Opinion
Argued March 22, 1906
Decided May 25, 1906
John J. Delany, Corporation Counsel ( James D. Bell of counsel), for Edward M. Grout, as comptroller of the city of New York, et al., appellants.
Charles H. Kelby for John P. Worstell et al., appellants.
Walter S. Brewster and James McKeen for respondent.
In obedience to a very general sentiment that appointments and promotions in the civil service should be removed as far as possible from personal and political influence, New York was the first of the states to provide by Constitution that appointments and promotions in the civil service of the state and of the civil divisions thereof should be made according to merit and fitness, and so far as practicable after competitive examination.
Section 9 of article 5 of the Constitution adopted in 1894 and which went into effect January 1st, 1895, is 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; provided however, that honorably dischaged soldiers and sailors from the army and navy of the United States in the late civil war, who are citizens and residents of this state, shall be entitled to preference in appointment and promotion, without regard to their standing on any list from which such appointment or promotion may be made. Laws shall be made to provide for the enforcement of this section." Laws have been made to provide for the enforcement of this section (The Civil Service Law, chapter 370, Laws of 1899, and the amendments and additions thereto) and rules have been adopted by the state civil service commission and by many municipal civil service commissions throughout the state. The rules prescribed by the state and municipal commissions pursuant to the provisions of said act have the force and effect of law. (The Civil Service Law, section 6.)
In the construction of such statutes and rules, and in the consideration of appointments made pursuant thereof, said section of the Constitution and the purpose of its enactment must be constantly borne in mind.
The Constitution clearly contemplates that all appointments and all promotions shall be made according to merit and fitness to be ascertained by competitive examination unless it is in good faith found that it is impracticable so to determine the relative merit and fitness of persons for a particular position or employment. Special circumstances and acts of personal bravery and heroism have been held sufficient to justify the promotion of a patrolman without other test of merit and fitness. ( People ex rel. Schelpp v. Knox, 48 App. Div. 477; People ex rel. Leary v. Knox, 166 N.Y. 444.)
In the Schelpp case the court say: "No examination can be devised which will present the conditions to furnish a test of the comparative gallantry or heroism of policemen or firemen engaged in the attempt to rescue persons from a burning building. It would be most unfortunate for the public service, however, if the Constitution and laws of the state forbade the recognition of exceptionally brave conduct under such circumstances by awarding deserved promotion to those by whom such conduct had been displayed." The legislature, by the Civil Service Law, has provided generally for an exempt class, and also for filling certain positions after a non-competitive examination. Any exception, however, to the constitutional direction that appointments and promotions must be made according to merit and fitness to be ascertained by competitive examination must be based upon the impracticability of the selection being based upon the result of such competitive examination. Apart from the fact that statutes may be made and rules may be adopted to make a practicable and workable system of appointments and promotions, the plain, general direction of the Constitution requiring that such appointments and promotions be made after a competitive examination must be obeyed. The constitutional provision must be given a fair and liberal construction and the power reserved to the legislature and to civil service commissions to make laws and rules must be exercised with a view of carrying out the purpose and intent of the Constitution. Any statute or rule contrary to the express language of the Constitution or to its true spirit and intent, is void and cannot be enforced, and in every case it is for the courts to determine whether a statute or rule is a valid exercise of the power to determine what employees or class of employees it is not practical to select from lists prepared after an examination or a competitive examination.
The Constitution is not only the supreme law, but the guide in the determination of every question arising in connection with the civil service appointments.
The word "transfer" is not used in the Constitution. A promotion is an advancement to a higher position, an elevation, a preferment. If the practical working of the civil service requires a transfer of one engaged therein, such transfer can only be made when it does not in fact constitute a promotion. Promotions under the name of transfers are evasions and illegal and contrary to the express terms of the Constitution.
The duties of Worstell when engaged as a bath attendant were to take care and charge of a particular bathhouse under the supervision and direction of a superintendent of public baths. The duties of a superintendent of public baths and comfort stations are to supervise and direct the work of the various bath attendants detailed to the bathhouses and comfort stations in a borough of the city of New York, and to exercise control of that work subject to the approval of the borough president. The duties of the assistant superintendent of public baths and comfort stations are substantially identical with those of the superintendent of baths and comfort stations, but subordinate to and under the immediate direction of the superintendent. The duties of the defendant McNamara before his transfer on December 29th, 1903, were that of a third grade clerk assigned to the bureau of buildings in the borough of Brooklyn, and his duties were of a clerical nature and incident to the issuing of slip permits for the alteration of buildings, and such other clerical work as was directed by superior order.
It does not require argument or authority to substantiate or justify the statement that each of the transfers mentioned were in fact promotions both in the grade of work to be done and in the compensation to be received therefor. If appointing officers are allowed to make transfers among those in the competitive class without regard to grade, class of work or compensation, providing only that the person so transferred is upon the eligible list for the position to which he is transferred, the beneficial effects obtained by the constitutional provision will be substantially overcome. Such a transfer would enable a person hopelessly low on an eligible list for an important place in the classified service to obtain an appointment through personal or political influence or favoritism if he could once obtain an appointment to any inferior place in the service. Such transfers would demoralize the service.
The rules of the municipal civil service commission referring to promotions provide: "Except as this rule otherwise provides the conduct of an examination for promotion and the making of selections therefor from any eligible list formed as the result of such examination shall be governed by the rules relating to original appointment."
It is not claimed that the defendants Worstell and McNamara were appointed pursuant to the rules of the commission relating either to original appointments or promotions. It is unnecessary to discuss at length the provisions of the Civil Service Law or the rules of the municipal civil service commission except to say that so far as they can be given a construction that will permit of a promotion under the guise of a transfer, they are to that extent unconstitutional and void.
The judgment should be affirmed, with costs.
I concur in the opinion of Judge CHASE and vote for the affirmance of the judgment appealed from. As to the questions discussed in the dissenting opinion of my brother HAIGHT, I am of the opinion that under both the constitutional provision and the statute, vacancies in the civil service can be filled by promotion from those occupying a lower grade in the department, and that it is not necessary that the position should always be thrown open to persons not in service. The rules of the civil service commission in force at the time provided a scheme for promotion as distinguished from original appointment and for competition for such promotion. Had the defendant Worstell been promoted in accordance with the provisions of the rule, I think the promotion would have been valid, notwithstanding outside competitors might have stood higher on the eligible list. The difficulty is that Worstell, so far as appears by this record, was not promoted in accordance with the civil service rules nor was he certified for promotion, but was promoted arbitrarily without competition.
As to the defendant John P. Worstell, I think the judgment should be reversed. It appears from the allegations of the complaint and the findings of the trial court that in the month of May, 1899, he was appointed to the position of bath attendant at a salary of $900 per annum upon certification to the appointing officer by the civil service commission; that his name was at the head of the eligible list for such attendants, and that in the month of June, 1900, he was transferred as such attendant from the borough of Manhattan to the borough of Brooklyn. On the third day of April, 1902, he again entered a competitive examination by the civil service commission, and upon such examination he was placed number seven upon the eligible list for appointment or promotion to the position of superintendent of public baths and comfort stations, and subsequently, and on or about July 6, 1903, he was advanced to the position of assistant superintendent of public baths and comfort stations in the borough of Brooklyn at a salary of $1,500 a year with the consent of the municipal civil service commission, and entered upon his duties as such assistant superintendent, and subsequently, and on the second of December, 1903, he was advanced to the position of superintendent of public baths and comfort stations, with the consent of such commission, at a compensation of $2,500 per year. It thus appears that before his advancement to the position of assistant superintendent or of superintendent he had served the municipality for upwards of four years as bath attendant under an appointment made pursuant to the provisions of the Civil Service Law, he then being the highest upon the list, and there is no pretense in the case but that his services during this entire period were faithful and entirely satisfactory to his superior officer. It further appears, as we have seen, that upon the competitive examination which took place on the third day of April, 1902, he was placed seventh upon the list, on which Washington W. Weeks was at the head. But under the allegations of the plaintiff's complaint it appears that on the first day of August thereafter Weeks, for some reason, had disappeared from the list; for it was then alleged that William N. Beers, William H. Hale, the plaintiff, and Edward C. Kreschner at that time remained at the head of the list; that Beers had been appointed an assistant fire marshal; that the plaintiff Hale had been appointed a third grade clerk and that Edward C. Kreschner had been appointed an inspector of tenements. It thus appears that the three persons, standing at the head of the list after Weeks, had received appointments and that James W. Moran, Franklin M. Horton and John P. Worstell, the defendant in this action, were the next three remaining on the list undisposed of. Under the rule then in force the appointing officer had the right, with the consent of the municipal civil service commission, to recognize the merit, fitness, fidelity and ability from the faithful and satisfactory services of a person who had been in service for at least three years prior thereto, in making a promotion to a position for which he had passed a competitive examination. The eligible list was made up both for original appointments and promotions, but under the findings upon which this judgment is based, the defendant Worstell is the only person who appears upon the list as holding a position in that department who was a candidate for promotion. Under section 15 of the Civil Service Law it is provided that "Vacancies in positions in the competitive class shall be filled, so far as practicable, by promotion from among persons holding positions in a lower grade in the department, office or institution in which the vacancy exists." Here we have an express statutory provision requiring vacancies in a department, office or institution to be filled, so far as practicable, by promotion from persons holding positions in a lower grade in that department, office or institution. This permits competition among the persons holding positions in a department, etc., for promotion to a higher position in such department when a vacancy occurs, and prevents such vacancies from being filled by outside persons who have never held positions under the civil service or who may be connected with some other department or office, unless there exists some special reason with reference to the position to be filled that renders it impracticable to be filled by promotions from those holding lower positions in the same department, such as a doctor or surgeon, or a person possessed of technical knowledge or skill. It consequently follows that the defendant Worstell, being the only person upon the eligible list who, under the findings, held a position in the department of public baths at the time the vacancies referred to in the findings occurred, his promotion was legal. The judgment as to him should, therefore, be reversed.
GRAY and EDWARD T. BARTLETT, JJ., concur with CHASE, J., and CULLEN, Ch. J., concurs with CHASE, J., in memorandum; VANN J., concurs with HAIGHT, J.; WILLARD BARTLETT, J., not sitting.
Judgment affirmed.