REPORT OF COMMISSIONER BROWN TO THE COMMISSION ON THE CONSTITUTIONALITY OF THE PROVISIONS OF SECTION 10 OF THE CIVIL SERVICE LAW RELATIVE TO REMOVAL AND APPOINTMENT OF MUNICIPAL CIVIL SERVICE COMMISSIONERS BY THE STATE COMMISSION.

This act is not in violation of Article X, section 2, of the Constitution, which provides: "All city, town and village officers, whose election or appointment is not provided for by this Constitution, shall be elected by the electors of such cities, towns and villages, or some division thereof, or appointed by such authorities thereof as the Legislature shall designate for that purpose. All other officers, whose election or appointment is not provided for by this Constitution, and all officers whose offices may hereafter be created by law, shall be elected by the people, or appointed, as the Legislature may direct."

I. THE STATE CIVIL SERVICE LAW ESTABLISHES AN ENTIRELY NEW SYSTEM OF GENERAL APPLICATION, AND THE OFFICERS FOR ITS ADMINISTRATION ARE THE OCCUPANTS OF "NEW OFFICES," WHICH, ACCORDING TO ARTICLE X, SECTION 2, OF THE CONSTITUTION, ARE TO BE FILLED "AS THE LEGISLATURE MAY DIRECT."

This constitutional provision was a part of the Constitution of 1846, continued without change in the Constitution of 1894. The Civil Service system was then utterly unknown, and it was not until 1883 that the first Civil Service Law was passed. Therefore, all offices created by that act and subsequent Civil Service Laws are "new offices" in the meaning of the Constitution, according to the rule distinctly laid down by the Court of Appeals in Allison rs. Welde (172 N. Y., 421-432), in these words:

"The Constitution of 1846 having been continued by the Constitution of 1894 in hæc verba, so far as these provisions are concerned, it is deemed to be a continuation of the provision from the time of its first enactment in 1846, and the offices that were new thereunder still continue to be new offices, which may be filled 'as the Legislature may direct.""

This opinion, written by Judge Haight and supported by lengthy citations from authorities on constitutional law, was distinctly concurred in as to this point by Judges Bartlett and Vann, and

generally concurred in by Judge Werner, with the reservation that he had no opinion on that particular point.

Query: Are there now existing in any city, village or county of the state local offices, such as water boards, street widening commissions, etc., not chosen by local authority on the ground that they were "new offices" under the Constitution of 1846, which have continued to be filled in the old way since January 1, 1895? If this is allowed the view of Judge Haight must be correct.

Previously, the Court of Appeals, in the matter of Brenner (170 N. Y. 185-190), had held that it was not competent for the Legislature to provide for the appointment of county officers existing prior to January 1, 1895, otherwise than through some county authority.

Even if this view should prevail rather than the later one, Municipal Civil Service Commissioners would still have to be considered" new offices" whose removal and appointment was entirely within the legislative discretion.

The Constitution of 1894 set up the Civil Service system on an entirely new scheme with entirely new sanctions. Before, the merit system was statutory and the rules for a city were prescribed by the mayor. Such so-called Civil Service officers as existed in cities were not public officers but merely assistants and agents of the mayor, without independent authority of their own. The original Civil Service Act of 1883, as amended in 1884 and in force when the Constitution of 1894 went into effect, provided:

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"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 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."

In section 3 of the act of 1884, continuing the regulations and machinery established under the act of 1883, the only mention of these "suitable persons" is as "examiners," as follows:

"The examiners who, before the passage of this act, have by the mayor of any such city been appointed or designated under the

provisions of this act, shall be deemed to be appointed, and to have all the powers and duties which they would have if appointed under the provision of the said act as hereby amended."

The whole theory of Civil Service administration was changed by the Constitution of 1894 and the laws subsequently enacted to carry it into effect. Chapter 186 of the Laws of 1898 provided: "The mayor of each city in this State shall appoint and employ suitable persons to prescribe, amend and enforce regulations for appointments to and promotions in the Civil Service of such city

*. Such regulations herein prescribed and established, and all regulations now existing for appointment and promotion in the Civil Service of said city, and any subsequent modification thereof, shall take effect only upon the approval of the mayor of the city and of the New York Civil Service Commission."

Here is a complete break from the old system. Former rules are set aside and the slate wiped clean for new rules to be established with the approval of the State Commission. Whereas before the mayor was everything, now the local examiners (they are not yet called commissioners in the law) have an independent initiative and authority to enforce as well as prescribe, and the mayor's authority is converted into a veto power. The law of 1899 (chapter 370, section 10) established the office of Municipal Civil Service Commissioner, which had never before existed. provides:

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"The mayor of each city in this State shall appoint and employ suitable persons to prescribe, amend and enforce rules, etc., Such persons shall be Municipal Civil Service Commissioners and shall constitute the Municipal Civil Service Commission of such city."

Section 19 of the same act provides :

"It shall be unlawful for the comptroller or other fiscal officer of the State or any city or civil division thereof, for which Civil Service rules have been prescribed by this act, to draw, sign or issue, or authorize the drawing, signing or issuing of any warrant on the treasurer or other disbursing officer of the State or such city or civil division thereof, for the payment of, or for the treasurer or other disbursing officer of the State or of such city or civil division thereof, to pay any salary or compensation to any officer, clerk or other person in the classified service of the State or of

such city or civil division thereof, unless an estimate, pay roll or account for such salary or compensation, containing the names of the persons to be paid, shall bear the certificate of the State Civil Service Commission, or in case of the service of a city, the certificate of the Municipal Civil Service Commission of such city, that the persons named in such estimate, pay roll or account have been appointed or employed or promoted in pursuance of law and of the rules made in pursuance of law."

Thus the acts of 1898 and 1899 created an office not merely new in name, but new in function. No officer with the powers and duties of a Municipal Civil Service Commissioner ever existed in this State before, except in New York city under a special provision of the charter of 1897, and then, too, it was a “new office," having been created after the Constitution of 1894 became effective. An entirely new organ of government was created to carry into effect in the cities of the State the mandate of the Constitution by the exercise of authority, over pay rolls and in the character of a board with independent administrative powers. Until 1899 no officer had power to stop payments in cities in violation of the Civil Service Law, not even the mayor, who, up to that time, was held responsible for the administration of the State Law with respect to the city service, while the Civil Service Commissioners, popularly so called, were not commissioners, or even public officers, but merely "suitable persons" to aid him as he might request in the discharge of his duties. Here was a new work, never done by anybody before 1895, and in decreeing that the work should be done, in order to enforce the rule of merit newly established by the Constitution, it was competent for the Legislature to entrust that work to persons appointed as it saw fit. Its discretion was not limited by Article X, section 2, of the Constitution, for it was doing pioneer work of statecraft, much more so than in establishing a board of village water commissioners, held to be constitutional in Hequembourg vs. the City of Dunkirk (49 Hun 550), or a board of examiners to a fire department upheld in the case of the Fire Department vs. Atlas S. S. Co. (106 N. Y. 566-578), or a special commission for widening a village street. (People ex rel. Kilmer vs. McDonald, 69 N. Y. 362; Hanlon vs. Supervisors, 57 Barb., 385-397.)

Not only are the Municipal Civil Service Commissioners new officers in name and function, but, as created subsequent to January 1, 1895, they are actually the first Civil Service officers ever existing in the cities of the State. Under the earlier Civil Service statutes, in force until after 1895, permitting mayors from time to time to "employ suitable persons" to conduct inquiries and make examinations, the Attorney-General gave it as his opinion that neither this designation nor the statutory provision made such persons city officers, and therefore the mayor of a city could properly appoint as Civil Service examiners for that city members of the Police Board and Excise Commissioners. (Opinion of Theodore E. Hancock, Attorney-General, May 10, 1895.-N. Y. Civil Service Commission's report for 1894, page 114.)

II. THE CIVIL SERVICE LAW ESTABLISHES A STATE ADMINISTRATIVE SYSTEM WHICH MAY BE ENFORCED EVERYWHERE AS THE LEGISLATURE MAY DIRECT.

It would have been perfectly competent for the Legislature to confer the power of making rules, conducting examinations and certifying pay rolls for every branch of the public service of the State, including all its local divisions, upon the State Civil Service Commission directly. It has done this with reference to the service in the counties, though the Constitution confers upon the counties the same right of local election which it does upon cities towns and villages. All are entitled to the same measure of local self-government according to Article X, section 2 which provides:

All county officers, whose election or appointment is not provided for by this Constitution, shall be elected by the electors of the respective counties or appointed by the Board of Supervisors or other county authorities as the Legislature shall direct. All city, town and village officers, whose election or appointment is not provided for by this Constitution, shall be elected by the electors of such cities, towns and villages, or of some division or appointed by such authorities thereof as the Legislature shall designate for that purpose."

thereof,

Judge O'Brien, in his dissenting opinion, in Chittenden vs. Wurster (162 N. Y. 345-396), has said that it is not necessary in order to put the mandate of the Constitution into immediate operation to wait until a village or county Civil Service Board is organized by the Legislature: