People ex rel. Kastor v. Kearney
| Decision Date | 02 October 1900 |
| Citation | 58 N.E. 14,164 N.Y. 64 |
| Parties | PEOPLE ex rel. KASTOR v. KEARNEY, Commissioner. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from supreme court, appellate division, First department.
Mandamus by the people, on relation of W. H. Kastor, against Henry S. Kearney, commissioner of public buildings, lighting, and supplies of the city of New York, to compel plaintiff's reinstatement as senior clerk in the department of public buildings. From an order of the appellate division reversing an order of the special term denying the writ (62 N. Y. Supp. 1097), relator appeals. Affirmed.
John Whalen, Corp. Counsel (Theodore Connoly, of counsel), for appellant.
Julius M. Mayer, for respondent.
The relator stood first on the eligible list of the municipal service commission for appointment as senior clerk in the department of public buildings. This was in the classified service. The defendant appointed him senior clerk of the department, to take effect June 13, 1899, and the relator entered upon his duties. On June 17, 1899, the defendant discharged him, assigning no cause, and giving him no hearing. He demanded and was refused reinstatement, and moved for a writ of mandamus at special term. The motion was denied. The appellate division reversed the order denying the motion, and awarded the writ for the reinstatement of the relator.
At the time of his appointment, chapter 370, Laws 1899, was in force, and, so far as its provisions are applicable to the city of New York, they supersede the provisions of its charter inconsistent therewith. People v. Dalton, 158 N. Y. 175, 52 N. E. 1113. Section 8 provides: ‘All appointments or employment in the classified service shall be for a probationary term, not exceeding the time fixed in the rules.’ The act provides for the making of rules, but none had been made. The appellate division assumed that the rules in force, made under section 124 of the charter, applied until superseded by new rules. Both parties concede this assumption to be correct under section 27 of the act. Under section 124 of the charter the municipal civil service commission was authorized to provide ‘for a period of probation before an appointment or employment is made permanent.’ The commission had provided by rule 35 that ‘all employment in positions under any of the schedules, except Schedule G, shall be provisional, and such provisional service shall continue six months except in Schedule C. when it shall be for one month, during which period the person so employed may at any time be peremptorily discharged from service.’ The relator's office was not in either Schedule G. or C. The rule seems to limit the power of peremptory discharge to persons appointed under Schedule C. The appellate division held that the last clause of this rule was void, as in excess of the power granted by section 124 of the charter. In this view we concur.
‘A probationary term’ or ‘a period of probation’ implies definite or stated length of duration, especially so when such term or period is to be provided in advance. It is not ‘any time’ within a fixed length of duration, unmeasured by the rules, and measurable by the pleasure or will of the appointing power. ‘Probation’ or ‘probationary’ implies the purpose of the term or period, but not its length. The rules could fix its length, for so the statute provides, but could not make its length provisional in point of time, for that would be to unfix it, or annex an unauthorized item. While the primary purpose of the law is to secure efficient service, yet the probationary appointee is thereby secured an experimental trial for the period prescribed by the law or the rules made in pursuance of the law, and he is not to be condemned pending the trial, before the time given him to show his fitness has expired, except after an opportunity to explain under section 1543 of the charter. In People v. Lyman, 157 N. Y. 368, 52 N. E. 132, the appointee served out his probationary term, less one day, and the case was decided upon other grounds, and does not apply. The case, then, is that the relator was appointed for a probationary term of six months, and the provision of rule 35 providing for his peremptory discharge during his probationary term, without notice of charges or opportunity to be heard, was invalid, and therefore the relator's peremptory discharge under that provision of the rule was unlawful. The order should be affirmed, with costs.
It is not unlikely that the public interests would be best subserved it the statute should provide that during the probationary period the person so employed might be peremptorily discharged from the service, but, as it does not, I agree with Judge LANDON that so much of the rule as attempts to confer upon the appointing power that authority is invalid.
The relator, having passed the civil service examination, was appointed senior clerk and bookkeeper in the department of public buildings, lighting, and supplies by the defendant as commissioner. After serving a few days, the relator was discharged, and he is now seeking mandamus for his reinstatement. His right to the relief sought depends upon the validity of rule 35 of the municipal civil service commission of the city of New York. It provides as follows: ‘All employment in positions under any of the schedules, except Schedule G, shall be provisional, and such provisional services shall continue six months, except in Schedule C, when it shall be for one month, during which period the persons so employed may, at any time, be peremptorily discharged from service.’ The statute in force at that time provided that ‘all appointments or employments in the classified service shall be for a probationary term not exceeding the time fixed in the rules.’ Laws 1899, c. 370, § 8. The rule, as we have seen, rpovides for a provisional service for six months, but authorizes the discharge of the person employed at any time during that period. It is claimed that the authority to discharge at any time during the provisional service of six months is obnoxious to the statute, and therefore to that extent the rule is void. I do not so read the statute. The provisions of the statute require all appointments or employments to be for a probationary term, but that term must not exceed the time fixed in the rules. The statute in no place states that the time shall be for six months, or for a period fixed by the rules; it provides that it shall not exceed that time. It may, therefore, be for a shorter time. ‘Probation,’...
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