People ex rel. McClelland v. Roberts

• Decision Date: 18 February 1896
• Citation: 148 N.Y. 360,42 N.E. 1082
• Parties: PEOPLE ex rel. McCLELLAND v. ROBERTS, Comptroller.
• Court: New York Court of Appeals Court of Appeals

148 N.Y. 360

42 N.E. 1082

PEOPLE ex rel. McCLELLAND

v.ROBERTS, Comptroller.

Court of Appeals of New York.

Feb. 18, 1896.

Appeal from supreme court, general term, Third department.

Application by John William McClelland for a writ of mandamus to compel James A. Roberts, as comptroller of the state of New York, to draw his warrant for the payment of relator's salary as clerk in the office of collector of canal statistics. From a judgment of the general term (36 N. Y. Supp. 677), affirming a judgment of the special term (34 N. Y. Supp. 641) denying such application, relator appeals. Affirmed.

Martin, J., dissenting.

Myer Nussbaum, for appellant.

Matthew Hale, for respondent.

O'BRIEN, J.

The relator, in the month of April, 1895, was appointed to the position of clerk to the collector of canal statistics by the superintendent of public works of the state at a salary of $65 per month. When he applied for his monthly compensation, the defendant, as comptroller of the state, refused to audit or pay the same, and the relator, thereupon, applied for a peremptory writ of mandamus, to be directed to the comptroller, commanding him to draw his warrant for the payment of the claim. The application for the writ was denied (34 N. Y. Supp. 641), and the order denying the same affirmed at general term (36 N. Y. Supp. 677).

The only question involved in this appeal is whether, upon the undisputed facts disclosed upon the application, the relator was entitled to the writ. It is admitted that the relator was appointed to the position without having passed the civil service examination, and that his name has never been certified to the comptroller by the civil service commission, and it was for that reason that the comptroller refused to pay the claim. The legal question thus presented has been so fully and ably discussed in the courts below that we feel relieved from the necessity of much further argument in support of the conclusions there indicated. Indeed, there is very little further to be said, upon the important and interesting subject which is involved in the controversy, beyond a brief statement of the grounds upon which we think the order below should be sustained.

The statute of this state, commonly known as the ‘Civil Service Law’ (chapter 354, Laws 1883, as amended by chapter 681, Laws 1894), not only required that clerks and other subordinates in the civil service of the state should be appointed or selected from lists, constituted as therein provided, after competitive examination, but that it should be unlawful for the comptroller to pay the compensation of any clerk in the civil service who had not been appointed pursuant to the provisions of the law, and whose name had not been certified to him by the civil service commission. It is not necessary to subject these statutes to a very close analysis in order to determine the general purpose and policy of the legislature with reference to appointments and promotions in the civil service. It is too plain for argument that these enactments require appointments to be made from the civil service lists, made up in the manner indicated in the statute, and in the rules formulated by the commission under the authority of the law; and, in order to insure obedience to the system on the part of the appointing power, the chief financial officer of the state was prohibited from making payment to any clerk of his salary or compensation who had not been appointed as required by the law. It is quite clear, also, that the civil service statutes constitute a general system of statute law, applicable to appointments and promotions in every department of the civil service of the state, with such exceptions only as are specified in the statute itself. It was held, in the case of People v. Angle, 109 N. Y. 564, 17 N. E. 413, that the law could not apply to the department of public works for the reason that the constitution, as then in force, vested in the head of that department the exclusive power and duty of appointment and removal, and that any restriction upon such power imposed by the legislature, through the civil service act, was inoperative. That case did not hold that the civil service act, or any part of it, was unconstitutional. The power of the legislature to enact the law as it appears on the statute book has never been doubted or questioned, and the only point raised in that case was with respect to its application to a particular department of the state government, under the constitution as it then existed; and it was held that, notwithstanding the general language and scope of the act, and the purpose of the legislature in enacting a general law, without excluding any department from its operation, the law could not reach the superintendent of public works, for the reason that the words of the constitution would not permit it. If the fundamental law which governed the question then before the court is the same now, it is quite clear that the order in this case should be reversed, since the same question is involved.

But it is apparent that the constitution has been changed in such a manner as to include, within the scope and operation of the civil service law, just such a case as this court then held to be beyond its application. This clearly appears, not only from the plain words since incorporated into the constitution, but from the debates on the subject in the recent constitutional convention. The new or amended and revised constitution of this state, adopted by the people in 1894, and which went into effect on the 1st day of January, 1895, has superseded the decision in the case of People v. Angle, supra. It is quite true that the identical words of article 5, § 3, upon which that decision turned, are still in the constitution. Instead of changing the language or arrangement of the different provisions of that article, the convention adopted, and the people have inserted and added, an entirely new section, which reads as follows: ‘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. * * * Laws shall be made to provide for the enforcement of this section.’ Section 9. The provisions of the article, with respect to the powers and duties of the superintendent of public works in the appointment and removal of persons employed in the care and management of the canals, which were under consideration in the case of People v. Angle, must now be read and understood in connection with this new section, and, reading them all together, there can be little doubt that the obstacles then found to exist to the full operation of the civil service law in every department of the state government have been entirely removed. Smith v. Supervisors, 148 N. Y. 187, 193,42 N. E. 592. That such was the intention of the convention that framed and adopted the amendment is clear beyond all question. If anything in support of this view is wanting, beyond the broad and comprehensive words of the amendment itself, it will be found in the debates on this subject in the convention, in which the intention of that body was declared in the most explicit terms, to bring every department of the government within the operation of the law by such a change in the constitution as would meet and obviate the difficulties pointed out by this court in the case referred to. The declared views in favor of that course by some of the leading members of the convention are to be found in the learned opinion below, and the whole discussion on the question leaves no doubt of the intention to remove every constitutional objection to the full operation of the law and to its application to all appointments in the civil service in all the public departments of the state.

There was no provision in the constitution of 1846, or in any of its numerous amendments, requiring appointments in the civil service to be made according to a general system based upon merit and fitness, to be ascertained by competitive examinations under public authority. That is a conception of comparatively recent date with us, and a step in the line of administrativereform which had forced itself upon public attention, until it finally received practical approval and recognition by the passage of the act of 1883. The operation of that act and the obstacles in the way of its general application, as well as the general merits and advantages of the system to the public service, were all familiar to the members of the convention of 1894, called to revise the constitution; and it cannot be doubted that the intention was, not only to permit, but to require, its general application to appointments in all departments. This result has been effectually accomplished by the adoption of a new provision in the fundamental law. The principle that all appointments in the civil service must be made according to merit and fitness, to be ascertained by competitive examinations, is expressed in such broad and imperative language that in some respects it must be regarded as beyond the control of the legislature, and secure from any mere statutory changes. If the legislature should repeal all the statutes and regulations on the subject of appointments in the civil service, the mandate of the constitution would still remain, and would so far execute itself as to require the courts, in a proper case, to pronounce appointments made without compliance with its requirements illegal.

It is therefore apparent that a new principle, far-reaching in its scope and effect, has been firmly imbedded in the constitution. Like many other reforms, this work has not been accomplished without a long and persistent struggle. The friends and the opponents of the measure have debated its merits, and the difficulties in the way of its practical...