"Granting that the city manager had the absolute power to make plaintiff's appointment permanent, it is clear that he did not intend such appointment to be permanent. Temporary appointments do not ripen into permanent appointments. Darling v. Maquire, 70 Misc. 597, 129 N.Y.S. 385. "In State v. City of Seattle, 134 Wn. 360, 235 P. 968, 970, employees of the city of Seattle made the same contention, that is, that, while they may have been given temporary employment, such employment, by virtue of an amendment of the civil service regulations, became permanent.
The overwhelming weight of authority is that under the circumstances of this case a temporary appointment never ripens into a permanent appointment, nor does mere occupancy of a temporary position beyond the time limited by law result in permanent tenure. Among the many applicable cases are State ex rel. Raines v. Seattle, 134 Wash. 360, 365, 235 P. 968; Darling v. Maguire, 129 N.Y.S. 385, 389; People v. Scannell, 66 N.Y.S. 182, 184. "Any method which results in improperly placing in permanent positions those who obtain temporary employment is a reversion to the properly condemned spoils system and is destructive of much that has been accomplished in the way of civil service reform." Sheridan v. Kern, 5 N.Y. Supp.2d 336, 342.
[3] Granting that the city manager had the absolute power to make plaintiff's appointment permanent, it is clear that he did not intend such appointment to be permanent. Temporary appointments do not ripen into permanent appointments. Darling v. Maguire, 70 Misc. 597, 129 N.Y. Supp. 385. In State v. City of Seattle, 134 Wn. 360, 235 P. 968, 970, employees of the city of Seattle made the same contention, that is, that, while they may have been given temporary employment, such employment, by virtue of an amendment of the civil service regulations, became permanent.
As there was no vacancy in the position of bridge tender at the time the relator commenced work, and as his employment was merely temporary as an extra man, the temporary appointment could not ripen into a permanent civil service position. State ex rel. Raines v. Seattle, 134 Wash. 360, 235 P. 968, 970; Darling v. Maguire, 129 N.Y.S. 385, 389; People ex rel. Orr v. Scannell, 66 N.Y.S. 182, 184. It follows that as the relator never received an appointment under the rules of the civil service, and was only employed and carried on the payroll as an extra man, he could be discharged at the pleasure of the director. 2 McQuillin, Municipal Corporations (2d Ed.) ยง 581; Rodrigue v. Rogers, 4 Cal.App. 257, 87 P. 563, 564.
In view of the relevancy of the questions to the duties of the position, it cannot be said that the action of the Superintendent in this regard was subject to criticism. ( Matter of Darling v. Maguire, 70 Misc. 597; Matter of Davier v. Reavy, 179 Misc. 425. ) For certification on an eligible list for promotion a candidate was required to obtain a composite average of at least 85 on the examination.
That being so, the matter was one for the discretion of the Civil Service Commission and courts will not substitute their views for an authorized discretion reasonably exercised. ( Matter of Darling v. Maguire, 70 Misc. 597, 600; Matter of Allaire v. Knox, 62 A.D. 29, affd. 168 N.Y. 642.) The commission has the power and function under the law to fix a fair and reasonable standard by which the qualifications of the applicants may be tested.
No criticism is made of the choice of the proceeding to test relator's right, since the acts of municipal civil service commissioners can only be questioned in a mandamus proceeding and such remedy exists only where some constitutional or statutory provision, vesting no discretion in the commissioners has been violated. People ex rel. Caridi vs. Creelman, supra; Matter of Darling vs. Maguire, 70 Misc. 597, 129 N.Y.S. 385. And then we come to the law of our own state, which is clear "that while mandamus will lie to compel an official to do an act in respect to which he has no discretion, it will not lie to compel the performance of a duty requiring the exercise of his discretion and judgment."
I think it is clear that rule 16 may apply only to one lawfully in the service and not to a de facto occupant of the office. ( People ex rel. Hannan v. Board of Health, 153 N.Y. 513, 518, 519, 521; People ex rel. Kopp v. French, 102 id. 583, 585; Matter of Darling v. Maguire, 70 Misc. 597, 602.) If there is deemed to be inconsistency between the rule and the statute, the rule must yield to the statute.