ness name as indicating that its modes of manufacture of products are in accordance with hygienic methods. The court said in part: serving health by Emerson in his Essay on Nominalist and Realist" (Emerson's Essays, 2d 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 of Health" (Chambers' Journal, January 20, 1877). no question as to the use of a corporate name in And in the Oxford English Dictionary it is defined this business, which, by reason of similarity, un- as 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 of 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 from 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, continued 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 investigaseemed 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 Esculapius 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 press 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 litercal 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 a 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 Bona Valetudinis Con- and "hygienic." It is this meaning of the word scrvanda Thesaurus Lucupletissimus." It is used as 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 “Hygeia, or Essays Moral and Medical." In 1841 it is used as meaning the means or system of pre well as rame as signifying the claim that its products of water, whether congealed or liquid, are prepared in accordance with the rules of hygeia; and any injury the plaintiff may suffer in its business from such honest use is the necessary result of its choosing as a trade-mark a word which not only was a symbol which it might appropriate, but which was also a valuable word in language, which the law does not permit to be monopolized. So far as attaching the mark" Hygeia" to the defendant's goods is, in fact, a practical representation that such goods are made by the plaintiff, the plaintiff is entitled to protection; but that protection cannot be extended to preventing the defendant from using in good faith, with its natural signification, the English word "hygeia" in its corporate name or business as descriptive of its method of manufacture. Any injury which results to the plaintiff from such use is not in violation of the plaintiff's rights, and is not due to a wrongful act by the defendant, but solely to the difficulties the plaintiff assumed in its selection of such a mark. There ought not to be a new trial. The erroneous portions of the judgment are distinct from and independent of the other portion, and may be reversed, without disturbing it (Sherwood v. Sherwood, 32 Conn. 1, 15; Taff v. State, 39 Conn. 82, 85: Middlebrook v. State, 43 Conn. 257, 270). That portion of the judgment which enjoins the defendant against using, in connection with the business of selling or delivering distilled water in liquid form or for drinking use, or in connection with the business of making, manufacturing, compounding, putting up, bottling, selling, offering for sale, or delivering ginger ale, soda water, lithia water, or other artificial mineral waters in the preparation of which products distilled water shall have been used as an ingredient, the mark "Hygeia." either alone or in combination with the name of the product (as "Hygeia Water." "Hygeia Distilled Water"), in and upon its signs. advertisements, letter-heads. billheads, circulars. printed matter, wagons, bottles, jugs, siphons. labels, corks, seals, wooden boxes and cases, pack ages, receptacles, or any other thing used by it in srch business, is affirmed, the residue of said judgment is reversed and set aside. CIVIL SERVICE. PROVISION THAT APPOINTMENTS SHALL BE MADE FROM PERSONS GRADED HIGHEST, HELD UNCONSTITUTIONAL. COURT OF APPEALS. Decided May 1, 1900. THE PEOPLE OF THE STATE OF NEW YORK ex rel. GEORGE N. BALCOM, Appellant. v. WILLIAM H. MOSHER, LEWIS BAIRD, EDWARD E. POWELL and WILLIAM E. CARPENTER, constituting the Board of Street Commissioners of the City of Binghamton, Respondents. The act, chapter 370 of the Laws of 1899, providing that appointments in the competitive class of the civil service shall be made from those graded highest, is unconstitutional, being violative of section 2 of article 10 of the State Constitution, which provides that city, town and village officers shall be appointed by the authorities thereof designated by the legisla ture. The right of appointment which the Constitution vests in the local authorities involves the power of selection and the exercise by them of discretion and judgment, whereas the statute in question assumes to confine them to the performance of the ministerial act of authenticating a name certified to them by the local civil service commissioners, or, under some circumstances, by the State civil service commissioners. The validity of a statute must be determined by the nature, character and scope of the powers attempted to be conferred, although they may not have been actually exercised. Appeal from an order of the Appellate Division in the Third Department, reversing an order of the Special Term granting a peremptory writ of mandamus, commanding the defendants to appoint the relator to the position of superintendent of streets and city property of the city of Binghamton for a probationary term of two months. The charter of that city provides that the mayor shall appoint four commissioners, who shall constitute a board to be known as the board of street commissioners of the city of Binghamton; that it shall have the management and control of the street department, and its powers and duties are defined. February of every alternate year the board shall It then declares that on the second Tuesday in appoint a superintendent of streets and city Drop erty for the term of two years who shall receive of the superintendent, which are important and an annual salary, of $1,000. and defines the duties are of great interest to the welfare and proper management of the streets and property of the city. He is also required to give a bond, to be approved by the mayor, for the faithful discharge of his duties (secs. 1, 2, 3, 4, 5). The position of superintendent became vacant February 1, 1899, by the expiration of the term of the previous incumbent. In the following April the municipal civil service commission certified to the board of street commissioners the names of three persons appearing upon the eligible list prepared by the commission as the result of a competitive examination therefor. Upon the list were the names of Bolles, Balcom and Seabury. Bolles stood highest, Balcom next and Seabury last. Balcom and Seabury were both honorably discharged soldiers of the army during the late Civil War, and as such were entitled to preference over Bolles. Rule 14 of the local civil service commission, which was approved by the mayor and by the State civil service commission in 1898, provided that when any officer having the power of appoint-❘ ment to or employment in any position in schedule B (the competitive class) so requests, the commission shall certify to him the names as soon as practicable of three persons having the highest standing upon the eligible list, and the appointing officer shall thereupon appoint to the vacant position one of the three persons so certified to him, subject to any and all laws of the State of New York in relation to honorably discharged soldiers marines of the Civil War, giving them preference under the civil service rules. On April 19, 1899, the legislature passed an act in relation to the civil service of the State which took effect immediately (L. 1899, chap. 370). By section 13 it is provided: "Appointments shall be made to or employment shall be given in all positions in the competitive class that are not filled by promotion, reinstatement, transfer or reduction under the provisions of this act and the rules in pursuance thereof, by appointment of those graded highest in open competitive examination conducted by the State or municipal commission, except as herein otherwise provided." The State civil service rule relating to this subject is in effect a repetition of the statute itself (rule 8). That the appointment of a superintendent is to be controlled by the statute of 1899, if valid, seems to be conceded by both parties. The Special Term held that the Civil Service Law of 1899 was constitutional, and that it required the street commissioners to appoint to the office of street superintendent the veteran who stood highest upon the eligible list furnished by the local civil service commissioners. Upon appeal the Appellate Division held that the act of 1899 was unconstitutional so far as it required the appointment of the person standing highest upon such list, and reversed the judgment of the Special Tern. * whose election or appointment is not provided for by this Constitution, shall be elected by the electors of such cities, * or of some division thereof, or appointed by such authorities thereof, as the legislature shall designate for that purpose; while section 9 declares: "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 examination, 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.” In interpreting the Constitution it is to be considered as a whole, complete in itself; force is to be given to every provision contained in it, and each clause explained and qualified by every other. The words used must be presumed to have been employed in their natural and ordinary meaning, and if different portions seem to be in conflict they must be harmonized if possible, and that construction adopted which will render every provision operative rather than one which will make some idle or nugatory (Gilbert El. R'y v. Anderson, 3 Abb. [N. C.] 434; People ex rel. Killeen v. Angle, 109 N. Y. 564, 575; People ex rel. McClelland v. Roberts, 148 N. Y. 360, 367; People v. Rathbone, 145 N. Y. 434, 440; In re Smith v. Board of Supervisors, 148 N. Y. 187, 189; Cooley on Constitutional Limitations, 58). Therefore, these two provisions should be construed together, giving force to both, and to each should be accorded its appropriate place and proper effect, with some office to perform, and at the same time they should be so construed as to operate harmoniously. We find no repugnancy between these sections of the Constitution. Sec Samuel H. Ordway for appellant; A. M. Sperry tion 2 has been a part of the organic law of the for respondents. MARTIN, J.-The only controversy upon this appeal relates to the constitutionality of the civil service statute of 1899. The question involved is the power of the legislature to abrogate the right conferred by the State Constitution upon the local authorities of a city to appoint such of its officers as are not directed by the Constitution to be elected or otherwise appointed (sec. 2, art. 10). The office of superintendent of streets and city property of the city of Binghamton falls within that statute, and, if valid, it is controlling as to the appointment of an incumbent of that office. The provisions of the Constitution, by which its validity is to be tested, are section 2 of article 10 and section 9 of article 5. Section 2 provides; "All city officers State for many years, and obviously it was not intended to be superseded or changed, as no language was employed in the Constitution of 1894 to indicate any such purpose. Moreover, the proceedings of the constitutional convention show that it was intended to be continued in force in its existing form. Section 9 was an amendment adopted in 1894. Both being part of the present Constitution, the most that can be claimed is that they should be read and construed together. Reading the amendment of 1894 into section 2, it in effect provides that all city officers whose election or appointment is not otherwise provided for by the Constitution shall be appointed by such authorities thereof as the legislature shall designate for that purpose, which appointments shall be made according to merit and fitness to be ascer tained by competitive examinations so far as prac- If the civil service commissioners have power to certify to the appointing officers only one applicant of several who are eligible and whom they have, by their own methods, ascertained to be Early in the history of the civil service reform in this country the signification of the word "appcinted" was considered in connection with the United States civil service statute. The United States attorney-general, in discussing that question, said: "If to appoint is merely to do a formal act, that is, merely to authenticate a selection not made by the appointing power, then there is no constitutional objection to the designation of officers by a competitive examination, or any other mode of selection which congress may prescribe or authorize. But if appointment implies an exercise of judgment and will, the officer must be selected according to the judgment and will of the person or body in whom the appointing power is vested by the Constitution, and a mode of selection which gives no room for the exercise of that judgment and will is inadmissible. If the president, in appointing a marshal, if the senate, in appointing its secretary, if a court or head of department. in appointing a clerk, must take the individual whom a civil service board adjudge to have proved himself the fittest by the test of a competitive examination, the will and judgment which determine that appointment are not the will and judgment of the president, of the senate, of the court, or of the head of department, but are the will and judgment of the civil service board, and that board is virtually the appointing power" (Opinions U. S. Att'y-Gen., vol. 13, p. 516). A subsequent report of the United States civil service commission contained the following statement upon this subject: “The appointing power, conferred by congress upon the heads of departments, under the strict terms of the Constitution, is a power of choice-a right of selection for appointment from among several. That opportunity of choice is inseparable from the power itself. * * A choice between four seems to preserve the authority of the appointing power, and to allow a sufficient variety of capacity for answering the needs of the public business. For both these reasons a requirement that the appli cant graded highest be taken would be indefensi- 544). In further discussing that section and its ble" (Report of 1884). ap purpose, the case of People ex rel. Williamson v. McKinney (52 N. Y. 374) was cited, where Judge Andrews said: "The obvious purpose of the provision of the Constitution which has been quoted (sec. 2, art. 10) was to secure to the people of the cities, towns or villages of the State the right to have their local offices administered by officers selected by themselves." He also quotes from the opinion of Judge Allen, in People ex rel. Bolton v. Albertson (55 N. Y. 50), the following the several counties, cities, towns and villages are of right entitled to choose whom they will have to rule over them; and that this right cannot be taken from them and the electors and inhabitants disfranchised by any act of the legislature, or of any or all the departments of the State government combined." When we examine the report of the civil service commission of this State we find that it is said: "It is a wise provision that the commission has no power to make appointments or removals, or even to recommend persons for appointment. Any authority of that character would be fatal to its usefulness, and an unwarrantable interference with sound principles of administration. Its sole duty in its subordinate sphere is to ascertain the fitness or qualifications of applicants for the serv-language: "The theory of the Constitution is that ice. The appointing power of all public officers remains unimpaired, and should so remain. But the field of selection is limited to those who have been ascertained to be qualified" (Report 1885). The decisions of this and other courts, State and Federal, as to the meaning of the word pointment," and what constitutes an appointment under the law, are to the effect that the choice of a person to fill an office constitutes the essence of the appointment; that the selection must be the discretionary act of the officer or board clothed with the power of appointment; that while he or it may listen to the recommendation or advice of others, yet the selection must finally be his or its act, which has never been regarded or held to be ministerial (19 Am. and Eng. Ency. of Law, 423; Johnston v. Wilson, 2 N. H. 202; Hoke v. Field, 10 Bush [Ky.] 144; People v. Fitzsimmons, 68 N. Y. 514; Marbury v. Madison, I Cranch [U. S.] 137; Craig v. Norfolk, 1 Mod. 122; People ex rel. Babcock v. Murray, 70 N. Y. 521; Taylor v. Kercheval, 82 Fed. R. 497, 499: Menges v. City of Albany, 56 N. Y. 374; People ex rel. Killeen v. Angle, 109 N. Y. 564, 573). Thus it is seen that the authorities upon the subject and the opinions of those who have been connected with the civil scrvice reform from its inception all agree in the conclusion that the power of selection for a public office is and should be vested alone in the officers or boards authorized to appoint, although it be limited to persons possessing the qualifications required by the civil service statutes and rules, and that at least some power of selection is necessary to constitute an appointment, which should be exercised by the local authorities, independently of the civil service commission. Assuming, then, in the further discussion of this question, that the purpose of this provision of the Constitution was to vest in the local authorities designated by the legislature the power of appointment and to secure to each municipality the right of self-government, we are led to an examination of the statute of 1899 in the light of these constitutional provisions and the decisions under them. As we have already seen, the right of appointment, of necessity, involves the power of selection and the exercise of discretion and judgment. Without that power in no just sense can it be said that the right exists. If the act of 1899 is valid and bears the construction accorded to it by the Special Term, then the local authorities designated by the legislature to appoint a superintendent of streets and city property are absolutely deprived of any power of selection, but are required to name the person graded highest. other words, the real power of appointment is transferred from the authorities in which it is vested by the Constitution to the civil service commissioners. In Moreover, by section 10 of the act of 1899, if the mayor for any reason fails to appoint municipal civil service commissioners, 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 com In Rathbone v. Wirth (150 N. Y. 459, 468) section 2 of article 10 was under consideration by this court, and its purpose and force were there dis-missioner for cause. Therefore there may be cir cussed. In delivering an opinion in that case Judge Gray said: "The legislature is expressly authorized to designate the local authority, who shall appoint the local officers, and it is impliedly prohibited from doing more than that or from placing limitations upon this power of appointEvery positive direction contains an implication against anything contrary to it, or which would frustrate or disappoint the purpose of that provision" (People v. Draper, 15 N. Y. ment. cumstances 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 officers. If it be said that no such condition has arisen in this case the answer is that the validity of this statute must be determined by the nature, character and scope of the powers attempted to be conferred, although they may not have been |