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ness name as indicating that its modes of manu- serving health by Emerson in his “ Essay on facture of products are in accordance with Nominalist and Realist" (Emerson's Essays, ad hygienic methods. The court said in part:

ser., p. 226). Dr. Richardson uses it with a simThe trial court has enjoined the defendant | ilar meaning in an address to the Social Science against dealing in distilled water and its various Association on the arrangement of a city so as to products under any corporate or business name reduce the rate of mortality: “ Hygeia, or the City which contains the word “hygeia.” There is here i Health” (Chambers' Journal, January 20, 1877). no question as to the use of a corporate iame in And in the Oxford English Dictionary it is defined this business, which, by reason of similarity, un- a system of sanitation or medical practice.” lawfully infringes the plaintiff's interest in its own During the present century, and especially during corporate name, nor of a dishonest and fraudulent the past forty years, the word has been freely used use of the name by the defendant to the injury of with an adjective meaning (as appears from the the plaintiff. These questions are settled in favor finding), as expressing the medically healthful oi the defendant by the final judgment on the first property or effects of places, food, clothing, etc. and third counts. The sole question, as affecting This meaning of a means or method of preserving the point under discussion, is this: Has the de- health it has always had in medical literature, and fendant a right to use the word “ Hygeia " in its for a long period in general literature, although corporate or business name as indicative of its the transfer from medical to general literature has mode of manufacture, notwithstanding some inci- not been recognized by many of the standard dicdental injury results to the plaintiff's business irom tionaries. The recognition of such changes often that use? It is found as a fact that the defendant follow slowly. But the authority of the Oxford manufactures artificial ice from filtered and dis-English Dictionary is of the highest, and it estabtilled water by a peculiar process calculated to lishes, not a new use, but the recognition of a longproduce an absolutely pure ice, and for that reason, cciitinued use. We cannot doubt that “Hygeia,” in good faith, and in ignorance of the plaintiff's whether used as a substantive, to express a process existence, it used the word " Hygeia” to associate or means of preserving health, or, with an adjecits meaning with the ice produced by this special tive sense, to describe an object as resulting from process, involving filtration and distillation; and the operation of hygein method, is an English that since its incorporation, in pursuance of a de- word, to the use of which, with that meaning, sign entertained at that time, it has dealt in the every one is entitled. It is suggested that such water so distilled and filtered, in its liquid as well meaning of the word arose from the sale of the as in its frozen form, and in various products of plaintiff's products. This is palpably, and even that water. If this is a correct use of the word absurdly, untrue. The rapid increase in the use of the defendant's right to use it in this manner can- hygeia and its derivatives commenced long before not be destroyed by the plaintiff's adoption of its the plaintiff's business enterprise was conceived, trade-mark. We must, therefore, examine the real and is due to the force of a widespread social significance of the word more carefully than movement, which has made professional investigaseemned necessary at the former hearing. The tion of the laws of health a common study, which Greek word “hygeia ” means “health." When demands the application of the rules of hygeia to the daughter of Æsculapius was deified as the the preparation of everything we eat, drink or goddess of health she was named “ Hygeia." The wear, to the construction and maintenance of our Latin word salus” means “health," and this houses, factories and public buildings, and to the name also was given to the Roman goddess of arrangement and care of our cities. So strong and health. Both words passed into the English lan-widespread has this movement been, that, to exguage. The name of the divinity was confined to bress its exaggerated operation, we have found it the Greek form. The derivatives of “salus" came necessary to coin and adopt into the language the into common use. The Greek word for health was word “hygeiolatry.” Hygeia is a word of peculiar at first appropriated mainly, if not wholly, to medi- value. By reason of its passage into general litercol literature; but within the past century it has ature from the medical it has a significance which passed, with many derivatives, into common use.

the derivatives of “salus” failed to express. The We find its definition when used as noun in idea conveyed by “salubrity” and “salubrious” medical literature in the title of a book published is quite distinct from that conveyed by “hygeia " in 1682: " Hygeia, Id Est Bonæ Valetudinis Con- and “hygienic.” It is this meaning of the word scrvandæ Thesaurus Lucupletissimus." It is used ds expressive of the modern care for health by with a similar meaning in many medical books scientific methods that has brought it into comand journals, French and German, as

mon use, and makes it most valuable. The defendEnglish (although its primary meaning seems al- ant, therefore, has a right to use the word ways to have been health). (See Foster, Enc. “ Hygeia” in its corporate and in its business Dict.) It is used in this sense in 1802 in Beddoe's rame as signifying the claim that its products of “ Hygeia, or Essays Moral and Medical.” In 1841 water, whether congealed or liquid, are prepared it is used as meaning the means or system of pre-! in accordance with the rules of hygeia; and any

well as

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injury the plaintiff may suffer in its business from The act, chapter 370 of the Laws of 1899, providsuch honest use is the necessary result of its ing that appointments in the competitive class choosing as a trade-mark a word which not only of the civil service shall be made from those was a symbol which it might appropriate, but graded highest, is unconstitutional, being viowhich was also a valuable word in language, which lative of section 2 of article 10 of the State the law does not permit to be monopolized. So Constitution, which provides that city, town far as attaching the mark “ Hygeia” to the defend- and village officers shall be appointed by the ant's goods is, in fact, a practical representation authorities thereof designated by the legislathat such goods are made by the plaintiff, the ture. plaintiff is entitled to protection; but that protec- | The right of appointment which the Constitution tion cannot be extended to preventing the defend- vests in the local authorities involves the arit irom using in good faith, with its natural power of selection and the exercise by them signification, the English word “hygeia” in its of discretion and judgment, whereas the statcorporate name or business as descriptive of its

ute in question assumes to confine them to the method of manufacture. Any injury which results performance of the ministerial act of authentito the plaintiff from such use is not in violation of cating a name certified to them by the local the plaintiff's rights, and is not due to a wrongful civil service commissioners, or, under some act by the defendant, but solely to the difficulties circumstances, by the State civil service comthe plaintiff assumed in its selection of such a missioners. mark

The validity of a statute must be determined by There ought not to be a new trial. The errone- the nature, character and scope of the powers ous portions of the judgment are distinct from

attempted to be conferred, although they may and independent of the other portion, and may

not have been actually exercised. be reversed, without disturbing it (Sherwood v. Sherwood, 32 Conn. 1, 15; Taff v. State, 39 Conn. in the Third Department, reversing an order of

Appeal from an order of the Appellate Division 83, 85: Middlebrook v. State, 43 Conn. 257, 270). the Special Term granting a peremptory writ of That portion of the judgment which enjoins the

mandamus, commanding the defendants to appoint defendant against using, in connection with the

the relator to the position of superintendent of business of selling or delivering distilled water in

streets and city property of the city of Binghamliquid form or for drinking use, or in connection

ion for a probationary term of two months. The with the business of making, manufacturing, com

charter of that city provides that the mayor shall pounding, putting up, bottling, selling, offering for sale. or delivering ginger ale, soda water. lithia appoint four commissioners, who shall constitute

a board to be known as the board of street comwater, or other artificial mineral waters in the

missioners of the city of Binghamton; that it shall fireparation of which products distilled water shall

have the management and control of the street have been used an ingredient, the mark “ Hygeia." either alone or in combination with department, and its powers and duties are defined. the name of the product (as “Hygeia Water." February of every alternate year the board shall

It then declares that on the second Tuesday in “Hygeia Distilled Water "). in and upon its signs. appoint a superintendent of streets and city dropadvertisements, letter-heads. billheads. circulars

erty for the term of two years who shall receive printed matter, wagons, bottles, jugs, siphons.

an annual salary, of $1,000, and defines the duties labels, corks, seals, wooden boxes and cases, pack-of the superintendent, which are important and ages, receptacles, or any other thing used by it in

are of great interest to the welfare and proper srch business, is affirmed, the residue of said

management of the streets and property of the judgment is reversed and set aside.

city. He is also required to give a bond, to be

approved by the mayor, for the faithful discharge CIVIL SERVICE.

of his duties (secs. 1, 2, 3, 4, 5).

The position of superintendent became vacant PROVISION THAT APPOINTMENTS Sali Be MADE February 1, 1899, by the expiration of the term of

FROM PERSONS Graded Highest. Held the previous incumbent. In the following April UNCONSTITUTIONAL.

The municipal civil service commission certified to

the board of street commissioners the names of COURT OF APPEALS.

three persons appearing upon the eligible list pre

pared by the commission as the result of a comDecided May 1, 1900.

petitive examination therefor. Upon the list were THE PEOPLE OF THE STATE OF NEW YORK ex rel.

the names of Bolles, Balcom and Seabury. Bolles George N. Balcom, Appellant. v. WILLIAM stood highest, Balcom next and Seabury last. H. MOSHER, LEWIS BAIRD, EDWARD E.

Balcom and Seabury were both honorably disPowell and William E. CARPENTER, consti-charged soldiers of the army during the late Civil tuting the Board of Street Commissioners of War, and as such were entitled to preference over the City of Binghamton, Respondents.





Rule 14 of the local civil service commission, whose election or appointment is not provided for which was approved by the mayor and by the by this Constitution, shall be elected by the elecState civil service commission in 1898, provided tors of such cities,

or of some division that when any officer having the power of appoint- thereof, or appointed by such authorities thereof, ment to or employment in any position in schedule as the legislature shall designate for that purB (the competitive class) so requests, the com- pose;" while section 9 declares: Appointments mission shall certify to him the names as soon as and promotions in the civil service of the State, practicable of three persons having the highest and of all the civil divisions thereof, including standing upon the eligible list, and the appointing cities and villages, shall be made according to officer shall thereupon appoint to the vacant posi- merit and fitness to be ascertained, so far as praction one of the three persons so certified to him, ticable, by examination, which, so far as practisubject to any and all laws of the State of New cable, shall be competitive; provided, however, York in relation to honorably discharged soldiers that honorably discharged soldiers and sailors 01 marines of the Civil War, giving them prefer- from the army and navy of the United States in ence under the civil service rules.

the late Civil War, who are citizens and residents On April 19, 1899, the legislature passed an act of this State, shall be entitled to preference in in relation to the civil service of the State which appointment and promotion, without regard to took effect immediately (L. 1899, chap. 370). By their standing on any list from which such apsection 13 it is provided: “ Appointments shall be pointment or promotion may be made." made to or employment shall be given in all posi

In interpreting the Constitution it is to be contions in the competitive class that are not filled sidered as a whole, complete in itself; force is to by promotion, reinstatement, transfer or reduction be given to every provision contained in it, and under the provisions of this act and the rules in each clause explained and qualified by every other. pursuance thereof, by appointment of those graded the words used must be presumed to have been highest in open competitive examination

con-employed in their natural and ordinary meaning, ducted by the State or municipal commission, ex

and if different portions seem to be in conflict they cept as herein otherwise provided.”

must be harmonized if possible, and that construcThe State civil service rule relating to this sub

tion adopted which will render every provision ject is in effect a repetition of the statute itself

operative rather than one which will make some (rule 8). That the appointment of a superintend

idle or nugatory (Gilbert El. R’y v. Anderson, 3 ent is to be controlled by the statute of 1899, if

Abh. [N. C.) 434; People ex rel. Killeen v. Angle, valid, seems to be conceded by both parties.

109 N. Y. 564, 575; People ex rel. McClelland v. The Special Term held that the Civil Service Roberts, 148 N. Y. 360, 367; People v. Rathbone, Law of 1899 was constitutional, and that it re

145 N. Y. 434, 440; In re Smith v. Board of Superquired the street commissioners to appoint to the

visors, 148 N. Y. 187, 189; Cooley on Constituoffice of street superintendent the veteran who tional Limitations, 58). stood highest upon the eligible list furnished by the local civil service commissioners. Upon ap

Therefore, these two provisions should be conpeal the Appellate Division held that the act of

strued together, giving force to both, and to each 1899 was unconstitutional so far as it required the should be accorded its appropriate place and appointment of the person standing highest upon

proper effect, with some office to perform, and at such list, and reversed the judgment of the Special

tlie same time they should be so construed as to Tern.

operate harmoniously. We find no repugnancy

between these sections of the Constitution. SecSamuel H. Ordway for appellant; A. M. Sperry

tion 2 has been a part of the organic law of the for respondents.

State for many years, and obviously it was not inMartin, J. – The only controversy upon this tended to be superseded or changed, as no lanappeal re es to the constitutionality of the civil guage was employed in Constitution of 1894 service statute of 1899. The question involved is to indicate any such purpose. Moreover, the prothe power of the legislature to abrogate the right ceedings of the constitutional convention show that conferred by the State Constitution upon the local , it was intended to be continued in force in its authorities of a city to appoint such of its officers cxisting form. Section 9 was an amendment as are not directed by the Constitution to be adopted in 1894. Both being part of the present elected or otherwise appointed (sec. 2, art. 10). Constitution, the most that can be claimed is that

The office of superintendent of streets and city they should be read and construed together. property of the city of Binghamton falls withiri Reading the amendment of 1894 into section 2, it that statute, and, if valid, it is controlling as to the in effect provides that all city officers whose elecappointment of an incumbent of that office. The tion or appointment is not otherwise provided for provisions of the Constitution, by which its valid by the Constitution shall be appointed by such ity is to be tested, are section 2 of article 10 and authorities thereof as the legislature shall desigsection 9 of article 5.

nate for chat purpose, which appointments shall be Section 2 provides: “All city

officers | made according to merit and fitness to be ascer


tained by competitive examinations so far as prac-have, by their own methods, ascertained to be ticable. When thus read, it becomes manifest that fitted for a particular position, and their decision under the Constitution the power of appointment | is final, or if where more are certified the one still remains in such local authorities as the legis-graded highest must be appointed, then the civil lature has designated for that purpose. No altera- service commission becomes and is the actual aption in that respect has been made or attempted. pointing power. To reach such a result, however, The only change effected by the amendment of it must be held that the word "appointment" as 1894 is the requirement that the local authorities used in the Constitution is not to be given its in making such appointments shall make them usual and ordinary meaning, but may be so lim“ according to merit and fitness," to be ascer- ited and restricted as to leave in the local authoritained by examinations, competitive or otherwise. ties a mere ministerial duty, with no discretion, The amendment relates only to the qualifications nor choice, nor responsibility in respect to the which appointees shall possess to justify their ap- person to be appointed. Such a construction pointment under section 2, and the manner in would completely nullify the provision of the which they shall be ascertained. Thus the power Constitution which confers the power of appointof appointment is still vested in the local author-ing city officers upon the local authorities of the ities of the various municipalities of the State, and municipalities. A fair reading of the Constitution the amendment has wrought no change as to the leads to no such result. cfficers or bodies who are to make such appoint- Early in the history of the civil service reform in ments. The result is the same whether these sec- this country the signification of the word “aptions are read together or separately. Section 2 pcinted” was considered in connection with the in direct terms provides that such appointments United States civil service statute. The United shall be made by the local authorities. Section 9 States attorney-general, in discussing that quesplainly recognizes that method of appointment by tion, said: “If to appoint is merely to do a formal providing for appointments in the civil service act, that is, merely to authenticate a selection not without any designation, express or implied, of any made by the appointing power, then there is no new or other authority by which they are to be constitutional objection to the designation of offimade. All that is provided by that section is that

cers by a competitive examination, or any other appointments made by the proper appointing mode of selection which congress may prescribe Lower are to be according to merit and fitness, or authorize. But if appointment implies an exerbut it in no way attempts to change or interfere cise of judgment and will, the officer must be with the authorities who are to make them. These selected according to the judgment and will of the provisions of the Constitution show quite con- ferson or body in whom the appointing power is clusively that the appointment of city officers vested by the Constitution, and a mode of selecwhose election or appointment is not otherwise tion which gives no room for the exercise of that provided for by the Constitution must still be judgment and will is inadmissible. If the presimade by such local authorities of the city as the dent, in appointing a marshal, if the se legislature has designated for that purpose. -While pointing its secretary, if a court or head of the legislature is authorized to designate the local department, in appointing a clerk, must take the authorities who are to appoint, yet, when they are individual whom a civil service board adjudge to thus designated, their actual power becomes con- have proved himself the fittest by the test of a stitutional and is controlled by that instrument. competitive examination, the will and judgment In this case the local authorities so designated to which determine that appointment are not the will appoint a superintendent of streets and city pron- and judgment of the president, of the senate, of the erty were the board of street commissioners of the court, or of the head of department, but are the rity of Binghamton, and, hence, that board alone will and judgment of the civil service board, and had power under the Constitution to make an ad- that board is virtually the appointing power" nointment to fill that office. Yet the Special (Opinions U. S. Atty-Gen., vol. 13, p. 516). Term, without permitting it to in any way exercise A subsequent report of the United States civil that power, held the statute of 1899 to be valid, service commission contained the following stateand that under it the board had no right of selec- ment upon this subject: “The appointing power, tion or choice between the several candidates cer- conferred by congress upon the heads of departtified as eligible to the place or between the two ments, under the strict terms of the Constitution, veterans who were so certified, but that it was

is a power of choice — a right of selection for absolutely bound to appoint the veteran appointment from among several. That opporgraded highest by the civil service commission. tunity of choice is inseparable from the power itand granted a peremptory mandamus command

* A choice between four seems to ing the board to appoint that person.

preserve the authority of the appointing power, If the civil service commissioners have power to and to allow a sufficient variety of capacity for certify to the appointing officers only one appli- answering the needs of the public business. For cant of several who are eligible and whom they 'both these reasons a requirement that the appli

ate, in ap


self. *


cant graded highest be taken would be indefensi- 544). In further discussing that section and its ble” (Report of 1884).

purpose, the case of People ex rel. Williamson v. When we examine the report of the civil service McKinney (52 N. Y. 374) was cited, where Judge commission of this State we find that it is said: Andrews said: “ The obvious purpose of the pro" It is a wise provision that the commission has vision of the Constitution which has been quoted no power to make appointments or removals, or (sec. 2, art. 10) was to secure to the people of the

to recommend persons for appointment cities, towns or villages of the State the right to Any authority of that character would be fatal to have their local offices administered by officers its usefulness, and an unwarrantable interference selected by themselves.” He also quotes from with sound principles of administration. Its sole the opinion of Judge Allen, in People ex rel. duty in its subordinate sphere is to ascertain the Bolton v. Albertson (55 N. Y. 50), the following fitness or qualifications of applicants for the serv- language: “The theory of the Constitution is that ice. The appointing power of all public officers the several counties, cities, towns and villages are remains unimpaired, and should so remain. But of right entitled to choose whom they will have to the field of selection is limited to those who have rule over them; and that this right cannot be taken been ascertained to be qualified" (Report 1885). from them and the electors and inhabitants dis

The decisions of this and other courts, State franchised by any act of the legislature, or of any and Federal, as to the meaning of the word “ap

or all the departments of the State government fointment,” and what constitutes an appointment combined.” under the law, are to the effect that the choice of a Assuming, then, in the further discussion of this person to fill an office constitutes the essence of question, that the purpose of this provision of the the appointment; that the selection must be the Constitution was to vest in the local authorities discretionary act of the officer or board clothed designated by the legislature the power of apwith the power of appointment; that while he or pointment and to secure to each municipality the it may listen to the recommendation or advice of right of self-government, we are led to an examothers, yet the selection must finally be his or its ination of the statute of 1899 in the light of these act, which has never been regarded or held to be constitutional provisions and the decisions under ministerial (19 Am. and Eng. Ency. of Law, 423;

them. As we have already seen, the right of Johnston v. Wilson, 2 N. H. 202; Hoke v. Field, appointment, of necessity, involves the power of 10 Bush (Ky.) 144; People v. Fitzsimmons, 68 N. selection and the exercise of discretion and judgY. 514; Marbury v. Madison, i Cranch [U. S.] Without that power in no just sense can it 137; Craig v. Norfolk, 1 Mod. 122; People ex rel. be said that the right exists. If the act of 1899 is Babcock v. Murray, 70 N. Y. 521; Taylor v. Ker- valid and bears the construction accorded to it by cheval, 82 Fed. R. 497, 499; Menges v. City of the Special Term, then the local authorities desigAlbany, 56 N. Y. 374; People ex rel. Killeen v. nated by the legislature to appoint a superintendAngle, 109 N. Y. 564, 573). Thus it is seen that ent of streets and city property are absolutely the authorities upon the subject and the opinions deprived of any power of selection, but are reof those who have been connected with the civil quired to name the person graded highest. In service reform from its inception all agree in the other words, the real power of appointment is conclusion that the power of selection for a public transferred from the authorities in which it is office is and should be vested alone in the officers vested by the Constitution to the civil service comor boards authorized to appoint, although it be missioners. limited to persons possessing the qualifications Moreover, by section 10 of the act of 1899, if the required by the civil service statutes and rules, and mayor for any reason fails to appoint municipal that at least some power of selection is necessary civil service commissioners, the right to appoint to constitute an appointment, which should be them is conferred upon the State commission until exercised by the local authorities, independently the expiration of the term of the mayor then in of the civil service commission.

office, and until their successors are appointed and In Rathbone v. Wirth (150 N. Y. 459, 468) sec- qualify. The State commissioners are also authortion 2 of article 10 was under consideration by this ized to remove any municipal civil service comcourt, and its purpose and force were there dis-missioner for cause. Therefore there may be cir. cussed. In delivering an opinion in that case cumstances under which the selection of all the Judge Gray said: “The legislature is expressly appointive officers of a city will be controlled by authorized to designate the local authority, who the State civil service commissioners, and thus the shall appoint the local officers, and it is impliedly people and the local authorities of the municipality prohibited from doing more than that or from be deprived of any voice in the selection of its placing limitations upon this power of appoint-officers. If it be said that no such condition has ment.

* Every positive direction contains arisen in this case the answer is that the validity an implication against anything contrary to it, or of this statute must be determined by the nature, which would frustrate or disappoint the purpose character and scope of the powers attempted to of that provision (People v. Draper, 15 N. Y. I be conferred, although they may not have been


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