Flaherty v. Milliken

• Citation: 86 N.E. 558,193 N.Y. 564
• Parties: FLAHERTY, Sheriff of Kings County, v. MILLIKEN et al.
• Decision Date: 15 December 1908
• Court: New York Court of Appeals

193 N.Y. 564

86 N.E. 558

FLAHERTY, Sheriff of Kings County,

v.MILLIKEN et al.

Court of Appeals of New York.

Dec. 15, 1908.

Appeal from Supreme Court, Appellate Division, Third Department.

Application of Michael J. Flaherty, as Sheriff of the County of Kings, for a mandatory writ of mandamus to Charles J. Milliken and others, Civil Service Commissioners of the state. From an order of the Appellate Division (111 N. Y. Supp. 1119), affirming an order of the Special Term, denying, as matter of law and not in discretion, the application, the sheriff appeals. Reversed in part.

Henry F. Cochrane, for appellant.

Wm. S. Jackson, Atty. Gen. (Timothy I. Dillon, of counsel), for respondents.

CULLEN, C. J.

This proceeding was instituted by the sheriff of the county of Kings to compel the respondents, the state civil service commissioners, to certify to the pay roll of certain assistant deputy sheriffs, jail keepers, van drivers, and matrons in his office. The application was resisted on the ground that these subordinates had been appointed in violation of the rules and regulations of the civil service commission. By chapter 705, p. 1750, Laws 1901, the office of sheriff was made a salaried one from the 1st of January then ensuing, and by section 2 of the act the sheriff was authorized to appoint various subordinates in his office at specified salaries. All the appointees whose rights are in controversy in this proceeding hold positions which under the statute the sheriff was authorized to fill. In 1900 the jurisdiction of the civil service commission was extended to the sheriff's office of Kings county, the rules of which commission placed in the exempt class 24 subordinate officers or employés who are paid wholly from the salary or official emoluments of the sheriff, no part of which is to be returned or accounted for as public funds. When the office became a salaried one the rules of the commission were amended so as to read: ‘Resolved, that the classification of positions in the exempt class in Kings county be amended by striking out therefrom the following: ‘In the office of the sheriff twenty-four subordinate officers and employés who are paid wholly from the salary or official emoluments of the sheriff, no part of which is to be returned or accounted for as public funds, * * *’ and by inserting in lieu thereof the following: ‘In the office of the sheriff one under sheriff, eight deputy sheriffs and counsel, one chief clerk, one secretary and one jail warden.’' The other positions in the office, which included all those now before us, were made subject to be filled by competition, in the ordinary method. The relator ignored the action of the civil service commission, and made appointments to these positions solely of his own volition, and the question presented is as to the validity of such appointments. The Special Term held the appointments invalid, and denied the relator's application. That decision has been affirmed at the Appellate Division by a divided court. By section 9, art. 5, of the present Constitution it is ordained 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.’ By Civil Service Law (Laws 1899, p. 797, c. 370) § 6, the state civil service commission is empowered to prescribe, amend, and enforce suitable rules and regulations for carrying into effect the provisions of the act and of the section of the Constitution quoted. By section 2 of the statute the civil service of the state ‘or any of its civil divisions or cities includes all offices and positions of trust or employment in the service of the state or of such civil division or city,’ with certain exceptions immaterial to this discussion.

The question which lies at the threshold of this controversy is whether the deputies, assistant deputies, and other appointees of the sheriff are, as far as they discharge the duties of the sheriff relating to civil process, in the service of the county, or in the service of the sheriff personally, though they are undoubtedly public officers and liable to criminal punishment as such for official misconduct. If they are not in the service of the county, but in that of the sheriff, the positions held by them fall neither within the constitutional provision, nor within the purview of the statute. The office of the sheriff is of great antiquity and peculiar. Before the office in Kings county was made a salaried one, what I may term the ‘civil business' of the sheriff was plainly and exclusively his own. He, not his deputies or subordinates, was responsible for their negligence or misconduct in the execution of civil process, except in the case of independent torts on the rights of third parties, where both he and his deputies were liable as joint tort-feasors. It is said in Crocker on Sheriffs (page 147): ‘The sheriff is identical, in contemplation of law, with all his officers, and is civilly and directly responsible for their acts, defaults, torts, extortions, or other misconduct,...