§ 11

Classified City Service

L. 1909, ch. 15

rule was enacted, or by public officers whose duty it is to enforce it, and acquiesced in by all for a long period of time, is of great importance in its interpretation in a case of serious ambiguity. Blau v. New York, (1915) 166 App. Div. 573, 151 N. Y. S. 819.

Effect of new legislation on former rules.- Where a new rule is laid down by the legislature for the future administration of the civil service system in cities throughout the state, it must logically follow that acts done under authority of the law in force, prior to the time when the new rule takes effect, are valid and lawful. People v. Keller, (1898) 157 N. Y. 90, 51 N. E. 431, affirming 31 App. Div. 248, 52 N. Y. S. 950.

Certification of copy of municipal regulations. The civil service regulations of a city, on file in the office of the state civil service commission at Albany, may be sufficiently proved for use in evidence by the production of a copy thereof, certified by the secretary of the commission in substantial compliance with section 933 of the Code of Civil Procedure. People v. Tobey, (1897) 153 N. Y. 381, 47 N. E. 800, modifying 8 App. Div. 468, 40 N. Y. S. 577, 17 App. Div. 621, 44 N. Y. S. 1127.

Force of municipal classifications.- A municipal civil service commission is the sole judge of the qualifications of an applicant for office, and its action is judicial in character and cannot be impeached collaterally, but only by direct proceedings instituted for that purpose. People v. Aldermen, (1896), 18 Misc. 533, 42 N. Y. S. 545. Thus the proper classification of deputy assistant city attorneys, managing clerk, registrar and detectives in the law department, is a matter within the discretion of the municipal civil service commission, and since the question as to whether they should be in the competitive or noncompetitive class is a matter of opinion, and not a strict question of law, mandamus does not lie to compel the commissioners to change their determination. Hammond v. Ricker, (1910) 140 App. Div. 19, 124 N. Y. S. 406, affirmed without opinion by (1910) 200 N. Y. 527 mem., 83 N. E. 1122. But of course a municipal commission cannot, by the enactment of a rule, repeal the positive provisions of the Civil Service Law. O'Malley v. Board of Education, (1914) 160 App. Div. 261, 145 N. Y. S. 645. And the court has power to review municipal civil service rules and to declare them invalid if they are not in harmony with the civil service provisions of the constitution and the laws made thereunder. Matter of Ricketts, (1906) 111 App. Div. 669, 98 N. Y. S. 502.

Limitation on residence.- The limitation as to the residence of local officers is the political subdivision or municipal corporation of the state. People v. Fetherston, (1915) 168 App. Div. 416, 153 N. Y. S. 325; People v. McGuire, (1910) 68 Misc. 516, 125 N. Y. S. 90. See generally, PUBLIC OFFICERS LAW, § 3.

Requirement of oath from applicant.- The rules and regulations promulgated by a municipality may require as a condition precedent to an examination, that an applicant shall verify his application under oath, and such oath is not extra-judicial and a charge of perjury can be predicated upon it. Foreman v. Union, etc., Co., (1894) 83 Hun 385, 31 N. Y. S. 947.

Correction of illegal classifications.- Mandamus is the proper remedy to compel a municipal civil service commission to correct an illegal classification of positions, but it will not lie where the determination of the commission does not constitute an abuse of discretion and is not illegal. In re Dill, (1906) 185 N. Y. 106, 77 N. E. 789, affirming Dill v. Wheeler, (1905) 100 App. Div. 155, 91 N. Y. S. 686; Simons v. McGuire, (1912) 204 N. Y. 253, 97 N. E. 526, reversing 145 App. Div. 471, 130 N. Y. S. 306; People v. McWilliams, (1906) 185 N. Y. 92, 77 N. E. 785, reversing People v. Whittet, (1905) 100 App. Div. 176, 91 N. Y. S. 675; Chittenden v. Wurster, (1897) 152 N. Y. 345, 46 N. E. 857, 37 L. R. A. 809, reversing 14 App. Div. 483, 43 N. Y. S. 1035. A classification of positions exempt from civil service

L. 1909, ch. 15

Classified City Service

§ 11

examination made by the mayor of a city, presumably in the conscientious discharge of his duty under the statute, although it may be voidable is not void; and until judicially determined to be erroneous it is a protection to the subordinate heads of departments and employees acting thereunder, and, until the proper classification has been made, appointments made thereunder must be deemed valid. Chittenden v. Wurster, (1897) 152 N. Y. 345, 46 N. E. 857, 37 L. R. A. 809, reversing 14 App. Div. 483, 43 N. Y. S. 1035.

Determination of grade of city employee. The grade of a municipal civil service employee, who is appointed after passing a competitive examination, is not fixed by the salary he receives, but by the position he occupies and for which he passed the examination. People v. Knox, (1901) 58 App. Div. 541, 69 N. Y. S. 602, affirmed without opinion by (1901) 167 N. Y. 620 mem., 60 N. E. 1118. The fact that the compensation paid to an employee is a certain sum per day does not necessarily make him a day laborer. Nuttall v. Simis, (1898) 31 App. Div. 503, 52 N. Y. S. 308; Meyers v. New York, (1893) 69 Hun 291, 23 N. Y. S. 484; Wagner v. Collis, (1896) 7 App. Div. 203, 40 N. Y. S. 171. Increase in salary.- Civil service rules merely establish a classification and do not fix or control salaries, and every question as to an increase in salary must be considered with reference to section 16. O'Malley v. Board of Education, (1914) 160 App. Div. 261, 145 N. Y. S. 645; People v. Tully, (1905) 108 App. Div. 345, 95 N. Y. S. 916, 1153.

Effect of disqualification under the Civil Service Law. A disqualification under the statute, for an appointment in the public service of a city, applies not only to an individual who has not passed the requisite examination, but also to the city itself, as it cannot employ or receive into its service a person not eligible under the law. Peck v. Belknap, (1892) 130 N. Y. 394, 29 N. E. 977, reversing 55 Hun 91, 8 N. Y. S. 265.

Application of general statute to city of New York.―There is no separate and distinct civil service system provided for the present city of New York in its charter, and the general Civil Service Law of the state is applicable to that city, save where repealed directly or by implication by that charter. People v. Dalton, (1899) 158 N. Y. 175, 52 N. E. 1113, reversing 34 App. Div. 627, 54 N. Y. S. 1112; People v. Kearny, (1900) 164 N. Y. 64, 58 N. E. 14, affirming 49 App. Div. 125, 62 N. Y. S. 1097; People v. Fetherston, (1915) 168 App. Div. 416, 153 N. Y. S. 325; Op. Atty.-Gen. (1898) 287. But the civil service system of the city of New York provides a special and exclusive method for classification and examination of applicants, and for its administration. People v. Keller, (1898) 157 N. Y. 90, 51 N. E. 431, affirming 31 App. Div. 248, 52 N. Y. S. 950.

Power to fix age limitation.-The municipal civil service commission of New York city is authorized to prescribe a minimum age limit of twenty-five years for the position of inspector in the bureau of fire prevention, as the public have the right to require that the fitness of the person appointed should be measured and established by any test honestly and reasonably appropriate to that end. People v. Creelman, (1912) 206 N. Y. 570, 100 N. E. 446, reversing 152 App. Div. 147, 136 N. Y. S. 811. Section 734 of the New York city charter, providing that no person shall be appointed to membership in the fire department who is not over the age of twenty-one and under the age of thirty years, applies to an applicant over thirty years of age, although his name was on the eligible list at the time the charter went into effect. People v. Scannell, (1900) 49 App. Div. 244, 62 N. Y. S. 1064. It has been held that honorably discharged soldiers and sailors are within the exception of statutes fixing the age limit, if they are not physically incapacitated from performing the duties of the position. People v. French, (1889) 52 Hun 464, 5 N. Y. S. 712; Matter of Sullivan, (1890) 55 Hun 285, 8 N. Y. S. 401; People v. Board of Civil Service Com'rs, (1897) 20 Misc. 217, 45 N. Y. S. 46.

§ 12

Classification

L. 1909, ch. 15

Cited. Goldschmidt v. Board of Education, (1915) 170 App. Div. 395, 156 N. Y. S. 66, reversed (1916) 217 N. Y. 470. See supra, § 9, note. In People v. McAdoo, (1905) 110 App. Div. 432, 96 N. Y. S. 362, L. 1899, ch. 370, § 10, from which this section was derived, was cited on a question of promotion. See infra, § 16, and note, as to promotion.

§ 12. Classification. The offices and positions in the classified service of the state or of any civil division or city, thereof for which civil service rules shall be established pursuant to this chapter, shall be arranged in four classes to be designated as the exempt class, the competitive class, the non-competitive class and, in cities, the labor class.

This is substantially section 11 of the original Civil Service Law of 1899. General scheme of statute.-"The scheme of the statute appears to have been as follows: (a) To divide the classified service into two classes: (1) a class concerning which it was not deemed practicable or advisable to prescribe rules and which was therefore called 'exempt'; (2) a class, consisting of the competitive, noncompetitive, and labor classes, concerning which it was practicable to prescribe rules, governing removals and appointments, and to test by examinations the qualifications of persons to be appointed in all but the labor class. (b) With respect to the second class, to confer certain preferential rights upon specified classes of persons and to give them the remedy of the writ of mandamus for a violation of those rights. (c) To limit removals from certain specified positions, i. e., those in the competitive class and of a regular clerk or head of a bureau, by providing that the reasons for removal be stated and recorded, that an opportunity of making an explanation be afforded the person removed, and that a person removed in disregard of that provision be given the remedy of the writ of mandamus. (d) To guard the second class, in so far as practicable, from political influence by providing that appointments to, or removals from, positions in it should not be affected or influenced by the political opinions or affiliations of the persons appointed or removed." People v. Prendergast, (1911) 148 App. Div. 129, 132 N. Y. S. 115.

Rule of construction.- The statute authorizing classification to be made, and requiring competitive examinations, as a condition of appointment, must be strictly construed. People v. Dalton, (1900) 49 App. Div. 71, 63 N. Y. S. 258, affirmed (1900) 163 N. Y. 556 mem.

Duty of commission.— It is the positive duty of the state civil service commission to divide the classified civil service of the state and its civil divisions, including cities, into four classes; and subject to the general provisions of the constitution and the Civil Service Law, the commission is to determine into which particular classes the positions in the classified service shall be placed. People v. Collier, (1903) 175 N. Y. 196, 67 N. E. 309, reversing 79 App. Div. 636, 80 N. Y. S. 1146, 78 App. Div. 620, 79 N. Y. S. 671. Commissions are required to classify the civil service, and are empowered to determine the offices that shall be filed by competitive examinations, including promotions from one position to another. Sugden v. Partridge, (1903) 174 N. Y. 87, 66 N. E. 655, reversing 78 App. Div. 644, 80 N. Y. S. 1149.

Nature of act of classification. The act of classification by a civil service commission is a legislative or administrative and not a judicial act, and can be reviewed by the courts only where the act sought to be controlled is so palpably violative of the law as to present no fair or reasonable ground for difference of opinion among intelligent and conscientious officials. People v. McWilliams, (1906) 185 N. Y. 92, 77 N. E. 785, reversing People v. Whittet,

L. 1909, ch. 15

Exempt Class

§ 13

(1905) 100 App. Div. 176, 91 N. Y. S. 675; People v. McAdoo, (1906) 113 App. Div. 770, 99 N. Y. S. 324.

Judicial control of classifications. The principle which should determine whether a given position should be included in the competitive class is, that if the position is one as to the proper mode of filling which there is a fair and, reasonable ground for difference of opinion among intelligent and conscientious officials, the action of the commission should stand, even though the courts may differ from the commission as to the wisdom of the classification, and that only where the act of the commission in making classification was clearly and palpably illegal would its action be corrected by mandamus. People v. Creelman, (1912) 206 N. Y. 570, 100 N. E. 446, reversing 152 App. Div. 147, 136 N. Y. S. 811; People v. McWilliams, (1906) 185 N. Y. 92, 77 N. E. 785, reversing People v. Whittet, (1905) 100 App. Div. 176, 91 N. Y. S. 675; Simons v. McGuire, (1912) 204 N. Y. 253, 97 N. E. 526, reversing 145 App. Div. 471, 130 N. Y. S. 306.

§ 13. The exempt class. The following positions shall be included in the exempt class:

1. The deputies of principal executive officers authorized by law to act generally for and in place of their principals;

2. One secretary of each officer, board and commission, authorized by law to appoint a secretary;

3. One clerk, and one deputy clerk if authorized by law, of each court, and one clerk of each elective judicial officer;

4. In the state service, all unskilled laborers and such skilled laborers, as are not included in the competitive class or the noncompetitive class; and in addition thereto there may be included in the exempt class all other subordinate officers for the filling of which competitive or non-competitive examination may be found to be not practicable. But no office or position shall be deemed to be in the exempt class unless it is specifically named in such class in the rules, and the reasons for each such exemption shall be stated separately in the annual reports of the commission. Not more than one appointment shall be made to or under the title of any such office or position, unless a different number is specifically mentioned in such rules. Appointments to positions in the exempt class may be made without examination.

Amended by L. 1912, ch. 170; L. 1913, ch. 352. The amendment of 1912 inserted in subdivision 2 after the word "commission" the words " except civil service commissions." The amendment of 1913 omitted these words. The section, therefore, now reads as it did before any amendments were made and is identical with section 12 of the original Civil Service Law of 1899.

Qualification of volunteer firemen for exemption: see GENERAL MUNICIPAL LAW, § 204. Exemption of positions in conservation department: see CONSERVATION LAW, § 3, note.

Removal before approval of rules: see supra, § 11, note.

Scope and purpose of section. The principal executive officers, the heads of departments, whether appointed or elected, and their deputies and secretaries, are selected with reference to the political affiliations of the appointees, and it is plain that the legislature did not intend otherwise, as the purpose of creating an exempt class would be defeated if the motives of the appointing officers could be inquired into. People v. Prendergast, (1911) 148 App. Div. 129, 132 N. Y. S. 115. “The following positions may be considered as exempt: First. Officers elected by the people. Second. Subordinates of any such officer for whose errors or violations of duty said officer is financially responsible. This description is rather broad, but I take it is to be restricted to cases where the appointing officer will be held liable for the acts or violations of duty of his appointee, whether personally guilty of negligence or not, and so am of the opinion that the subordinate is properly exempt. It would be difficult, indeed, to secure the services of responsible people in elective offices if they were to be hampered in their selections of subordinates for whose wrongs they are to be held responsible, unless they are permitted to select persons in whose ability and integrity they have confidence. Third. The head or heads of any department of city government. These officers are usually, when elected, appointed by either the mayor and common council, or either, without the concurrence of the other. It was undoubtedly the intention of the legislature in creating these exemptions to permit, in all cases where possible, the chief authorities of city governments to secure the services of persons who would administer the affairs of the cities in accord with the views and wishes of such chiefs, in order that the interests of the respective municipalities might be better subserved. The exemptions, therefore, are not in conflict with the constitution. Fourth. Any subordinate officer, who has custody of public moneys or public securities, for the safe keeping of which the head of the office is under official bonds." Op. Atty.Gen. (1896) 213.

Significance of

exempt."—" The use of the word 'exempt' is significant of an intention that appointments to, or removals from, positions in that class should be exempt from restrictions or limitations, and when the nature of the positions specifically included is considered, it appears reasonably plain that the purpose was to confer unrestricted authority and to fix unlimited responsibility for appointments to positions in that class upon the officers exercising the power of appointment." People v. Prendergast, (1911) 148 App. Div. 129, 132 N. Y. S. 115.

Veterans. A veteran of the civil war has no preference to a position in the exempt class, but has a preference only where the position is in the competitive or noncompetitive class. People v. Gaffney, (1910) 69 Misc. 36, 125 N. Y. S. 762. See infra, § 21.

District attorneys and assistant district attorneys are county officers and exempt from the operation of civil service rules. People v. Taylor, (1896) 17 Misc. 505, 40 N. Y. S. 321.