People ex rel. Balcom v. Mosher

• Decision Date: 01 May 1900
• Citation: 57 N.E. 88,163 N.Y. 32
• Parties: PEOPLE ex rel. BALCOM v. MOSHER et al., Board of Com'rs.
• Court: New York Court of Appeals Court of Appeals

163 N.Y. 32

57 N.E. 88

PEOPLE ex rel. BALCOM

v.MOSHER et al., Board of Com'rs.

Court of Appeals of New York.

May 1, 1900.

Appeal from supreme court, appellate division, Third department.

Application by George N. Balcom for mandamus against William H. Mosher and others. From an order of the appellate division reversing an order granting the writ (61 N. Y. Supp. 452), relator appeals. Affirmed.

Appeal from an order of the appellate division, in the Third department, reversing an order of the special term granting a peremptory writ of mandamus commanding the defendants to appoint the relator to the position of superintendent of streets and city property of the city of Binghamton for a probationary term of two months. The charter of that city provides that the mayor shall appoint four commissioners, who shall constitute a board to be known as the ‘Board of Street Commissioners of the City of Binghamton’; that it shall have the management and control of the street department; and its powers and duties are defined. It then declares that on the second Tuesday in February of every alternate year the board shall appoint a superintendent of streets and city property for the term of two years, who shall receive an annual salary of $1,000, and defines the duties of the superintendent, which are important, and are of great interest to the welfare and proper management of the streets and property of the city. He is also required to give a bond, to be approved by the mayor, for the faithful discharge of his duties. Sections 1, 2, 3, 4, 5. The position of superintendent became vacant February 1, 1899, by the expiration of the term of the previous incumbent. In the following April the municipal civil service commission certified to the board of street commissioners the names of three persons appearing upon the eligible list prepared by the commission as the result of a competitive examination therefor. Upon the list were the names of Bolles, Balcom, and Seabury. Bolles stood highest, Balcom next, and Seabury last. Balcom and Seabury were both honorably discharged soldiers of the army during the late Civil War, and as such wereentitled to preference over Bolles. Rule 14 of the local civil service commission, which was approved by the mayor and by the state civil service commission in 1898, provided that, when any officer having the power of appointment to or employment in any position in Schedule B (the competitive class) so requests, the commission shall certify to him the names, as soon as practicable, of three persons having the highest standing upon the eligible list, and the appointing officer shall thereupon appoint to the vacant position one of the three persons so certified to him, subject to any and all laws of the state of New York in relation to honorably discharged soldiers or marines of the Civil War, giving them preference under the civil service rules. On April 19, 1899, the legislature passed an act in relation to the civil service of the state, which took effect immediately. Chapter 370, Laws 1899. By section 13 it is provided: ‘Appointments shall be made to or employment shall be given in all position in the competitive class that are not filled by promotion, reinstatement, transfer or reduction under the provisions of this act and the rules in pursuance thereof, by appointment of those graded highest in open competitive examinations conducted by the state or municipal commission, except as herein otherwise provided.’ The state civil service rule relating to this subject is, in effect, a repetition of the statute itself. Rule 8. That the appointment of a superintendent is to be controlled by the statute of 1899, if valid, seems to be conceded by both parties. The special term held that the civil service law of 1899 was constitutional, and that it required the street commissioners to appoint to the office of street superintendent the veteran who stood highest upon the eligible list furnished by the local civil service commissioners. Upon appeal the appellate division held that the act of 1899 was unconstitutional so far as it required the appointment of the person standing highest upon such list, and reversed the judgment of the special term.

S. H. Ordway, for appellant.

A. M. Sperry, for respondents.

MARTIN, J. (after stating the facts).

The only controversy upon this appeal relates to the constitutionality of the civil service statute of 1899. The question involved is the power of the legislature to abrogate the right conferred by the state constitution upon the local authorities of a city to appoint such of its officers as are not directed by the constitution to be elected or otherwise appointed. Section 2, art. 10. The office of superintendent of streets and city property of the city of Binghamton falls within that statute, and, if valid, it is controlling as to the appointment of an incumbent of that office. The provisions of the constitution by which its validity is to be tested are section 2 of article 10 and section 9 of article 5. Section 2 provides: ‘All city * * * officers, whose election or appointment is not provided for by this constitution, shall be elected by the electors of such cities, * * * or of some division thereof, or appointed by such authorities thereof, as the legislature shall designate for that purpose,’-while section 9 declares: ‘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 preference in appointment and promotion, without regard to their standing on any list from which such appointment or promotion may be made.’

In interpreting the constitution, it is to be considered as a whole, complete in itself. Force is to be given to every provision contained in it, and each clause explained and qualified by every other. The words used must be presumed to have been employed in their natural and ordinary meaning, and if different portions seem to be in conflict they must be harmonized, if possible, and that construction adopted which will render every provision operative, rather than one which will make some idle or nugatory. Railway Co. v. Anderson, 3 Abb. N. C. 434;People v. Angle, 109 N. Y. 564, 575,17 N. E. 413;People v. Roberts, 148 N. Y. 360, 367,42 N. E. 1082,31 L. R. A. 399;People v. Rathbone, 145 N. Y. 434, 440,40 N. E. 395,28 L. R. A. 384;Smith v. Board of Sup'rs, 148 N. Y. 187, 189,42 N. E. 592; Cooley, Const. Lim. 58. Therefore these two provisions should be construed together, giving force to both, and to each should be accorded its appropriate place and proper effect, with some office to perform, and at the same time they should be so construed as to operate harmoniously. We find no repugnancy between these sections of the constitution. Section 2 has been a part of the organic law of the state for many years, and obviously it was not intended to be superseded or changed, as no language was employed in the constitution of 1894 to indicate any such purpose. Moreover, the proceedings of the constitutional convention show that it was intended to be continued in force in its existing form. Section 9 was an amendment adopted in 1894. Both being part of the present constitution, the most that can be claimed is that they should be read and construed together. Reading the amendment of 1894 into section 2, it, in effect, provides that all city officers whose election or appointment is not otherwise provided for by the constitution shall be appointed by such authorities thereof as the legislature shall designate for that purpose, which appointments shall be made according to merit and fitness, to be ascertained by competitive examinations, so far as practicable. When thus read, it becomes manifest that under the constitution the power of appointment still remains in such local authorities as the legislature has designated for that purpose. No alteration in that respect has been made or attempted. The only change effected by the amendment of 1894 is the requirement that the local authorities in making such appointments shall make them ‘according to merit and fitness,’ to be ascertained by examinations, competitive or otherwise. The amendment relates only to the qualifications which appointees shall possess to justify their appointment under section 2, and the manner in which they shall be ascertained. Thus the power of appointment is still vested in the local authorities of the various municipalities of the state, and the amendment has wrought no change as to the officers or bodies who are to make such appointments. The result is the same whether these sections are read together or separately. Section 2 in direct terms provides that such appointments shall be made by the local authorities. Section 9 plainly recognizes that method of appointment by providing for appointments in the civil service without any designation, express or implied, of any new or other authority by which they are to be made. All that is provided by that section is that appointments made by the proper appointing power are to be according to merit and fitness, but it in no way attempts to change or interfere with the authorities who are to make them. These provisions of the constitution show quite conclusively that the appointment of city officers whose election or appointment is not otherwise provided for by the constitution must still be made by such local authorities of the city as the legislature has designated for that purpose. While the legislature is authorized to designate the local authorities who are to appoint, yet, when they are thus designated their...