be appointed to each of the positions filled by the several defendants.

Second. That the action of the mayor of Brooklyn in placing such positions in the non-competitive class and requiring them to be filled therefrom without competitive examination is illegal, and as such is subject to review by this court.

Third. That this is the proper form of action in which to review the action of the mayor.

It would be a most interesting task to review the history of the struggle to establish the Civil Service merit system in this State from its timid beginning until 1895, when it found lodg ment in the State Constitution, but I consider it my sole duty, while holding Special Term, to plainly decide each material question of law and fact presented by the pleadings and proof.

MARTIN J. KEOGH,

J. S. C.

SIMEON B. CHITTENDEN AND OTHERS, Respondents, v. FREDERICK W. WURSTER, AS MAYOR OF THE CITY OF BROOKLYN, AND OTHERS, Appellants.

Appellate Division, Second Department, February Term, 1897.

(14 App. Div. 483.)

they were en

CIVIL SERVICE LEGISLATION - the constitutional provisions are self-executing acted in contemplation of existing statutes—all appointments must be made by competitive examination, as far as practicable- the Governor and the mayors of cities are not the final arbiters of the question review by the court-practicability of competitive examitions is a question of law-presumption that and administrative officer has done his duty — positions may be filled by competitive examinations- confidential positions.

The provisions of section 9 of article 5 of the Constitution of 1894, relative to the Civil Service, are self-executing and are not dependent upon the action or non-action of the legislative body.

The Constitution of 1894 was enacted in contemplation of the then existing Civil Service statutes, but those statutes are not conclusive as to the method in which appointments or promotions in the Civil Service are to be made; and, in so far as the classification of appoint ments to office under them was discretionary, the provisions of the Constitution have superseded the statutes and require that all appointments in the civil service shall be made by competitive examination "so far as practicable "

The fact that those statutes imposed upon the Governor and the mayors of cities the assignment of appointees to various classes did not constitute those officers the final arbiters of the question, whether or not in any particular case an examination or competitive examination was practicable.

The Legislature could impose the duty of classification upon other officers; and, although the duty is undoubtedly an administrative on, if the action of the administrative officer conflicts with the Constitution, the courts, when the question is brought before them, must hold his action void. To this extent only can the courts review the administrative action of such an officer.

When the particular character and functions of an office or position are ascertained, the ques. tion whether competitive examination or appointment for that place is practicable or not is one to be determined by the court as a matter of law, in the light not only of the proof, but of common knowledge as applied to the subject-matter.

It will be presumed that an administrative officer, in determining the question whether an examination of a candidate for office is practicable, has done his duty, subject to the rule that under the Constitution competitive examination is the rule and exemption therefrom the exception.

It is practicable to fill, by competitive examination, such positions as a clerk to committees in the board of aldermen, a dock- master in the department of finance, a chief clerk in the department of andit, a law clerk in the department of law, a surveyor in the department of assessment, a finance clerk in the department of health, a license fee collector in the fire department, a secretary in the department of buildings, a stamp clerk in the water bureau department of city works, and a license clerk or deputy license clerk in the city clerk's office.

It is possible that a warrant clerk to the comptroller, whose duty it is to present warrants to the comptroller for signature, may be deemed a confidential clerk, and, therefore, exempt from competitive examination; but assuming this to be so, the comptroller cannot, by appointing a large number of warrant clerks, divide a duty which is confidential and in this manner obtain exemption for all and evade compliance with the State Constitution and the Civil Service statute.

Semble, that there may be confidential positions of such a nature that the incumbent would not be exempt from a Civil Service examination.

Appeal by the defendants, Frederick W. Wurster, as mayor of the city of Brooklyn, and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 4th day of January, 1897, upon the decision of the court rendered after a trial at the Kings county special term, enjoining and restraining the payment of salaries to certain of the defendants.

Joseph A. Burr, for the appellants, Frederick W. Wurster, as mayor and others.

Albert G. McDonald, for the appellant, Perry.

George Tiffany, for the appellant, Fackner.

Jesse Johnson, for the appellant, Hurley.

John M. Ward, for the appellants, Foulks and others.

Jacob Brenner, for the appellant, Wells.

Edward H. Hobbs, for the appellant, Everitt.
James W. Glendinning, for the appellant, Cox.

Edward M. Shepard, for the respondents.

Goodrich, P. J.: The plaintiffs, taxpayers of the city of Brooklyn, bring this action against the mayor, comptroller, city auditor, city clerk, city treasurer and eleven persons in the municipal service of the city of Brooklyn to restrain the payment of salaries to such persons, on the ground that they were appointed to office. since January 1, 1895, without examination, competitive or otherwise, although such examinations were practicable, and that such appointment was within the inhibition of section 9, article V of the Constitution of 1894.

The section in question 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."

The Constitution is the basic and fundamental law. To this ultimate and supreme mandate of the people, uttered by its delegates in convention assembled, it is the duty of all departments of the State government, executive, legislative and judicial, to bow in instant and willing obedience. It is our duty to interpret and apply it reasonably but firmly to the questions involved in this appeal.

In the case of The People ex rel. Jackson v. Potter (47 N. Y. 375, 380), it was said that a Constitution is to be held as prepared and adopted with reference to existing statutory laws upon the provisions of which, in detail, it must depend to be set in practical operation. This opinion is also emphasized by section 16, article I of the Constitution: "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 alteration as the Legislature shall

make concerning the same. But

*

*

such of the said acts or

parts thereof as are repugnant to this Constitution are hereby abrogated."

The principle of Civil Service examinations was new to the Constitution, though not new to the statutory laws of the State. In 1883 the Legislature passed the act commonly called the Civil Service Act (Laws of 1883, chap. 354, amended in 1884 [chaps. 357 and 410]), and these acts established the Civil Service Commission, and provided for appointments to the public service after examination of applicants, and for the means of such examination.

It was made the duty of the Civil Service Commissioners to aid the Governor in preparing suitable rules for carrying the act into effect, which rules should provide "as nearly as the conditions of good administration will warrant," among other things, first, for open competitive examinations for testing the fitness of applicants for the public service, such examinations to be practical in their character; second, that all offices should be filled by selections from among those graded highest at such examinations; third, for a period of probation before absolute appointment; and, fourth, for non-competitive examination, when competition might not be found practical.

Section 6 made it the duty of the Governor to cause to be arranged in classes the several clerks and persons employed in the public service, for examination, and to include in such classes, "so far as practicable," all subordinate places in the public service of the State.

Section 7 provided that no person should be admitted to, or promoted in, either of the classes till he had passed an examination or was shown to be exempt from such examination.

The appointing power was required to report all appointments to the Civil Service Commission, which was required to certify such appointments to the Comptroller; and the latter was forbidden to pay the compensation of any officer in either of said classes until so certified.

Section 8 directed mayors of cities to prescribe such regulations for the admission of persons into the Civil Service of

such city as should "best promote the efficiency thereof," and to employ suitable persons to make such examinations, and to prescribe their duties and establish regulations for the conduct of persons who should be appointed in the service; to cause to be arranged in classes the persons employed, and to include in one or more of such classes, "so far as practicable," all subordinate clerks and officers in the public service of the city. No person was to be admitted to either class until he had passed the examination, or was shown to be exempted therefrom.

Thus it will be seen that at the time of the adoption of the Constitution there was in force a regular system of Civil Service machinery adequate to the examination and appointment of persons to the public service in the State and in the cities, and the Legislature has not deemed it necessary to provide further laws for the enforcement of the Civil Service article of the Constitution.

In the case of The People v. Draper (15 N. Y. 543), Denio, Ch. J., said: "The people in framing the Constitution committed to the Legislature the whole law-making power of the State, which they did not expressly or impliedly withhold. Plenary power in the Legislature for all purposes of civil government is the rule. A prohibition to exercise a particular power is an exception." (See, also, Rathbone v. Wirth, 150 N. Y. 470.)

It must be assumed that the Constitutional Convention had this law and these facts in mind in adopting the civil service article, and such has been the decision of the courts upon this subject. In the oft-approved opinion of Mr. Justice Herrick in The People ex rel. McClelland v. Roberts (91 Hun, 117), it was stated: “The members of the Constitutional Convention being assumed to have known the nature and effect of the then existing laws, and having provided for their continuance, where in harmony with the new Constitution, we must also assume that they depended upon them, supplemented by such new legislation as should be necessary to carry into effect the details of the Constitution." This gives force to the clause of section 9, "Laws shall be made to provide for the enforcement of this section."