People ex rel. Finnegan v. McBride

• Citation: 123 N.E. 374,226 N.Y. 252
• Parties: PEOPLE ex rel. FINNEGAN v. McBRIDE et al., Civil Service Commission.
• Decision Date: 22 April 1919
• Court: New York Court of Appeals

226 N.Y. 252

123 N.E. 374

PEOPLE ex rel. FINNEGAN

v.McBRIDE et al., Civil Service Commission.

Court of Appeals of New York.

April 22, 1919.

Appeal from Supreme Court, Appellate Division, First Department.

Mandamus by the people, on the relation of Mary A. Finnegan, against James E. McBride and others, Civil Service Commissioners of the City of New York. From an order of the Appellate Division (185 App. Div. 482,173 N. Y. Supp. 43) affirming, by a divided court, an order of the Special Term (104 Misc. Rep. 153,172 N. Y. Supp. 11) granting a peremptory writ of mandamus, defendants appeal. Affirmed.William P. Burr, Corp. Counsel, of New York City (Terence Farley, of New York City, of counsel), for appellants.

John W. Collopy, Jr., of New York City, for respondent.

Samuel H. Ordway and Henry W. Hardon, both of New York City, for intervener Civil Service Reform Association.

Charles D. Newton, Atty. Gen., on behalf of State Civil Service Commission and as amicus curiae.

POUND, J.

The positions of nurse and of supervising nurse in the department of health of the city of New York are classified as competitive positions in the civil service of the city. The nurses in the department of health when appointed are assigned to either one of two bureaus, one called the bureau of child hygiene, and the other the bureau of preventable diseases. Prior to August, 1917, the custom had grown up in the department of health of assigning some of these nurses in both bureaus to act as supervising nurses, with supervisory powers over the other nurses and a larger salary. Apparently such nurses had been assigned to act as supervising nurses without civil service examination, promotion, or otherwise. In August, 1917, the civil service commission announced that it would hold in November, 1917, a competitive examination for promotion to the position of supervising nurse, open to all of the nurses in the department who had served for a year or more.

Subdivision 20 of rule XV of the Municipal Civil Service Rules of the city of New York provides what weights shall be given to the different factors of mental tests and comparative conduct, efficiency, and seniority in examinations for promotion. Prior to the examination for supervising nurse it is alleged that it was announced that the various factors in the examination should have, and that they were given, different weights from those required by said rule, although the rule, which had the force of law, was not amended, but it does not appear as a fact that the rule was thus disregarded.

The examination was held on November 27, 1917, and practically all of the nurses in the department took it. The ratings of the candidates in this examination on the subject of experience were made, in part at least, on records kept by some of the acting supervising nurses who were also candidates in the same examination, but not in contemplation of such examination. After the examination had been held, but before the eligible list had been established, complaints were made, and defendants made an investigation, but afterwards the eligible list was established on March 4, 1918, divided into two parts, one for the bureau of child hygiene and the other for the bureau of preventable diseases. Thereafter, on April 6, 1918, after further complaints, the defendants made another investigation, in which the facts were gone into more fully, and an alleged conspiracy was discovered by which a nurse who was not among the first three on the list was given an opportunity to be appointed by waivers or withdrawals of those who stood ahead of her on the list. As the result of this investigation defendants found ‘that gross irregularities were permitted to creep into the matter of this examination,’ and that ‘because of said irregularities the results of said examination do not meet the requirements of the Constitution, the civil service law of the state, or of the rules and regulations of the municipal civil service commission of the city of New York adopted in accordance therewith,’ and thereupon the commission on April 6, 1918, ‘resolved that the promotion eligible lists of supervising nurses for the bureaus of child hygiene and preventable diseases, department of health promulgated March 4th, be and they are hereby canceled.’ On May 15, 1918, the defendants ordered a new promotion examination for supervising nurse, and notified the nurses that such examination would be held in June, 1918.

Thereupon the relator, who was No. 14 on the list entitled bureau of child hygiene, and who, if the lists were merged into one list, would be twenty-third on the merged list, commenced this proceeding, in substance asking that a writ of mandamus issue requiring the defendants, as the civil service commission of the city of New York, to reinstate the old eligible lists for promotion to the position of supervising nurse in the department of health which they had theretofore canceled, and to merge the same into one list. Thereafter the Supreme Court, at Special Term, granted the relief asked for on the ground that the commission had no power to set aside the eligible list, and, if it had the power, was not justified on the facts in taking such action.

On appeal by the defendants to the Appellate Division, the final order made below was affirmed by a divided court on the ground that the commission, being a body of limited jurisdiction, was functus officio and had no power to revoke a list which it had once promulgated.

[1] That the establishment of an illegal list sanctifies it in the presence of its own creator seems an impotent conclusion. The determination of the civil...