Ricker v. Vill. of Hempstead
| Decision Date | 04 March 1943 |
| Citation | 290 N.Y. 1,47 N.E.2d 417 |
| Parties | RICKER v. VILLAGE OF HEMPSTEAD et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Second Department.
Proceeding in the matter of the application of James H. Ricker pursuant to the Civil Practive Act, art. 78, s 1283 et seq., for an order directing the Village of Hempstead and others to reinstate petitioner as chief of police of such village. An order dismissing the petition on the merits, 176 Misc. 860, 28 N.Y.S.2d 366, Lockwood, J., was affirmed by the Supreme Court, Appellate Division, in 263 App.Div. 960, 32 N.Y.S.2d 950, and leave to appeal was denied by the Supreme Court, Appellate Division, 263 App.Div. 1009, 34 N.Y.S.2d 413, and the petitioner appeals.
Orders reversed, motion to dismiss petition denied, and matter remitted to Special Term with directions. Manuel W. Levine and Ira G. Goldman, both of Port Washington, and Alphonso M. Lapera, of Brooklyn, for appellant.
C. H. Tunnicliffe Jones and Albert B. Humphrey, both of Hempstead, for respondents.
By chapter 598 of the Laws of 1940, section 188-l of the Village Law, 7 Consol.Laws, c. 64, was amended as of April 18, 1940, by the addition thereto of the following provision: ‘Village policemen who are employed at the time this act, as hereby amended, takes effect, and who were employed at the time the rules of the state civil service commission were extended to the police department of the village in which they are employed, shall continue to hold their positions without further examination and shall be removed only upon compliance with the provisions of section one hundred eighty-eight-f of this chapter.’ Section 188-f provides that except in situations not here presented no member of a village police force shall be removed until written charges against him have been heard. This proceeding under article 78 of the Civil Practice Act calls upon us to determine the constitutional validity of the exemption from examination so declared.
Petitioner joined the police force of the village of Hempstead as patrolman in 1918. He was given the rank of sergeant in 1922 and that of lieutenant in 1924. He was made chief of police on October 1, 1935. He never was examined respecting his fitness for any of these posts, in as much as the rules of the State Civil Service Commission were not extended to the village of Hempstead until January 5, 1937. On April 7, 1941, the trustees of the village summarily removed him from his position as chief of police and nullified his membership in the local police department.
On the undisputed facts, this summary termination of the petitioner's employment was forbidden by the words we have quoted from section 188-l, and the only question for decision is whether the Legislature thereby plainly transgressed the civil service principle of the State Constitution, as the courts below have held. The relevant text of the Constitution is found in section 6 of article 5. It is thereby provided: ‘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.’
For many years after its adoption as part of the Constitution of 1894, this command was not brought to bear upon appointments of village policemen. Not until 1939, was the State Civil Service Commission able to report that its rules had recently been extended to the police departments of all the villages of the State (56th Annual Report of the Commission, p. 3). The occasion of this delay in carrying out the fundamental law was not obscure. ...
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