Rogers v. Buffalo

• Decision Date: 15 December 1888
• Citation: Rogers v. Buffalo, 3 N.Y.S. 671 (N.Y. Super Ct. 1888)
• Parties: Rogers v. City of Buffalo et al
• Court: Superior Court of New York

3 N.Y.S. 671

Rogers v. City of Buffalo et al

Supreme Court of New York, Special Term, Erie County

December 15, 1888

Action by Sherman S. Rogers, to prevent the city of Buffalo from paying any part of the salary claimed by defendant Ceriac Diebolt as street and health inspector.For former report see2 N.Y.S. 326.For affirmance on appeal, seepost, 674.

Almy & Keep and Ansley Wilcox, for plaintiff.

Wm. F Sheehan, for defendant Diebolt.

OPINION

Lewis J.

This action is brought under section 1925 of the Code of Civil Procedure, against the city of Buffalo and the other officers thereof, who have to do with the paying of the salaries of persons in the service of the city, to obtain a judgment restraining the payment of the salary of Ceriac Diebolt, as health and street inspector of the city, upon the claim that the appointment of Diebolt as health and street inspector was illegal, because in violation of the civil service laws and regulations of the state.Pursuant to the provisions of the statutes of the state known as the "Civil Service Acts," the mayor of Buffalo, prior to the times hereafter mentioned, prescribed and published rules and regulations for the admission of persons into the civil service of the city.These rules applied to all persons in the public service of the city, except such officers as were elected by the people, the subordinates of such officers, for whose errors or violation of duty such officer is financially responsible, except laborers or day-workmen, and others not necessary to mention for the purposes of the case.The defendant Quinn, on the 2d day of January, 1888, entered into the office of street commissioner of the city of Buffalo, having been duly elected thereto; and, by the provisions of the city charter, it was made his duty as such commissioner to appoint such inspectors of health and streets as the common council should authorize.Such appointments were to be made by and with the advice and consent of the common council.Soon after assuming his office, he did appoint 13 persons, including the defendant Diebolt, to fill vacancies then existing in such offices.These appointments were made without the civil service rules and regulations having been complied with.The common council confirmed the appointments.Difficulties having arisen in these officers' obtaining pay for their services, because the legality of their appointments was questioned, they resigned their offices, and thereafter some efforts appear to have been made by the commissioner to comply with the civil service laws and regulations in making appointments to fill these offices permanently, the particulars of which it is not necessary to mention here; but, not meeting with much encouragement from the common council, he did, on the 4th day of September, 1888, make permanent appointments to the positions of street and health inspectors of nine persons in the place and stead of the defendant Diebolt and eight other persons who were then holding such offices as temporary appointees, and as such permanent appointees he named the defendant Diebolt and eight other persons.The persons so designated, and particularly the defendant Diebolt, had not passed any civil service examination, or in any manner complied with the state civil service rules, and had not been certified to said street commissioner in any manner as having complied with said rules, and as persons who were eligible for such appointments.The common council, on said 4th day of September, confirmed the appointments of Diebolt and eight other persons as permanent appointments to such positions of street and health inspectors of the city, and thereupon this action was begun by the plaintiff, who is a resident, citizen, and tax-payer, under section 1925, which provides for an action to obtain a judgment preventing waste of, or injury to, the estate, funds, or property of a city by a citizen therein, who is assessed for and is liable to pay a tax therein.

The defendant Diebolt defends the action, and claims that his office is not subject to the civil service laws of the state and cannot be classified under the civil service regulations, for the reasons--First, that he is a subordinate of the street commissioner, who is an officer elected by the people, and financially responsible for the acts of defendant Diebolt as inspector; second, that the duties of the office of health and street inspector are those of a laborer or workman, simply; third, that, the common council being vested with the power to confirm or reject appointments, therefore the civil service laws have no application to officers subject to their confirmation or rejection; fourth, that if a health and street inspector is not a laborer or workman, but an officer of the city, then he is not exempt from taking the constitutional oath of office, and, as the constitution provides the form of oath to be taken, and further provides that no other oath, declaration, or test shall be required as a qualification for any office of public trust, the civil service rules and regulations cannot be held to...