"All the Constitution requires is that there shall be an honest, open, competitive examination, and the State can furnish that, even to candidates in the particular county, better than any local authority." The Legislature has full power to secure competition, with or without local agency, as it sees fit, in counties and villages, and it must have the same power in cities. The Legislature in its wisdom saw fit to commit the execution of the law with respect to the county service directly to the State Civil Service Commission, but to create special boards to enforce it with respect to city services. If it had the right to deal thus with the counties, it had the right to do the same with the cities. Having the power to create city boards or confer their functions on the State Commission, it had power when creating them to provide for their appointment as it pleased, and to abolish them or suspend the administration of this State system under their control at its discretion, for, as Judge Selden has said in People vs. Batchelor (22 N. Y. 128-137) : "No one, I think, can doubt the power of the Legislature to withdraw entirely or postpone the exercise of an authority conferred by itself alone upon the mayor and aldermen." It is not necessary that the appointment should continue with the mayor because the power has once been conferred upon him, for, according to People ex rel. Taylor vs. Dunlap (66 N. Y. 162-168): "The Legislature, by acting, lost none of its authority over the subject. It could thereafter abolish the office, change its character from a county to a city office and provide for a different mode of appointment. The whole subject was within the. control of the Legislature. What the Legislature could have done originally, it could do by a subsequent enactment." The Civil Service system was established not merely, or even mainly, to regulate the actual performance of the work of government, state or local, but to check a tendency demoralizing to the community and dangerous to political liberty. Before its introduction the duties of administration were reasonably well performed. Public officers selected subordinates who in general did their work faithfully. The fact cannot be ignored that now some officials of intelligence and honesty, who have no desire to distrib ute patronage, think that they could conduct their departments more efficiently if entirely free to select their own subordinates. The Civil Service system, though doubtless intended to improve the service, was primarily adopted by the people to prevent public office from being used as a weapon of political warfare. How efficiently in any city a particular office is administered does not much concern the people of the State at large. But the use of that office as spoils to build up or tear down a political party by rewards and punishments for political activity does greatly concern them. It interferes with their freedom of elections and perverts their government agents from their proper functions as the servants to be the masters of the people's will. The machinery established to prevent this abuse is a State machinery. Through it the State does not undertake to say how any true municipal function shall be performed. The city officials are as free as ever to adopt and execute their own measures of local government. They are merely forbidden to make that government a political weapon. The rules made for the Civil Service in the cities are subject to the State Civil Service Commission, and that subjection is constitutional. (Rogers vs. Common Council of Buffalo, 123 N. Y. 173.) If the administration of the law in cities is itself not a local function, but thus absolutely subject to State control, the officers of administration are not local officers in the meaning of Article X, section 2, of the Constitution. The decision in People ex rel. Balcom vs. Mosher (163 N. Y. 32-42), that the Civil Service article of the Constitution must be construed so as to give full force to Article X, section 2, is not in conflict with this view of the Civil Service Law. It was held that the Civil Service provision could not deprive local authorities of their constitutional power by prescribing to them their appointments and compelling them to take the highest person on an elig ible list. That finding was partly based on the fact that the Civil Service Commissions were, or might be, an external authority, and the constitutionality of the part of the statute now in question was assumed as a reason for holding the other part unconstitutional and securing to local officers some choice among the candidates proposed to them by a Civil Service Commission. Thus Judge Martin said: "Moreover, by section 10, of the act of 1899, if the Mayor for any reason fails to apppoint Municipal Civil Service Commission ers, 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 offi cers." The machinery for the enforcement of the Civil Service Law in cities is as properly a State system, notwithstanding its operation in cities and over city officials, as are the state excise department, the franchise tax machinery or the educational department. The members of the New York City Board of Education, though appointed by the Mayor with functions exclusively local, are not city officers. In Ham vs. Mayor (70 N. Y. 459-463) it is held: "Whether it was a corporate body is not material, for though formally constituted a department of the municipal government the duties which it was required to discharge were not local or corporate, but related and belonged to an important branch of the administrative department of the State government." Also in Ridenour vs. Board of Education of Brooklyn (15 Misc. 418) it is held that the board is: "A local-school corporation like every board of school district trustees, and is, like every such board, an integral part of the general school system of the State. It is a State and not a city agency, doing State and not city work and functions." III. THE POWER TO REMOVE MUNICIPAL SERVICE COMMISSION- CONSTITUTIONALLY Whether the Municipal Civil Service Commissioners be consid ered new or old officers with reference either to the provisions of the Constitution as continuing from 1846 or enacted anew in 1894; whether they be considered local officers or State officers, the Legislature has power to provide, in its discretion, for their removal for misconduct and the filling of vacancies. The power conferred upon the State Civil Service Commission is not an arbi trary power, but a necessary provision to prevent nullification of the State law by any body of men directed to enforce it. Judge Cullen, in the case of the People ex rel. Devery vs. Coler (173 N. Y. 103-116), while expressing the opinion that the power arbitrarily to remove a police commissioner could not be conferred on the Governor, laid down this rule: “The question before us is very different from that which would be presented by a provision that the Governor might remove for misconduct in office after a notice and a hearing. The Constitution, by section 8, Article X, provides that the Legislature may declare the cases in which any office shall be deemed vacant when no provision is made for that purpose in this Constitution.' I am not prepared to assert that a statute authorizing the Governor to remove a local officer for misconduct on charges, and after a hearing, could not be justified under the section of the Constitution quoted." The removal authorized by the Civil Service Law is just such a removal for misconduct on charges after a hearing. Its judicial character is safeguarded by the requirement of a unanimous vote of the State Civil Service Commissioners, not more than two of whom can belong to the same political party, and the approval of their act by the Governor. If the Municipal Civil Service Commissioners are admitted to be new officers in the meaning of the Constitution, or, like local school officers, a part of a State system, the authority of the Legislature to confer on the State Commission the right to fill vacancies as well as to make removals is beyond dispute. If the removal be considered possible only as the exercise of the State's disciplinary power discussed by Judge Cullen (ante), the right of the State Commission to fill a vacancy is not so clear. Nevertheless, it may fairly be considered as one part of a single proceed. ing, a necessary complement of the power to remove if the remedy contemplated is to have its due effect. The purpose of the law is to prevent local nullification of the Constitutional system. It was a patent fact, within the knowledge of the Legislature, that whole city administrations had been indifferent or actually hostile to the operation of the merit system within their precincts. If a mayor, with absolute power of removal, permitted misfeasance on the part of commissioners, there would be every reason to expect a continuance of misfeasance if he appointed their successors. If overruled and rebuked a mayor might naturally be impelled to defend and perpetuate the abuses for which he stood responsible. The Legislature sought to safeguard the merit system from this danger, and it properly took whatever measures actual conditions called for. The Constitution laid upon it the duty to secure everywhere appointments according to merit and fitness, and it was the judge of the measures and safety devices necessary to that end. The Governor, in case of removal of a sheriff or county clerk, appoints a successor to hold until the next election, though these officers in general must be locally chosen. His authority is based on an act of the Legislature under Article X, section 5, of the Constitution. Citations of cases under this section say that it relates only to offices which are certain and fixed as elective offices, but do the cases themselves bear out that interpretation? Does not the decision in People ex rel. Hatfield vs. Comstock (78 N. Y. 356) merely mean that the second clause of the section concerning the termination of an appointment to fill a vacancy relates only to certain and fixed elective offices? Is not the first clause: "The Legislature shall provide for filling vacancies in office" general? Where, otherwise, does the Legislature secure its power to pass laws for filling vacancies in appointive offices? ROSCOE C. E. BROWN, March 20, 1905. Commissioner. |