the judgment roll without the "case" containing the evidence, charge, and the rulings upon the trial. This would present no record of the proceedings at the trial, except the rough minutes of the clerk. There would be nothing to enable the court to pass upon challenges interposed either to grand or trial jurors. The exceptions taken to the rulings of the court relating to evidence and to the charge would not appear, and there would be nothing in the record that the court could review. It would still be necessary to have the "case" printed and furnished. The same section provides that the expense of printing the judgment roll shall be a county charge, yet, unless the judgment roll contains the "case," the greater expense of printing the latter would be thrown upon the defendant. The legislature did not intend to have two separate records presented for the purpose of the appeal,-one, the judgment roll printed by the clerk, and the other the "case" printed by the defendant. We think that, whenever the "case" is filed, even if it is after the judgment roll has been made up in the first instance, it becomes by operation of law a part thereof, and should be attached thereto in accordance with the general practice.

Under the statute we have jurisdiction to review judgments rendered on conviction after indictment, "and, upon the appeal, any actual decision of the court in an intermediate order or proceeding forming a part of the judgment roll * may be reviewed." Section 517. Any intermediate order or proceeding, therefore, which is required by law to be a part of the judgment roll is brought before us for review by virtue of the notice of appeal from a judgment of death. Two tests are thus provided: First, the order or proceeding must be a part of the judgment roll; and, second, it must be an intermediate order. Section 517. According to section 485, a copy of the minutes of any proceedings upon a motion for a new trial is required to be a part of the judgment roll. What is the object of this requirement unless it is, in connection with section 517, to give the court jurisdiction to review the proceedings upon a motion for a new trial? All the other papers in the judgment roll are the subject of review by us, although the minutes of the clerk relating to challenges to jurors and his minutes of the trial need to be expanded by a "case" before any intelligent review is possible. The material evidence given upon a challenge to a juror is put into the "case" so that the exceptions to the decision relating to the challenge may be reviewed. It is an appropriate and necessary part of the "case" if any question relating to the jurors, either grand or trial, is to be presented. In the same way the "case," which, as we have seen, is a part of the judgment roll, may be expanded by including the evidence and proceedings upon a motion for a new trial,

so that the order denying it may be reviewed. The statute does not confine the judg ment roll to a copy of the minutes of proceedings upon a motion for a new trial founded upon the minutes of the presiding justice, but is general in form, and necessarily includes a motion for a new trial founded upon newly-discovered evidence made under section 465.

An intermediate order, within the meaning of section 517, is not confined to orders made between the finding of the indictment and the preparation of the judgment roll in the first instance. The word "intermediate," as thus used, means between the finding of the indictment and the completion of the judgment roll by the attachment of the "case" thereto whenever it is filed. As a judgment roll need not be made up at all unless a notice of appeal is served, it is apparent that the object of preparing the roll is to make a record to present to the appellate court. Section 485. The judgment is entered upon the record kept by the clerk, and this is sufficient for its enforcement and for all purposes, unless an appeal is taken. Hence, if all the papers which the statute says shall be a part of the judgment roll are not on file when it is first made up, they become a part of it when filed, and the word "intermediate" is limited only in this way.

A motion for a new trial upon newly-discovered evidence may now be made in a capital case at any time before execution, although formerly it was restricted to any time before judgment. Laws 1887, c. 534, § 466. Unless it is made and decided in time to include the proceedings in the "case," the order denying the motion cannot be reviewed. The right is lost, the same as many other rights in legal proceedings are lost, by delay. When, however, it is made in time to have the affidavits become a part of the "case," we think the legislature intended that the order might be reviewed at the instance of the defendant, for it is only his right of appeal that we have considered. The right of appeal by the people is much more restricted. Section 518. Such a motion may be of the utmost importance, and, while it should be granted with caution, if an overwhelming case is made by the defendant, and the motion is denied, there should be a right of review; yet no method is provided, unless as thus stated.

The legislature provided that a copy of the minutes of the proceedings upon a motion for a new trial should be a part of the judgment roll; that the "case" should also be a part of the judgment roll; that the judgment roll should be printed and furnished us as the record upon which the appeal should be heard; and that we should review, as an incident to the appeal from the judgment of death. any decision of the trial court in an order or proceeding forming a part of the judgment roll. This makes it our duty to hear the appeal, as was plainly intimated by Judge An

drews, under a statute less favorable to the defendant, when he said, in People v. Trezza, 128 N. Y. 529, 28 N. E. 533: "There is no statute provision authorizing an appeal from an order denying a new trial, except as incident to an appeal from the judgment." The court then had before it an appeal simply from an order denying a motion for a new trial on account of newly-discovered evidence. Such appeal was brought after the principal appeal had been decided and the judgment of death affirmed, and the court refused to decide it, because it was brought too late. The same result was reached in People v. Mayhew, 151 N. Y. 607, 610, 45 N. E. 1123, where the appeal was taken after the judgment of death had been affirmed. Judge Bartlett, speaking for the court, quoted the above sentence from the opinion in People v. Trezza, supra, and, referring to section 485, said: "This section contemplates that the motions for a new trial and in arrest of judgment will be made before the final appeal, and heard in this court as intermediate orders, which constitute a part of the judgment roll." See, also, People v. Noonan, 14 N. Y. Supp. 519; People v. Mangano, 29 Hun, 259, 264; and People v. Schad, 58 Hun, 571, 12 N. Y. Supp. 695. The motion to dismiss the appeal should be denied, the order appealed from reversed, and the papers relating to the motion for a new trial upon the ground of newly-discovered evidence inserted in the "case."

O'BRIEN, BARTLETT, and LANDON, JJ., concur. MARTIN, J., concurs in result. PARKER, C. J., and HAIGHT, J., not voting.

Motion denied, etc.

(163 N. Y. 32)

PEOPLE ex rel. BALCOM v. MOSHER et al., Board of Com'rs.

(Court of Appeals of New York. May 1, 1900.) MUNICIPAL CORPORATIONS-APPOINTMENT OF OFFICERS-CIVIL SERVICE COMMISSION

STATUTORY PROVISIONS.

Section 2, art. 10, Const., provides that all city officers whose election or appointment is not provided for shall be elected by the electors of such cities, or appointed by such authorities thereof as the legislature shall designate for that purpose. Section 9, art. 5, provides that appointments in the civil service in the state shall be made according to merit and fitness, as ascertained by competitive examination; giving preference to veterans of the army and navy. Held, that chapter 370, Laws 1899, providing that appointments should be made "of those graded highest," is in violation of section 2, art. 10, of the constitution, as taking from the proper authorities of a city the power to appoint certain officers, which power was conferred by the charter thereof, and vesting in the civil service commission such power.

Appeal from supreme court, appellate division, Third department.

Application by George N. Balcom for mandamus against William H. Mosher and oth

Appeal from an order of the appellate division, in the Third department, reversing an order of the special term granting a peremptory writ of mandamus commanding the defendants to appoint the relator to the position of superintendent of streets and city property of the city of Binghamton for a probationary term of two months. The charter of that city provides that the mayor shall appoint four commissioners, who shall constitute a board to be known as the "Board of Street Commissioners of the City of Binghamton"; that it shall have the management and control of the street department; and its powers and duties are defined. It then declares that on the second Tuesday in February of every alternate year the board shall appoint a superintendent of streets and city property for the term of two years, who shall receive an annual salary of $1,000. and defines the duties of the superintendent, which are important, and are of great interest to the welfare and proper management of the streets and property of the city. He is also required to give a bond, to be approved by the mayor, for the faithful discharge of his duties. Sections 1, 2, 3, 4, 5. The position of superintendent became vacant February 1, 1899, by the expiration of the term of the previous incumbent. In the following April the municipal civil service commission certified to the board of street commissioners the names of three persons appearing upon the eligible list prepared by the commission as the result of a competitive examination therefor. Upon the list were the names of Bolles, Balcom, and Seabury. Bolles stood highest, Balcom next, and Seabury last. Balcom and Seabury were both honorably discharged soldiers of the army during the late Civil War, and as such were entitled to preference over Bolles. Rule 14 of the local civil service commission, which was approved by the mayor and by the state civil service commission in 1898, provided that, when any officer having the power of appointment to or employment in any position in Schedule B (the competitive class) so requests, the commission shall certify to him the names, as soon as practicable, of three persons having the highest standing upon the eligible list, and the appointing officer shall thereupon appoint to the vacant position one of the three persons so certified to him, subject to any and all laws of the state of New York in relation to honorably discharged soldiers or marines of the Civil War, giving them preference under the civil service rules. On April 19, 1899, the legislature passed an act in relation to the civil service of the state, which took effect immediately. Chapter 370, Laws 1899. By section 13 it is provided: "Appointments shall be made to or employment shall be given in all positions in

the competitive class that are not filled by promotion, reinstatement, transfer or reduction under the provisions of this act and the rules in pursuance thereof, by appointment of those graded highest in open competitive examinations conducted by the state or municipal commission, except as herein otherwise provided." The state civil service rule relating to this subject is, in effect, a repetition of the statute itself. Rule 8. That the appointment of a superintendent is to be controlled by the statute of 1899, if valid, seems to be conceded by both parties. The special term held that the civil service law of 1899 was constitutional, and that it required the street commissioners to appoint to the office of street superintendent the veteran who stood highest upon the eligible list furnished by the local civil service commissioners. Upon appeal the appellate division held that the act of 1899 was unconstitutional so far as it required the appointment of the person standing highest upon such list, and reversed the judgment of the special term.

S. H. Ordway, for appellant. A. M. Sperry, for respondents.

MARTIN, J. (after stating the facts). The only controversy upon this appeal relates to the constitutionality of the civil service statute of 1899. The question involved is the power of the legislature to abrogate the right conferred by the state constitution upon the local authorities of a city to appoint such of its officers as are not directed by the constitution to be elected or otherwise appointed. Section 2, art. 10. The office of superintendent of streets and city property of the city of Binghamton falls within that statute, and, if valid, it is controlling as to the appointment of an incumbent of that office. The provisions of the constitution by which its validity is to be tested are section 2 of article 10 and section 9 of article 5. Section 2 provides: "All city * officers, whose election or appointment is not provided for by this constitution, shall be elected by the electors of such cities, * or of some

*

division thereof, or appointed by such authorities thereof, as the legislature shall designate for that purpose,"-while section 9 declares: "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 discharged 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."

In interpreting the constitution, it is to be

considered as a whole, complete in itself. Force is to be given to every provision contained in it, and each clause explained and qualified by every other. The words used must be presumed to have been employed in their natural and ordinary meaning, and if different portions seem to be in conflict they must be harmonized, if possible, and that construction adopted which will render every provision operative, rather than one which will make some idle or nugatory. Railway Co. v. Anderson, 3 Abb. N. C. 434;. People v. Angle, 109 N. Y. 564, 575, 17 N. E. 413; People v. Roberts, 148 N. Y. 360, 367, 42 N. E. 1082, 31 L. R. A. 399; People v. Rathbone, 145 N. Y. 434, 440, 40 N. E. 395, 28 L. R. A. 384; Smith v. Board of Sup'rs, 148 N. Y. 187, 189, 42 N. E. 592; Cooley, Const. Lim. 58. Therefore these two provisions should be construed together, giving force to both, and to each should be accorded its appropriate place and proper effect, with some office to perform, and at the same time they should be so construed as to operate harmoniously. We find no repugnancy between these sections of the constitution. Section 2 has been a part of the organic law of the state for many years, and obviously it was not intended to be superseded or changed, as no language was employed in the constitution of 1894 to indicate any such purpose. Moreover, the proceedings of the constitutional convention show that it was intended to be continued in force in its existing form. Section 9 was an amendment adopted in 1894. Both being part of the present constitution, the most that can be claimed is that they should be read and construed together. Reading the amendment of 1894 into section 2, it, in effect, provides that all city officers whose election or appointment is not otherwise provided for by the constitution shall be appointed by such authorities thereof as the legislature shall designate for that purpose, which appointments shall be made according to merit and fitness, to be ascertained by competitive examinations, so far as practicable. When thus read, it becomes manifest that under the constitution the power of appointment still remains in such local authorities as the legislature has designated for that purpose. No alteration in that respect has been made or attempted. The only change effected by the amendment of 1894 is the requirement that the local authorities in making such appointments shall make them "according to merit and fitness," to be ascertained by examinations, competitive or otherwise. The amendment relates only to the qualifications which appointees shall possess to justify their appointment under section 2, and the manner in which they shall be ascertained. Thus the power of appointment is still vested in the local authorities of the various municipalities of the state, and the amendment has wrought no change as to the officers or bodies who are to make such appointments. The result is the same whether these sections are read together or

separately. Section 2 in direct terms provides that such appointments shall be made by the local authorities. Section 9 plainly recognizes that method of appointment by providing for appointments in the civil service without any designation, express or implied, of any new or other authority by which they are to be made. All that is provided by that section is that appointments made by the proper appointing power are to be according to merit and fitness, but it in no way attempts to change or interfere with the authorities who are to make them. These provisions of the constitution show quite conclusively that the appointment of city officers whose election or appointment is not otherwise provided for by the constitution must still be made by such local authorities of the city as the legislature has designated for that purpose. While the legislature is authorized to designate the local authorities who are to appoint, yet, when they are thus designated their actual power becomes constitutional, and is controlled by that instrument. In this case the local authorities so designated to appoint a superintendent of streets and city property were the board of street commissioners of the city of Binghamton, and hence that board alone had power, under the constitution, to make an appointment to fill that office. Yet the special term, without permitting it to in any way exercise that power, held the statute of 1899 to be valid, and that under it the board had no right of selection or choice between the several candidates certified as eligible to the place, or between the two veterans who were so certified, but that it was absolutely bound to appoint the one veteran graded highest by the civil service commission, and granted a peremptory mandamus commanding the board to appoint that person.

If the civil service commissioners have power to certify to the appointing officers only one applicant of several who are eligible, and whom they have, by their own methods, ascertained to be fitted for a particular position, and their decision is final, or if, where more are certified, the one graded highest must be appointed, then the civil service commission becomes and is the actual appointing power. To reach such a result, however, it must be held that the word "appointment," as used in the constitution, is not to be given its usual and ordinary meaning, but may be so limited and restricted as to leave in the local authorities a mere ministerial duty, with no discretion or choice or responsibility in respect to the person to be appointed. Such a construction would completely nullify the provision of the constitution which confers the power of appointing city officers upon the local authorities of the municipality. A fair reading of the constitution leads to no such result. Early in the history of the civil service reform in this country the signification of the word "appointed" was considered in connection with the United States civil service statute. The United States attorney general, in

discussing that question, said: "If to appoint is merely to do a formal act (that is, merely to authenticate a selection not made by the appointing power), then there is no constitutional objection to the designation of officers by a competitive examination, or any other mode of selection which congress may prescribe or authorize. But, if appointment implies an exercise of judgment and will, the officer must be selected according to the judg ment and will of the person or body in whom the appointing power is vested by the constitution, and a mode of selection which gives no room for the exercise of that judgment and will is inadmissible. If the president in appointing a marshal, if the senate in appointing its secretary, if a court or head of department in appointing a clerk, must take the individual whom a civil service board adjudge to have proved himself the fittest by the test of a competitive examination, the will and judgment which determine that appointment are not the will and judgment of the president, of the senate, of the court, or of the head of department, but are the will and judgment of the civil service board, and that board is virtually the appointing power." 13 Ops. Attys. Gen. 516. A subsequent report of the United States civil service commission contained the following statement upon this subject: "The appointing power conferred by congress upon the heads of departments, under the strict terms of the constitution, is a power of choice,-a right of selection for appointment from among several. That opportunity of choice is inseparable from the power itself. A choice between four seems to preserve the authority of the appointing power, and to allow a sufficient variety of capacity for answering the needs of the public business. For both these reasons, a requirement that the applicant graded highest be taken would be indefensible." Report 1884. When we examine the report of the civil service commission of this state, we find that it is said: "It is a wise provision that the commission has no power to make appointments or removals, or even to recommend persons for appointment. Any authority of that character would be fatal to its usefulness, and an unwarrantable interference with sound principles of administration. Its sole duty in its subordinate sphere is to ascertain the fitness or qualifications of applicants for the service. The appointing power of all public officers remains unimpaired, and should so remain. But the field of selection is limited to those who have been ascertained to be qualified." Report 1885. The decisions of this and other courts, state and federal, as to the meaning of the word "appointment," and what constitutes an appointment under the law, are to the effect that the choice of a person to fill an office constitutes the essence of the appointment; that the selection must be the discretionary act of the officer or board clothed with the power of appointment; that, while he or it may listen to the

recommendation or advice of others, yet the selection must finally be his or its act, which has never been regarded or held to be ministerial. 19 Am. & Eng. Enc. Law, 423; Johnston v. Wilson, 2 N. H. 202; Hoke v. Field, 10 Bush, 144; People v. Fitzsimmons, 68 N. Y. 514; Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60; Craig v. Norfolk, 1 Mod. 122; People v. Murray, 70 N. Y. 521; Taylor v. Kercheval (C. C.) 82 Fed. 497, 499 Menges v. City of Albany, 56 N. Y. 374; Peo ple v. Angle, 109 N. Y. 564, 573, 17 N. E. 413. Thus, it is seen that the authorities upon the subject, and the opinions of those who have been connected with the civil service reform from its inception, all agree in the conclusion that the power of selection for a public office is and should be vested alone ir the officers or boards authorized to appoint, although it be limited to persons possessing the qualifications required by the civil service statutes and rules, and that at least some power of selection is necessary to constitute an appointment, which should be exercised by the local authorities, independently of the civil service commission. In Rathbone v. Wirth, 150 N. Y. 459, 468, 45 N. E. 15, 34 L. R. A. 408, section 2 of article 10 was under consideration by this court, and its purpose and force were there discussed. In delivering an opinion in that case, Judge Gray said: "The legislature is expressly authorized to designate the local authority who shall appoint the local officers, and it is impliedly prohibited from doing more than that, or from placing limitations upon this power of appointment. *** 'Every positive direction contains an implication against anything contrary to it, or which would frustrate or disappoint the purpose of that provision.' People v. Draper, 15 N. Y. 544." In further discussing that section and its purpose, the case of People v. McKinney, 52 N. Y. 374, was cited, where Judge Andrews said: "The obvious purpose of the provision of the constitution which has been quoted (section 2, art. 10) was to secure to the people of the cities, towns, or villages of the state the right to have their local offices administered by officers selected by themselves." He also quotes from the opinion of Judge Allen in People v. Albertson, 55 N. Y. 50, the following language: "The theory of the constitution is that the several counties, cities, towns, and villages are, of right, entitled to choose whom they will have to rule over them, and that this right cannot be taken from them, and the electors and inhabitants disfranchised, by any act of the legislature, or of any or all the departments of the state government combined."

Assuming, then, in the further discussion of this question, that the purpose of this provision of the constitution was to vest in the local authorities designated by the legislature the power of appointment, and to secure to each municipality the right of self-government, we are led to an examination of the statute of 1899 in the light of these constitu

tional provisions and the decisions under them. As we have already seen, the right of appointment, of necessity, involves the power of selection and the exercise of discretion and judgment. Without that power in no just sense can it be said that the right exists. If the act of 1899 is valid and bears the construction accorded to it by the special term, then the local authorities designated by the legislature to appoint a superintendent of streets and city property are absolutely deprived of any power of selection. but are required to name the person graded highest. In other words, the real power of appointment is transferred from the authorities in which it is vested by the constitution to the civil service commissioners. Moreover, by section 10 of the act of 1899, if the mayor for any reason fails to appoint municipal civil service commissioners, the right to appoint them is conferred upon the state commission until the expiration of the term of the mayor then in office, and until their successors are appointed and qualify. The state commissioners are also authorized to remove any municipal civil service commissioner for cause. Therefore there may be circumstances under which the selection of all the appointive officers of a city will be controlled by the state civil service commissioners, and thus the people and the local authorities of the municipality be deprived of any voice in the selection of its officers. If it be said that no such condition has arisen in this case, the answer is that the validity of this statute must be determined by the nature, character, and scope of the powers attempted to be conferred, although they may not have been actually exercised. Stuart v. Palmer, 74 N. Y. 183; Coxe v. State, 144 N. Y. 396, 39 N. E. 400; Gilman v. Tucker, 128 N. Y. 190, 28 N. E. 1040, 13 L. R. A. 304; Colon v. Lisk, 153 N. Y. 188, 194, 47 N. E. 302. I fancy it would be difficult to imagine a construction of the constitution which would more completely surprise the inhabitants of the various municipalities or political divisions of the state, or that would work greater injury to fair and proper civil service reform, than one which should hold that the principle of local selfgovernment for the cities, villages, and other municipalities of the state has been so far abrogated by the amendment of 1894 that .the power of appointment of their local officers may be transferred from the local authorities to a centralized commission of state appointees, and thus the principle of local self-government practically destroyed. Although this court, in effect, held that the statute of 1883, and the rules adopted by the civil service commissioners under it, which required that officers to be appointed should be selected from the highest three on the eligible list, was valid (People v. Roberts, 148 N. Y. 360, 42 N. E. 1082, 31 L. R. A. 399; Chittenden v. Wurster, 152 N. Y. 345, 358, 46 N. E. 857, 37 L. R. A. 809), still, when the legislature has, by statute, undertaken to de