Chittenden v. Wurster (152 N.Y. 345, 1897)

Haight, J.

This action was brought by taxpayers of the city of Brooklyn against the fiscal officers of the city and eleven individuals who were appointees in the various departments of the city government to enjoin and restrain the fiscal officers of the city from paying to any of the appointees the salary earned by them respectively.

The eleven employees were appointed to the positions held by them since the first day of January, 1895, without competitive examination ; and the claim is that such examination in each case was practicable, and that every appointment without such examination was in violation of the provisions of the Constitution which went into force on that day.

Civil service first had its introduction in this state in the year 1883 by the passage by the legislature of chapter 354. That act has been several times amended; it related to appointments to be made in the civil service in the state and cities; and at the time of the adoption of the new Oonstitu- , tion, in substance provided that the governor, with the advice and consent of the senate, should appoint three persons as civil service commissioners of the state; that they should aid him in preparing suitable rules for carrying the provisions of the act into effect; and when the rules should be promulgated, it should be the duty of all officers of the state, in the departments and offices to which such rules relate, to aid in all proper ways in carrying the rules into effect. The rules were required to provide and declare,- as nearly as the conditions of good administration will warrant: “ 1. For open competitive examinations for testing the fitness of applicants for the public service now classified or to be classified liereunder. Such examinations shall be practical in their character, and, so far as may be, shall relate to those matters which will fairly test the relative capacity and fitness of the persons examined to discharge the duties of that service into which they seek to be appointed. 2. All the oifices, places and employments so arranged or to be arranged in classes, shall be filled by selections from among those graded highest as the results of such competitive examinations. * * * 7. There shall be noncompetitive examinations when competition may not be found practicable.”

It was made the duty of the governor, within four months, to cause to be arranged in classes the several clerks and persons employed or being in the public service, for the purposes of an examination, and he was required to include in one or more of such classes, so far as practicable-, all subordinate places, clerks and officers in the public • service of the state. Thereafter no officer or clerk was permitted to be appointed, admitted or promoted in either of the classes arranged by the governor until he had passed an examination or had shown himself to be exempted from such examination. It was made unlawful for the comptroller to draw his warrant for the payment of any salary or compensation to any officer, clerk or other person in the public service of the state in either of the classes arranged by the governor, who was not certified as having been appointed in pursuance of the law and of the rules and regulations made thereunder. In each of the cities of the state in which rules and regulations had been adopted under the provisions of the act, every officer thereof whose duty it was to sign or countersign warrants, was prohibited from signing or issuing any warrant on the treasurer, or other disbursing officer of such city, for the payment of the salary of any person in its service whose appointment had not been made in pursuance of the provisions of the act and of the rules in force thereunder, and any sums paid contrary to the provisions of the act, it was provided, might be recovered from any officer signing or countersigning warrants for the payment of such salaries, and from the sureties on his official bond, in an action in the Supreme Court maintained by any resident citizen taxpayer. (Section 7, as amended by L. 1894, ch. 681.)

It was further provided that (§ 8): “ The mayor of each city in this State is authorized, and is hereby directed, to prescribe such regulations for the admission of persons into the civil service of such city as may best promote the efficiency thereof and ascertain the fitness of candidates-in respect to character, knowledge and ability for the branch of the service into which they seek to enter, and for this purpose he shall, from time to time, employ suitable persons to conduct such inquiries and make examinations, and shall prescribe their duties and establish regulations for the conduct of persons who may receive appointments in the said service. And the regulations so to be prescribed shall, among other things, provide and declare as in the second subdivision of the second section of this act is provided and declared in reference to regulations for admission to the civil service of the state. Within two months after the passage of this act it shall be the duty of each of said mayors, in and by such regulations, to cause to be arranged in classes the several clerks and persons employed or being in the public service of the city of which he is mayor, and he shall include in one or more of such classes, so far as practicable for the purposes of the examination herein provided for, all subordinate clerks and officers in the public service of the said city to whom his ¡lower under this act extends. After the termination of three months from the passage of this act no officer or clerk shall be appointed, and no person shall be admitted to or be promoted in either of the said classes now existing or that may be arranged hereunder pursuant to said rules, until he has passed an examination, or is shown to be exempted from such examination, in conformity with such regulations. Such regulations hereafter prescribed and established, and any subsequent modification thereof, shall take effect upon the approval of the Hew York Civil Service Commission. * * ' * It shall be the duty of all those in the official service of any such city to conform to and comply with any regulations made pursuant to this act, and to aid and facilitate in all reasonable and proper ways the enforcement of all regulations and the holding of all examinations which may be required under the authority conferred by this section. * * * And all examinations herein authorized shall be public, and all regulations shall be published.” (As amended by L. 1894, ch. 410.)

Under .the provisions of this statute it was made the duty of the mayor of the city of Brooklyn to arrange in classes all clerks and persons employed in the public service of the city, and to include in one or more of such classes, so far as practicable for the purposes of a competitive examination, all the subordinate clerks and officers in the public service of the city.

In compliance with these provisions, the Honorable Seth Low, then mayor of the city, did prescribe rules and regulations for the admission of persons into the public service of the city, and did arrange a class known as “ Schedule A,” in which were enumerated the positions in which he did not deem a competitive examination practicable; and another class known as “ Schedule B,” containing positions in which he required a competitive examination as a condition precedent to an appointment. Among others he classified as positions in “ Schedule A ” that of clerk to the committees of the board of aldermen, warrant clerk in the department of finance, dock-master in the department of finance, chief clerk in the department of audit and law clerk in the department of law. These rules and regulations went into operation under his administration and ever since have continued to be in force, except as to the following modifications made by his successors : Mayor Charles A. Schieren classified the clerk in the department of health, the surveyor in the department of assessments, the secretary in the department of buildings, and the deputy license clerk in the city clerk’s office, in “ Schedule A; ” and Mayor F. W. Wurster, one of the defendants herein, classified the license fee collector in the department of fire in “ Schedule A.” The head of each of these departments was required to and has given the usual official bond. The eleven appointees, defendants, were appointed to the positions above named, classified in “ Schedule A.” They were not, therefore, required to pass a competitive examination, unless the classifications made by the mayors were in conflict with the provisions of the Civil Service Statute, or violative of the provisions of the Constitution.

The Constitution, article 5, section 9, provides that “ 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. Laws shall be made to provide for the enforcement of this section.”

The concluding clause, to the effect that laws shall be made to provide for the enforcement of this section, would seem to indicate that it was within the contemplation of the constitutional convention that some legislation would be necessary. The Civil Service Statutes were limited to the state and the cities. The Constitution extends the civil service to all the civil divisions of the state, including villages. Counties and towns are the civil divisions of the state, and are, therefore, with villages, now included in the civil service. Appointments and promotions “ shall be made according to merit and fitness.” This provision is doubtless mandatory. It asserts a duty which has always existed, and devolves upon every appointing officer of ascertaining the merit and fitness of the persons appointed by him to official positions. Then follows the provision : “ To be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive.” In order to have a satisfactory and effectual competitive examination there must be some person to examine and decide, some place fixed, and notice given in order that the applicants may be able to appear and have a hearing. The Constitution has made no provision with reference to the appointing of examiners, or for the manner in which the examinations shall be made, or how the qualifications of the applicants shall be determined. This it has left to the legislature. This view is in accord with the former determinations of this court.

In the Sweeley Case (12 Misc. Rep. 174), Judge Herrick, in discussing this provision of the Constitution, says that it does not prescribe the rules by which it may be enforced, and that it needs legislation to give it life. This case was affirmed by this court without opinion (146 N. Y. 401), and his opinion was especially commended by Judge Bartlett in the Keymer Case (148 N. Y. 219, 224). In the McClelland Case (91 Hun, 101) the same judge discussed this question more fully, and held that the execution of this provision was dependent upon the statute. That case was also affirmed by this court (148 N. Y. 360), and the opinion below was commended by O’Brien, J., who said, with reference to this clause of the Constitution, that it is subject to legislative regulation as to the mode and manner of appointment, and is brought within the operation of general laws on that subject. It is true that in another place he stated that, “If the legislature should repeal all the statutes and regulations on the subject of appointments in the civil service the mandate of the Constitution ■would still remain, and would so far execute itself as to require the courts, in a p>roper case, to pronounce appointments made without compliance with its requirements illegal.” But, in making this statement, he had reference to the mandatory-provision already alluded to, as appears from the clause immediately preceding, and not to the necessary machinery for the conducting of a competitive examination. This is ajiparent from another expression appearing in his opinion in which he refers to the provision and states that “it was framed and adopted with reference to existing laws which were intended to give it immediate practical operation.” This view is in harmony with that now entertained by us. The provision is mandatory in the respects alluded to, but, as to the machinery necessary for the conducting of a competitive examination, its execution to that extent is dependent upon the statute. In counties, towns and villages, no examiners have been provided or provisions made for the carrying of this clause into effect. It is said that each officer having appointments to make could himself examine the applicants for position, and- in that, way determine who should be the appointee by a competitive examination. Undoubtedly, but it will readily be seen that this system would practically nullify the Civil Service Law and bring it into disrepute. The learned counsel for the respondents says that there was “ neither statutory nor executive machinery for putting the amendment into effect in villages, so it may be well that as t dages the amendment will, until there shall be legislation, remain ineffectual.” We quite agree with him in this regard. What is true with reference to villages is also true with reference to counties and towns. This question has just been considered by us in the case of People ex rel. Inebriates' Home for Kings County v. Comptroller of Brooklyn (152 N. Y. 399), to which we here refer for a further discussion of the question.

There were, however, in existence at the time of the adoption of the Constitution the statutes to which we have alluded, which do provide the necessary machinery for carrying into effect the provisions of the Constitution in the state and cities; so that, upon its adoption, in the language of O’Brien, J., in the McClelland case, “it had immediate practical operation.”

Article 1, section 16, of the Constitution provides that “ such acts of the legislature of this state as are now in force, shall be and continue the law of this state, subject to such alterations as the legislature shall make concerning the same. But all such parts of the common law, and such of the said acts, or parts thereof, as are repugnant to this Constitution, are hereby abrogated.”

Are the provisions of the Civil Service Act repugnant to the provisions of the Constitution? In the Keymer Case (supra) we held that the provision of chapter 344 of the Laws of 1895, which exempted honorably discharged soldiers and sailors in the late civil war from competitive examination, where the compensation did not exceed four dollars per day, was in conflict with the provisions of the Constitution. Bui our attention has been called to no other clause of the statute which appears to us to be repugnant to the Constitution. O’Brien, J., in the McClelland case, says that it was “ framed and adopted with reference to existing laws.” In the Sweeley Case (supra) it was said : “ The Civil Service Law of the state, as it was prior to the adoption of the new Constitution, is, with the' exception of the acts which have been passed relative to soldiers, in harmony with the Constitution.” It is claimed that the Constitution prescribes a different rule for the ascertainment of the merit and fitness of those who are candidates for appointment from that provided in the statute. It is, as we have seen, that the merit and fitness shall be ascertained, so far as practicable, by competitive examination. The statute provides that the governor shall adopt rules which shall provide, as nearly as the conditions of good administration will warrant, for open competitive examination, for testing the fitness of applicants. And again, “ He shall cause to be arranged in classes the several clerks and persons employed or being in the public service, for the purpose of examination herein provided for, and shall include in one or more of such classes, so far as practicable, the subordinate places, clerks and officers in the public service of the State.” And with reference to the cities, the statute provides that the mayor shall prescribe regulations for the admission of persons into the civil service “ as may best promote the efficiency thereof, and ascertain the fitness of candidates in respect to character, knowledge and ability, for the branch of the service in which they seek, to enter.” And again, “He shall cause to be arranged in classes the several clerks and persons employed or being in the public service of the city of which he is mayor, and he shall include in one or more of such classes, so far as practicable, for the purposes of examination herein provided for, all subordinate clerks and officers in the public service of said city,” &c. It will be seen that the language used with reference to the classification in the state by the governor, is, “ The several clerks and persons employed,” while that pertaining to the city is, “ all subordinate clerks and officers.” It is not pretended that the constitutional provision was intended to apply to the heads of departments, but that it only has reference tó the subordinates. The statute requires classification for competitive examination, “ so far as practicable ; ” the provisions of the Constitution are to the same effect. It consequently appears to us that the existing statutes, in so far as they have been considered, with the exception mentioned, aro in harmony with the provisions of the Constitution.

We are thus brought to a consideration of the question as to whether the classification made by the mayors of Brooklyn is legal. As we have seen, with the exceptions noted, it has existed for nearly thirteen years without question. This fact, however, may not excuse us from now considering the question, in view of the fact that changes have been made which would render the doctrine of practical construction inapplicable. Iu determining this question, we must have reference to the mandate of the Constitution and of the statute requiring competitive examination so far as practicable.

It was evidently contemplated that there were positions in which a competitive examination was not practicable. (Matter of Keymer, 148 N. Y. 219.) The counsel for the respondent conceded this, and in his oral argument mentioned a position in the health department, and in his brief, “ a private secretary, or an officer or attendant especially assigned to an executive or judge.” The reasons for exempting the private secretary of the governor, or the personal attendant upon a judge, exist with equal force with reference to many other positions, and it would be manifestly unjust to limit the exceptions to the positions named. In order to determine whether the examination of a candidate for an office is practicable, we must first ascertain the nature and character of the duties of his position. Having ascertained the facts, the question of exemption then, doubtless, becomes one of law, as was held by the majority of the judges composing the Appellate Division. In the classifications which have been heretofore made in the state and cities, there has been a reservation from competitive examinations of those occupying confidential relations to the appointing officer; this it is now claimed is unauthorized, for the reason that confidential relations are not mentioned in the Constitution. It is conceded, however, by the respondent’s counsel that, as to the positions mentioned by him, they ought to be excepted. Confidential positions must be classified either one way or the other. Competitive examination is or is not practicable as to such positions. We have carefully read the evidence in this case, and not a ivord have we found tending to show that a competitive examination is practicable for a position where the appointee is to receive, open, read and answer the letters of his chief, where he is to counsel and advise him with reference to the conduct and management of his office, sign his name to checks or warrants, collect and pay out his money, have the combination of his safe and the custody and control of its contents. A candidate may be ever so competent and still lack many of the necessary elements of a trustworthy officer; he may be ever so learned and still lacking in judgment and discretion ; he may be discreet and still without character; he may be honest and yet meddlesome and a person in whom you could not confide. To our minds the framers of the Constitution or of the statutes never contemplated or intended that a competitive examination was practicable for such a position.

What places should then be included in the confidential list ? This question may not be easy of solution. Facts may arise with reference to positions which are now unknown, or not presented by the record before us, which we cannot foresee or now consider. We can, therefore, only speak generally upon the subject, leaving individual cases for consideration when they arise. We think the Civil Service Laws should have a reasonable interpretation and should be made as practical as possible, and that we should avoid a construction rendering them so burdensome as to array public sentiment against them. We have recently had occasion to consider this question to some extent in the Crummey Case (152 N. Y. 217). That case arose under another statute, but was so closely akin to that under consideration as to give it an important bearing. We then regarded and still consider that case upon the border line, beyond which we should not go. We then were of the opinion that where the duties of the position were not merely clerical, and were such as especially devolved upon the head of the office, which, by reason of his numerous duties, he was compelled to delegate to others, the performance of which required skill, judgment, trust and confidence and involved the responsibility of the officer or the municipality which he represents, the position should be treated as confidential. We have not changed our views upon the subject. We think that this rule, properly applied, will not prove unreasonable, and that it will not exempt from examination many positions. It doubtless would relieve one warrant clerk in an office where the duties were the same as those which devolve upon Ortunmey; but the work of an office would have to be great, and it would have to distinctly appear that one could not discharge the duties of the position in order to justify the exemption of more than one. We have said that we did not think this rule would prove unreasonable ; should time and experience prove that we are in error in this regard, we shall not hesitate to apply further limitations, so as to carry out the spirit and intent of the law.

We are urged to limit the positions in the confidential class to those which are strictly secret. Most of the public offices are conducted openly, and every citizen has the right to know what transpires. The strictly secret positions authorized are comparatively few, and are of far less importance than those where the appointee is intrusted with the drawing and signing of warrants for the payment of millions of dollars of the public money. Such a construction would be too narrow and burdensome, and we think not justified. As to the other positions in which competitive examination is not practicable, the statute itself furnishes a satisfactory rule; it provides as follows : “ Officers elected by the people and the subordinates of any such officer, for whose errors or violation of duty such officer is financially responsible, and the head or heads of any department of the city government and persons employed in or who seek to enter the public service under the educational departments of any city, and any subordinate officer who by virtue of his office has personal custody of public moneys or public securities, for the safekeeping of which the head of an office is under official bonds, shall not be subject to the regulations prescribed pursuant to this section.” (§ 8, as amended by L. 1884, ch. 410.) This statute bears the impress of careful study and thought. Under our system of government it has been thought wise to hold public officials to strict accountability for the management of their offices and for the faithful accounting for public moneys coming into their hands. So strict is the law in this regard that in most eases they are held responsible for losses which occur even without their fault. (Tillinghast v. Merrill, 151 N. Y. 135.) To insure an accounting they are required to give official bonds. If they delegate to appointees the handling of public moneys, they still remain responsible for their acts and usually protect themselves by requiring such appointees to furnish bonds. All these facts were evidently taken into consideration in framing the provision in question. It was not thought to be just to hold an official responsible for the acts of an employee who necessarily had the custody of public moneys when the official had no choice in his selection. Under the rules established by the civil service commission, the appointment must be made from a list of three who are certified as standing the highest. Neither of the three persons may be personally responsible. The officer has no power to demand a bond or other security; and yet, upon his own personal responsibility he may be compelled to intrust the appointee with the handling of the entire tax receipts of a state, or of a large and populous city. The legislature was not willing to release officials from responsibility for public moneys, and it did not deem a civil service examination as practicable or a sufficient protection to such officers; it, therefore, and we think properly, exempted such positions from the general operation of the act.

The provision with reference to those seeking to enter the employment of the educational departments of the city relates to teachers in schools. There are other statutes which require them to pass an examination and obtain a certificate before they can be employed. This examination was deemed equivalent to that required under the Givil Service Acts, and they consequently were exempted. The positions embraced in the above provision of the statute, together with those included in the confidential list, constitute the exempt class, commonly known in the classification as “ Schedule A.”

In view of the disposition to be made of this case, we are not now called upon to determine the respective claims of the eleven appointees. We have reached the conclusion that this action ought not to be maintained. The heads of the departments making the appointments had. nothing- to do with the classification; that duty devolved upon the mayor. Under the classification made each of the positions in controversy was placed in “ Schedule A.” The positions in “ Schedule A” required no examination, and consequently no lists were prepared by the examiners from which such positions could be filled. It is not pretended that the mayor was corrupt, dishonest, or that he was actuated by improper motives in making the classification. The duty devolved upon him under the statute; and, until the contrary appears, we must assume that he acted conscientiously and upon his best judgment. Such a classification is not void ; it may be voidable, for his action is subject to review; but, until it is judicially determined that his classification was erroneous, it is a protection to the subordinate heads of departments and employees acting thereunder. The appointments were made in accordance with the statute and the classification as it then existed. They could then be made in no other way; and, until the proper classification had been made, the appointments must be deemed valid. (Curtin v. Bar ton, 139 N. Y. 505.) The same conditions would exist with reference to the positions vacated by the removal of the incumbents, in case this judgment should be affirmed. There would be no lists from which new appointments could be made. Under the system in force, the examiners prepare a list for each office to be filled in the competitive schedule, and the appointments have to be made from that list. The examinations have reference to the particular duties to be performed; consequently, a list prepared for bookkeepers would not answer for surveyors, nor a list for warrant clerks supply applicants out of which doctors could be appointed upon the board of health. While lists have been prepared -for the places enumerated in “ Schedule B,” none have been made for the positions in the exempt “ Schedule A; ” so that, before the head of a department could fill a position made vacant by this judgment, he would have to go to the mayor, get him to revise the classification, and put the position in “Schedule B.” Tie would then have to wait until the examiners could publish the proper notice, make the examinations and prepare a list out of which the appointment could be made. Should the mayor refuse to revise his classification, then the head of the department would be powerless to fill the position, except in the manner in which the defendant’s appointments were made. It is said that the mayor would make the change in the schedule upon the application of the heads of the departments. Very likely; but whether lie would or not, we are not advised. We are considering the legal proposition founded upon the record before us. It does not disclose any willingness on his part to change the classification. The change has not been made, and in determining the legal proposition, we must treat the case accordingly.

The people are not, however, without a remedy. There is one which is very simple and effective; if the mayor refuses to do his duty, or if he does it improperly, he may be compelled by direct proceeding, as by mandamus, or perhaps in some cases by certiorari, instituted by any resident citizen, to do it in accordance with the requirements of the Constitution and of the statute. The courts have the power to compel the discharge of such duties. By making the classification conform to the statute, heads of departments and officers acting thereunder, making appointments, will not subject their appointees, dependent upon compensation for their' services, to the loss of wages earned or salaries accrued. In this situation it is obvious that the taxpayers’ action is not the appropriate remedy. (Laws 1887, chap. 673; People ex rel. Boltzer v. Daley, 37 Hun, 461, 466; People ex rel. Wright v. Common Council of Buffalo, 16 Abbott’s N. C. 96; affirmed, 38 Hun, 637, on opinion below; appeal dismissed, 101 N. Y. 640; People ex rel. Smither v. Richmond, 5 Misc. Rep. 26, 29; People ex rel. Overton v. Board of Trustees of the Village of Whitestone, 71 Hun, 188; People ex rel. Stephens v. Halsey, 37 N. Y. 344; People ex rel. Case v. Collins, 19 Wendell, 56.)

We have to say in conclusion that the duty rests upon the legislature and the courts to enforce the civil service provisions of the Constitution in their letter and spirit.

We doubt not that at an early day the legislature will supplement the existing civil service laws by such additional enactments as will cover all the civil divisions of the state, including villages, and furnish a complete system for carrying out the mandates of the Constitution.

We have endeavored to solve the complicated problems presented by this appeal so that the appointing officer, the fiscal agent and the appointees shall be protected until final judgment can be had as to the correctness of classification, and at the same time we have pointed out to the citizen the remedies by which he can secure the enforcement of civil service provisions contained in the Constitution and the statutes.

The judgment should be reversed and the complaint dismissed.

Gray, J.,

(dissenting). This action was brought by certain taxpayers of the city of Brooklyn against the mayor and the other fiscal officers of the city and eleven individuals, who had been appointed to various positions in the municipal service, for the purpose of obtaining a judgment which should restrain the payment of the salaries of such appointees. These appointments were made subsequent to the 1st day of January, 1895, and' the positions were as follows: Clerk to the committees of the board of aldermen; assistant warrant clerk in the department of finance; dock-master in the department of finance ; chief clerk in the department of audit; law clerk in the department of law; surveyor in the department of assessment; finance clerk in the department of health; license fee collector in the department of fire; secretary in the department of buildings; clerk to the commissioner of city works, and deputy license clerk in the city clerk’s office. The complaint charged that these appointments had been made without the appointees having been subjected to competitive examinations to ascertain their merits and fitness and that, for the failure to comply with the law, the appointments were illegal. The answers admitted the allegation of the complaint with respect to the manner of the appointments and alleged 'that the defendant city officials, who were charged with the duty of the payment for services performed, intended to perform that duty as to the defendant appointees. The answer further alleged, with respect to each of the appointees, that he was duly appointed to his position.

Upon-the trial of the action the plaintiffs adduced evidence, by the examination of witnesses and in the production of a large number of documents, consisting of examination papers, reports, various civil service regulations, etc., to show that competitive examinations for all the appointments mentioned in the complaint were practicable. Uo witnesses .were called in behalf of the defendants, and the only evidence adduced by them consisted in showing, by stipulation and by certain letters addressed by Mayors Schieren and Wurster to the civil service commissioners between March, 1894, and February, 1896, that the positions of the defendant appointees, in the several departments, had been assigned to Schedule “ A,” which is the non-competitive schedule under the civil service regulations, before the appointments were made.

At the Sjiecial Term, the trial justice stated, among the grounds of his decision, that each of the defendant appointees to positions in the city of Brooklyn had been appointed “ without an ascertainment of his merit and fitness for such position by competitive examination; ” and “ that it was and is practicable to ascertain the merit and fitness of a person to be appointed to each of said positions by competitive examination.”

I think that the right to maintain this action turns, in the first place, upon the existence of any authority in the law for it and, in the second place, upon the effect which the insertion into the present Constitution, of the civil service section (Art. V, sec. 9), had upon existing statutes and'political conditions. In view of the objection that an action in this form will not lie, its prior discussion seems the more appropriate. Authority for it must be found in the provisions of the Code of Civil Procedure and in chapter 673 of the Laws of 1887. Section 1925 of the Code provides that “ an action to obtain a judgment preventing waste of, or injury to, the estate, funds, or other property of a county, town, city or incorporated village of the state, may be maintained against any officer thereof, * * * by a citizen, resident therein, * * * who is assessed for and is liable to pay, * * * a tax,” etc. This section was a revision of chapter 161 of the Laws of 1872, which was the first enactment upon the subject. The act of 1887 provided for an action against “ all officers, agents, commissioners and other persons acting, * * * for and on behalf of any * * * municipal corporation in this state, * * * to prevent any illegal official act on the part of any such officers, * * * or to prevent waste or injury * * * to any property, funds, or estate of such * - * municipal corporation.” Upon a consideration of the broad application, which has been given to these statutory provisions by the decisions of this court, I do not think that the inquiry into the right of these plaintiffs to maintain this action can be said to be really open to us in the present case. The Taxpayers’ Act was passed by the legislature with the intent thereby to provide a sufficient and ready remedy against all acts of public servants and agents, deemed wrongful and by which taxpayers might be prejudiced. They were, in great measure, helpless before; and the act ivas designed to furnish them a legal remedy, by way of a civil action to prevent injury to the municipal estate, or the commission of illegal official acts. There have been pertinent instances of actions brought under the authority of the statute; to some of which I will refer. Rogers v. City of Buffalo (123 N. Y. 173), was an action brought by a taxpayer of the city to restrain the common council, mayor, etc., of the city from paying the salary of the street and health inspector, on the ground that his appointment was in violation of the Civil Service Law, and a recovery was sustained. Talcott v. City of Buffalo (125 N. Y. 280), was an action by a taxpayer of the city to restrain the municipal authorities from substituting electric street lighting for that of gas in certain parts of the city. The question for determination there ivas, whether a taxpayer can maintain an action to restrain the governing body in a city from official action, within its power and discretion, in the absence of some charge of fraud, collusion, corruption or bad faith. It was observed that the terms “waste” and “injury” used in the statute, which gives a right of action to a taxpayer as against municipal officers, comprehend illegal, wrongful, or dishonest official acts and were not intended to subject official action to the supervision of judicial tribunals, where it was within the jurisdiction and discretion of the officers or municipal bodies. If the municipal authorities had not had the power to provide for the regulation and lighting of the city’s streets, so as to leave the method to be adopted within their discretion, our decision would have upheld the judgment recovered beloAV, because of the illegality of the municipal action. Improvidence, or lack of Avisdom, Avould not Avarrant such an action. Zeigler v. Chapin (126 N. Y. 342), Avas an action brought by a taxpayer of the city of Brooklyn against the mayor and other officials to annul a contract made by them for the purchase of the property of a water company. It Avas there held that the action Avas main-tamable, upon the ground that the contemplated purchase by the mayor and his associates was beyond their authority and illegal. It was said that “ the action authorized by section 1925 of the Code is one which the taxpayer may bring against the public officer because of some fraud or bad faith on his part, or to restrain some illegal action.” Peck v. Belknap (130 N. Y. 394), was an .action brought by a taxpayer of the city of Rochester to restrain the mayor from entering into a contract of employment with the defendant Belknap and to restrain the city clerk and treasurer from paying him any moneys. The ground of the action was that Belknap had not passed the civil service examination. It was held that Belknap’s admission into the service of the city was plainly illegal; because, under the disqualification of the Civil Service Law, the city could not employ an individual not eligible under the law. It was held that, under section 1925 of the Code of Civil Procedure and chapter 673 of the Laws of 1887, an action is expressly authorized for the protection of taxpayers against municipal officers, to prevent any illegal official acts on their part, or to prevent waste, or injury, to the property or funds of the corporation.

It seems to me that these cases have fully committed this court to the doctrine that the statutes comprehend all cases, where the wrong to be remedied consists either in a waste of, or an injury to, the municipal estate, through corrupt official action, or through action in abuse of the powers conferred on municipal bodies, or in the commission of illegal official acts. Ror should the scope of the remedy given by the legislature be too much restricted by construction. As it was said in Ayers v. Lawrence (59 N. Y. 192), which was the first case in this court of an action brought under the Taxpayers’ Act, “ in the construction of laws of the character of that under consideration, too much stress should not be laid on the strict and precise signification of words, but they should be construed liberally, with a view to the beneficial end proposed, to wit, the suppression of the mischief and the advancement of the remedy.” It was there observed of the law, that its language was “ sufficiently comprehensive to embrace every wrong by which taxpayers may be prejudiced, as within the purview of the act, if not within the literal and precise meaning of the words.” Upon this head of the appeal, I am not inclined to entertain any doubt as to the right of the plaintiffs to bring their action to prevent the defendant Brooklyn city officials from paying salaries to those defendants, who are alleged to have been appointed to positions in the municipal service without a competitive examination as to their merits and fitness, as prescribed by law, and to be, therefore, holding such positions illegally.

We have, then, to consider what was the effect of the insertion into article Y of the Constitution, as amended in 1894, of section 9, which reads 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 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. Laws shall be made to provide for the enforcement of this section.”

I believe this state to be the only one where such a provision affecting its civil service has, thus far, been made a part of its fundamental law, and we are bound to assume, by reason of its presence there, and by reason of all the circumstances attending its insertion, that it was a most deliberate expression of the views of the representatives of the people. In the consideration of the object and purport of a constitutional provision, it is useful to regard the circumstances attending, and leading to, its insertion. The reform of the civil service had long been the subject of discussion and of legislation, here and elsewhere. Examinations, whereby appoint-merits to places in the public service might rest upon merits and fitness, had been provided for in England, some years before the first of our acts upon the subject was passed in 1883. It became evident there, as here, that they were of great value as agencies for the improvement and elevation of the public service, and the project of civil service reform made rapid progress. Hot only in that most important resjiect, but, also, in the personal gain to the executive heads of departments, who were relieved of the burden and the responsibility of selecting competent subordinates, it commended itself to the general approval. The people of the state have now formally and solemnly declared at the polls that appointments to public places shall be made upon the basis of merit and fitness, to be ascertained, so far as practicable, by competitive examinations. Their will in that respect has been expressed in the most impressive manner, by being embodied in the fundamental law of the state.

That it should be given full effect, no one will deny and one of the questions, which confronts us, is whether, as the appellants contend, it can only become operative through legislative provisions. They argue that the provisions of this section simply indicate the principles, in accordance with which appointments must be made, and that, being affirmative in character, they are not self-executing, until a law is passed providing for some method of determination and classification in accordance with those principles. The argument, while having some force, in so far as the civil divisions of the state, other than cities, are concerned, where the legislature has failed to make a classification, or to provide some adequate machinery, through regulations or boards of examiners, fails to appreciate the positive and imperious nature of this constitutional mandate. The argument would make of the provision a direction, without imperative force. This is not the presumption we may indulge in, when we read the language and consider the very apparent design to protect the people against the evil effects of unfitness in those filling subordinate positions in the public service. From the time that the revised Constitution of 1891 went into effect, it commanded that all appointments should be made according to merit and fitness, to be ascertained, when practicable, by the test of competitive examinations. Every officer, charged with the duty of appointing his subordinates in office, in taking his oath of office, bound himself to obey it as the supreme law of the state and to carry it into effect as faithfully as it was in his power. It needed no legislation to give force to the command; however legislation might be needed, in order that the appointing officer might be enabled by the aid of proper machinery to competently fulfill his oath in making appointments. To use an illustration of the respondents’ counsel, the neglect or refusal of the legislature to pass appropriate laws, might make the constitutional command as ineffectual, as would be the case of its failure to obey the command to provide for a constitutional convention every twenty years. Would the command be any the less imperative ? There is much more in this section than an indication of the principles upon which appointments must be made; there is the establishment of a fundamental principle, which, while the constitutional provision remains, is a supreme law for the state and which is self-executing in all cases, where the legislature has provided the ways and means for compliance with its requirements.

The provision in the section, that “laws shall be made to provide for the enforcement of this section,” re-enforces its positive command. So far as laws do not already exist, which permit the mandate to be effectual, there shall be further legislation in the line of regulations. I do not see how the Sturgis Case (152 N. Y. 11), which arose under the lottery clause of the Constitution (Art. 1, sec. 9), and to which counsel refers, commits us to any different view of the language of this section. It was there held that the lottery section was not intended to be self-executing; because of its language, that “the legislature shall pass appropriate laws to prevent offenses against any of the provisions of this section.” This was an express delegation of authority to the legislature to enact laws, by which the section should be given force. The legislature was, in effect, directed to enact laws for the definition, prevention and punishment of crimes coining within the general language of the section, which forbade that any lottery, poolselling, bookmaking, - or any other kind of gambling, shall “ be authorized or allowed within this state.” That section is very different in its language from the one we are considering; where we have the positive and unmistakable utterance of a command upon the subject of appointments and where the only room for legislation is in the sphere of providing ways and means for a general and faithful compliance by executive officers.

I have suggested that the section was framed as a deliberate expression of the views of the representatives of the people in the constitutional convention, held in the year 1894. Civil service reform had then passed the tentative stage. In 1883 an act had been passed relating to appointments in the civil service of the state, which provided for the making of rules and regulations for the examination of persons seeking admission into the civil service of the state, or of the cities of the state. (Chap. 354, Laws of 1883.) The original statute had been made the subject of many amendments, down to the legislative session of 1894. Regulations had been promulgated, by the governor and by mayors of cities, civil service commissions had been appointed and, in the decade that had elapsed since the passage of the first law, the public attention had been directed to the development and results of this plan for elevating and improving the civil service. Civil service examinations had not gone unchallenged as to their efficacy and the antagonism had been pronounced. The proposed amendment of the Constitution was introduced as early as in the month of June, in the session of the constitutional convention of 1894. It wras taken up in the month of September and made the subject of prolonged debate. I think we may, safely and fairly, presume that the members of the convention had actually, and well, in mind, not only the public proceedings had in legislative and administrative bodies upon the subject, but,, as well, what the operation of the law had been reduced to in practice. It may not amount to a legal presumption of knowledge as to all the details of its working; but, in considering the duty resting upon a deliberative body, chosen to revise the Constitution of a state, I regard it as a proper and natural presumption to indulge in, that the working of the law in practice and the conditions brought about by rules and regulations, were the subject of study and of reflection.

The civil service article for cities provided that “ the mayor of each city in this state is * * * hereby directed to prescribe such regulations for the admission of persons into the civil service of said city, as may best promote the efficiency thereof, and ascertain the fitness of candidates in respect to character, knowledge and ability for the branch of the service into which they seek to enter, and for this purpose, he shall, from time to time, employ suitable persons to conduct such inquiries and make examinations,” etc. Such regulations, by the article, were to provide and declare, as in the case of admission to the civil service of the state, “ as nearly as the conditions of good administration will warrant,” for open and competitive examinations for testing the fitness of applicants; which should be practical in their character and fairly test the relative capacity and fitness of the persons examined, and that “ all of the offices, places and employments * * * shall be filled by selections from among those graded highest as the result of such competitive examination.” ' The mayor was required to arrange in classes the clerks and persons employed in the public service of the city, and “ he shall include in one or more of such classes, so far as practicable for the purposes of examination herein provided for, all subordinate clerks and officers in the public service of the said city,” etc. The further provisions of the article relate to the exemption from the regulations, prescribed pursuant to the section, of elective officers and the subordinates, for whose errors they were financially responsible; of heads of departments; persons in the educational departments, and every subordinate officer, who, by virtue of his office, had personal custody of public funds, for the safekeeping of which the head of the office was under official bonds. (Laws of 1883, chap. 354, sec. 8, as amended by Laws of 1884, chap. 410, sec. 2.) Under this article, regulations were variously promulgated; and, as we are concerned with those prescribed by the mayors of Brooklyn, we shall refer to them. They provided for three schedules, termed A, B, and D. Schedule A included places for which appointments might be made without examination. Schedule B included places to be filled upon a competitive examination. Schedule D included the cases of laborers and day workmen. It was, also, provided by the regulations that all new or omitted positions shall be deemed to be in Schedule B ; unless the assignment of such positions to some other schedule be made by the mayor, and this evidences that that schedule was to be regarded as containing the general rule in the making of appointments. Classification was made into schedules of the various clerks and persons employed in the city service and, thereafter, from time to time, were made assignments by the mayors of positions to the non-competitive schedule; so that, prior to January 1, 1895, when the revised Constitution went into effect, six of the positions filled by the appointees, defendants in this action, were assigned to that schedule and, after that date, five were so assigned. Whether any of these defendants might be considered, by virtue of his office, or his relations to the head of the department, to be exempted from the examination prescribed by law, is a matter to be discussed later. The methods and extent of examination are most amply exhibited in this record, and it very clearly is made to appear that the civil sendee commissioners have tested the qualifications of applicants in such practical ways, as would reveal what experience,, technical equipment, character and reputation they possessed.

It is the claim of the appellants, in effect, that the revised Constitution has not affected the provisions of the civil service statutes, nor has substantially changed the conditions, as to the classification of positions, the determination of the classes and the method of appointment, and that they remain, as before,, questions for the sole determination of the administrative officers of the state and city governments. There can be no doubt that, so far as the existing laws were consistent with the provisions of the Constitution, they Avere unaffected by them. Only such acts of the legislature as were repugnant to the Constitution were expressly abrogated. (Art. 1, sec. 16.) But the constitutional provision was so radical in its operation that, thenceforth, the rather plenary exercise of discretion, vested by the statute in the administrative officers of government, was taken away. There was no longer to be that latitude of discretion, which was afforded by such provisions, as that the regulations should be such “ as may best promote the efficiency thereof,” or “ as nearly as the conditions of good administration will warrant.” The constitutional convention and the people, who adopted their work of revision, had in mind a more stringent principle in appointing persons to perform duties affecting the public interests. Thenceforth, appointments should be upon the basis of a fitness for office; to be solely tested, when it was practicable to do so, by examinations, which should be competitive in their nature, if that, too, was practicable. It Avas not proposed that the benefits, which they believed would result from the strict application of such a principle, should be lost, or diminished, by the exercise of a merely formal judgment, or of an arbitrary legislative discretion.

~YVe have recently had occasion to consider the effect of this constitutional provision, in depriving the legislature of any purely arbitrary power of determination as to what places it was practicable to fill by appointment without competition. The Keymer Case, (148 N. Y. 219), arose under chapter 344 of the Laws of 1895, which amended the Civil Service Act so as to create an exemption in favor of the veterans therein described from competitive examinations. The language used was that “ competitive examinations shall not be deemed practicable or necessary ” in such a case. We held the act to be unconstitutional; because it referred only to veterans of the civil Avar and created a favored class, and because it arbitrarily declared as to them competitive examinations should not be deemed practicable, in cases where the compensation does not. exceed four dollars per day. Judge Bartlett, delivering the opinion of this court, observed, that “ while it is true that the Constitution contemplates that it may not always be practicable to ascertain merit and fitness by examinations, or to have these examinations competitive, yet a mere arbitrary declaration in an act of the legislature that competitive examinations of veterans are impracticable in cases where the compensation does not exceed four dollars- per day, is in plain violation of the provisions of the Constitution making competitive examinations necessary.”

The use of the word “ practicable ” in the section has been seized upon as the basis for an argument, by implication, that it was recognized that it might not always be possible to test merits and fitness, in every instance, by an examination, competitive or non-competitive, and, as existing laws were left in force, so far as not repugnant to the Constitution, that all questions of classification, and of matters of appointment thereunder, are left to the determination of the mayors, as provided for by the acts of the legislative body, in whom such a power of legislation resided. The significance of the terminology of this section is not open to so broad an implication. All exceptions to the rule of examinations wrere abrogated by the section, which formerly existed by statute, or which became engrafted upon the law by regulations. There were to be no more exemptions from examinations in any case; unless it was one, where, from its peculiar nature, it could be seen that an examination would not be practicable for the purpose. It is not difficult to understand what was intended; however difficult it might be to furnish a definition which would include the cases where examinations would not be practicable. Such cases might be found in the selection of a private secretary, where the statute gave the power to appoint such; or in the selection of an attendant or clerk by a judicial, or executive, officer, where there was a similar power to make the appointment. In such and like cases, the requirements for the place might consist-, rather in the capacity of the person to inspire and to deserve personal confidence and a pérsonal liking, than in the possession of experience, or knowledge, or a technical equipment. Such might well be the case, where the executive officer is charged with such responsibility, in the performance of the duties of his office, as to require him to rest upon the vigilance, integrity and personal faithfulness of a clerk; qualities which examinations might insufficiently display, if at all. So, with respect to competitive examinations, cases can be conceived of where they might not be practicable; whether simply from the absence of any competitors, or, more pertinently, where the nature of the work to be performed by the applicant is such that an examination in competition with others would not aid in determining his fitness for the particular position to