#### The People ex rel. William R. Fleming, Relator, *v.*William Dalton, Commissioner of Water Supply of the City of New York, and James Moffett, Deputy Commissioner, etc., Defendants.

(Supreme Court, Kings Special Term,

June, 1898.)

Civil Service — Chap. 186, Laws of 1898, applies to the Greater New York — Amendment or repeal of its charter.

Although the charter of,the Greater New York (Laws of 1897, chap. 378), contains provisions relating to the terms or tenure of office of all city officers or employees, the amendment to the Civil - Service Law (Laws of 1883, chap. 354), made by chapter 186 of the Laws of 1898, a general statute affecting the whole State, applies to the Greater New . York, and entitles the holder of a position, subject to competitive examination in the city civil service, to insist, under the terms of the amendment, that his .removal shall not be made until the reason therefor has been stated in writing and duly filed and until, he has had an opportunity to make an explanation.

This construction of the statute of 1898 is not affected by section 1618 of .the charter of the Greater New York, providing that neither the charter, nor any section or portion of it, shall be deemed to" be repealed or amended by any act of the legislature unless it is so expressly stated, or the intent to do so is- unmistakable: .

Application for a writ of mandamus.

Herbert H. Kellogg (Samuel H. Ordway of counsel), for relator.

William J. Carr, Assistant Corporation Counsel, for defendants.

Johnson, J.

Chapter 186 of the Laws of 1898, is in terms an amendment of the Laws of 1883, which was, and is recognized as, the statutory origin of what has come to be known as the .Civil Service Law of the State.,

Section 3, of the Law of 1898, provides that “ if a person holding a position subject to competitive examination, in the civil service of the state or of a city shall be removed or reduced the reasons therefor shall be stated in writing and filed with the head of the department or other appointing officer, and the "person so re*89moved or reduced shall have an opportunity to make an explanation.” It is shown that the relator held a position subject to competitive examination in the civil service of the city of New York, and that the officer 'at the head of the department to which he was attached has removed or attempted to remove him without following or complying with the provisions of the Law of 1898 above quoted.

It is practically conceded that if the provisions quoted above apply to the city of New York the writ here prayed for must issue.

This brings us to the very interesting and important question involved in this application.

The defendant contends that the provisions of the Law of 1898 do not apply to the city of New York or to persons holding positions subject to competitive examination under the heads of departments of that city, because the so-called charter of New York is a local or special act, containing, provisions in relation to the terms or tenure of office of all officers or employees of the city; and that the rule of construction is well settled, that a general act will be construed so as not. to affect, add to or limit a special act on the same subject.

The rule of construction is as stated by the defendant; and it is a rule predicated upon the principle that' the legislature in providing for the general, cannot be presumed to have intended to interfere with the express and ■ peculiar provisions that it had already made for local or special cases.

The question is, does that rule of construction apply here?

Carefully considering that question it seems to me very clear both on principle and authority that the rule of construction presented by the defendant cannot prevail.

The case of People v. Jaehne (103 N. Y. 182) is as near this as any two cases of statutory construction can well be; and as it seems to me is decisive against the construction claimed by the defendant. In that case it appeared that the charter of New York had defined the crime of bribery and the punishment therefor when committed in that city. The provision in that charter was complete and effective, and unquestionably had defined the crime and the punishment in that locality. The Penál Code made a definition for that crime, new in form, and provided a greater and, as was considered, a more adequate punishment. The Penal Code was a general act, and there as here was presented the rule against *90the repeal or abrogation of a special by a general law, a leading-case cited to sustain that contention being McKenna v. Edmundstone (91 N. Y. 231) here relied on by defendant. The court said the rule claimed did not apply in that case; that it could not have been intended that the Penal' C'ode should be stayed by the bounds of a city. The decision there made has been repeatedly followed or approved; 123 N. Y. 262; 112 N. Y. 112; 109 N. Y. 262; 128 U. S. 193.

This case seems to me stronger against the rule claimed by defendant than the Jaehne case.

But apart from the authority of the Jaehne case, I think the construction claimed by the defendant cannot prevail.

The provision in question, read literally, applies to employees of the class,of the relator in every city of the state. But probably every city, certainly most cities in the state are organized under special and local acts, commonly known as charters. Manifestly we cannot say that this general provision does not affect any of those special acts, because that would be, not to construe, or limit but to destroy an express and clear mandate of the legislature, But it may be said that the proper rule, of construction will limit the effect of this provision to those cities that have-no provision as to tenure of office for positions in the competitive class. Are there any such cities; and would it not be better to say that the rule claimed will leave this provision to apply to each" city, so far as its charter fails to make any provision for the tenure of positions in that class. And that rule would make the provision in question applicable to. this case. Besides the'Civil Service Law is already in force in every city of the state; and so in a larger and perhaps more accurate-sense is a part of the charter of every city; it became so by a general law, which, so far as I am able to see, was subject to the objection here made, if this, its latest amendment is so subject. But that the original law was fully effective in every city has had' universal recognition both with public officers and in the courts.

This provision in the law of 1898 but supplements or completes the great body of statute law included in the original Civil Service Act of 1883 and tire acts in terms amendatory of that act, while that body of statute, law carefully provided tests for the filling of all positions in the competitive class it left removals entirely at the will or pleasure of officers that it had said could not appoint. Obviously this provision, giving a person who through *91such tests has fairly secured such a position, the right before removal to explain or answer written and filed charges, is but a proper supplement entirely germane to the original act. Hence we have here a provision, in terms an amendment and in scope and effect a necessary or at least proper addition to a law already a part of the government of Hew York City. Recognizing that the original law came into the government of Hew York and of all cities *ex proprio vigore,*that is without aid from local charters or laws, it seems to me that it cannot be held that any rule of construction will prohibit the amendment from equally taking effect according to both its letter and its spirit.

I think the better argument from intent is that the legislature must have considered and intended that this amendment would,; as a matter of course following the original act have scope and effect according to its letter in all cities of the state. Hence I conclude that the provision in question, by natural and ordinary rules of construction must be held to be effective in Hew York city.

The remaining question to be here considered arises under section 1618 of the act creating the Greater City of Hew York. That section provides that neither that act nor any section or portion of it, shall be deemed to be repealed or amended by any act of the legislature unless it is so expressly stated or the intent to do so is unmistakable. Acts intended to state or define the intent of subsequent legislatures are certainly not favored, and they have sometimes been altogether rejected by' the courts. It certainly seems quite novel to embody in a local law a rule of statutory construction applicable only to it, and only intended to save or shield such local law from the effect of laws passed by a subsequent legislature. Our Constitution favors general legislation as to cities, and divides them into classes both to enforce, and to facilitate such legislation, legislation as to cities by classes. But if legislation of the character of section 1618 is to have the effect here claimed, would it not result that a law relating to cities of the first class would affect Buffalo alone? The precise scope and effect of a clause of this kind it is certainly not quite easy to state; and difficulties and considerations are abundant against a radical view in either direction. But apart from that consideration, it seems to me that the legislative intent is unmistakable that the amendment in question should have effect in all cities,.and certainly should not fail in the one city that contained nearly half of the population of the state. I can fail to find such an intent only by ignoring both the letter and the history of the law.

*92. In reaching-, the conclusion here indicated I can but state that I do not find weight Or force 'in the argument which was presented to. me, predicated On what is stated as the situation or political exigency which caused the passage of this act of 1898. I do not think that what has been.done for civil service in this state or nation has been-done for such transitory or elusive political advantage, and I feel-certain that arguments predicated on finding such an intent in the legislative department have not found lodgment or favor with the courts..

My ■ conclusion is that the relator is, entitled to the writ of mandamus according to .the prayer of his petition. ;

Mandamus granted.