof and ascertain the fitness of candidates in respect to character, knowledge and ability for the branch of the service into which they seek to enter, and for this purpose he shall, from time to time, employ suitable persons to conduct such inquiries and make examinations, and shall prescribe their duties and establish regulations for the conduct of persons who may receive appointments in the said service. And the regulations so to be prescribed shall, among other things, provide and declare as in the second subdivision of the second section of this act is provided and declared in reference to regulations for admission to the civil service of the state. Within two months after the passage of this act it shall be the duty of each of said mayors, in and by such regulations, to cause to be arranged in classes the several clerks and persons employed or being in the public service of the city of which he is mayor, and he shall include in one or more of such classes, so far as practicable for the purposes of the examination herein provided for, all subordinate clerks and officers in the public service of the said city to whom his power under this act extends. After the termination of three months from the passage of this act no officer or clerk shall be appointed, and no person shall be admitted to or be promoted in either of the said classes now existing or that may be arranged hereunder pursuant to said rules, until he has passed an examination, or is shown to be exempted from such examination, in conformity with such regulations. Such regulations hereafter prescribed and established, and any subsequent modification thereof, shall take effect upon the approval of the New York civil service commission. * * * It shall be the duty of all those in the official service of any such city to conform to and comply with any regulations made pursuantto this act, and to aid and facilitate in all reasonable and proper ways the enforcement of all regulations and the holding of all examinations which may be required under the authority conferred by this section. * * * And all examinations herein authorized shall be public, and all regulations shall be published.’ As amended by Laws 1884, c. 410.

Under the provisions of this statute it was made the duty of the mayor of the city of Brooklyn to arrange in classes all clerks and persons employed in the public service of the city, and to include in one or more of such classes, so far as practicable for the purposes of a competitive examination, all the subordinate clerks and officers in the public service of the city. In compliance with these provisions, the Honorable Seth Low, then mayor of the city, did prescribe rules and regulations for the admission of persons into the public service of the city, and did arrange a class, known as ‘Schedule A,’ in which were enumerated the positions in which he did not deem a competitive examination practicable, and another class, known as ‘Schedule B,’ containing positions in which he required a competitive examination as a condition precedent to an appointment. Among others, he classified as positions in Schedule A that of clerk to the committees of the board of aldermen, warrant clerk in the department of finance, dockmaster in the department of finance, chief clerk in the department of audit, and law clerk in the department of law. These rules and regulations went into operation under his administration, and ever since have continued to be in force, except as to the following modifications made by his successors: Mayor Charles A. Schieren classified the clerk in the department of health, the surveyor in the department of assessments, the secretary in the department of buildings, and the deputy license clerk in the city clerk's office, in Schedule A; and Mayor F. W. Wurster, one of the defendants herein, classified the license fee collector in department of fire in Schedule A. The head of each of these departments was required to and has given the usual official bond. The 11 appointees, defendants, were appointed to the positions above named, classified in Schedule A. They were not, therefore, required to pass a competitive examination, unless the classifications made by the mayors were in conflict with the provisions of the civil service statute, or violative of the provisions of the constitution.

The constitution (article 5, § 9) provides that ‘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; provided, however, that honorably discharged soldiers and sailors from the army and navy of the United States in the late Civil War, who are citizens and residents of this state, shall be entitled to...