New-York tribune., 1899-11-18

him to the G9Veshof ~ eppointmens from the egi-
bic list says he primary principle OF n ssection
from the three persons standing highest upon an an
eligible & list OF o9tsn s9DsH minimum standard had been
ascertaIned by open competitive eHarnii1 htn imito
held 6y the I ,ha opportunes FOR favortsm the
lowest point deemed possible since restriction lon
oT,ceTs discretion and responsibility for the APP
pontment' while the three names gave discre;
as Sufficient. particularly since 4 was supplement.
ed by appointment for prSDa'i1, Sas S,yen '
OTHER AUTHORITIES CITED.
Report Of the Civil Service Commission, 1897
Ihis portion Of Mr. Burts report was cited with
approval by judge Martin, speaking for the Court
Sweet agt Lyman l57 N. Y, See-1s with special
reference, however TO what was said IN n relatlon
70 thereto he sS When the
laws and civil Service rules existing when the
stitutional amendment was adopted, the position
taken upon this subject by its friends and advo-
ployed in the amendment there would seem to be
no doubt as to the purpose Of the amendment, nor
form rule as to probationary trials" -. o.o,,,-
Ss De1 3 % would a HS aS Us to IN the aopns
such amendment he trainers Of the Constitution
intended also to continue the hitherto uniform rue
highest and not to compel the appointment OF the
the appointing authority of the very essence OF the
power elsewhere granted.
Civil Service laws IN force when the Constitution
was amended and which did not conine the appoint
competitive examination, and which left some dis
cretion and freedom OF selection in the appointing
Of the Constitution.
In concluding his opinion in the case OF the People
INK for e sa are Of the dpon that
the statute OF 1883 and statutes amendatory thereof
are still In force and are not In conflict with the
In the case Of sweely l2 Misc Rep 174-1s1. It
Service
prior TO the adoption OF the new Constitution, ls
soldiers in harmony with the Constitution" That
case was affirmed without opinion In l46 ~ L. IN.
APPsns ms @ cages as People rel
den agt wurster. 1852 n. Y. 345-5s-7-S.
AN OPINION BY JUDGE oBRIEN.
Judge OBrien. who wrote the prevailing opinion
In the case Of McCleland VS.. Roberts. said:
1T is evident from the language of the new pro-
vision OF the Constitution. and from the debates IN
the convention which followed Its introduction into
reference to existing laws which were intended to
give to II immediate practical operation. So tnst
In adopting the CONSTITUTION. the people In
their original capacity decreed that thereafter
Brought within the operations Of existing laws on
the subject OF appointments. The mandate to the
forcement OF the section does not In any degree
conflict with those views That was a proper ana
prudent. though perhaps an unnecessary precau-
Moreover when this Constitutional provision
tion the statute and Civil Service rules to which
we have adverted were in force and were well
known TO and understood by the trainers OF that
provision. Hence 1t is but reasonable to suppose
that when i was proposed they had tn the exist existing g
supersede or interfere with them"
do not understand by this expression OF opinion
by Judge o. Brien that he meant that no change
simply that they were continued In force and ap-
piled to all departments Of the public service.
do not violate the principle involved in the amend
the Constitution. as for instance. the number
three. from which the appointing power must Sc.
not conflict with ;he Civil Service amendment Of
the Constitution. but that rule could not be
changed so as to limit the selection TO one, because
that as We have seen, would nullfy the appointing
power by deprying 1t Of all discretion and power Of
appointing power is not necessary TO carry into
effect Section 9 of Article Of the Constitution
SUPPORTED BY STRONG OPINIONS.
We have. then this condition confronting us: De-
cisons by the court Of last resort In the state,
holding that certain laws and rules In relation 10
the Civil Service passed prior to the amendment
in harmony with the Cvil Service amennnens u, I
adopted with reference to such statute and rules,
and relyIng upcn them 10 carry It into effect. And
| such statutes and rules in harmony with such
amendment and its principle permit the exercise OF
a. ana a. pTeSee 10 thS he paUponed by the
pointing power. limited ana restricted uscIetioh
and power Of selection It is true but some discre-
''C on the other hand, statute which compes the
selection Of the person graded highest by persons
other than the appointing power or officer. T., A
statute which is not needed in order 10 carry INTO
eeSt gnsF of the the eifr ey erye Amendment to the
Constitution. and which Is In absolute conhct WIZ
those sections OF the Constitution containing grants
| OF the appointing power. To hold such statute
valid Is to fail to give any effect to sucn sectiohs
| II is a rule Of construction that we should no,
80 construe a statute constitution az to lead
unreasonable or absurd conclusions ,rred And bV V
Section OF Article X, and other sections OF the
is sunnrreasonabe and absurd conclusion
particularly when effect can be given 10 DOTH ahc
I Conclude therefore that full force and effect
must be given to that portion Of Section OF Ar
| mower and the laws passed pursuant thereto, ex
| cept as the same may be necessarily limited by sec
That Chapter $40 Of the Laws OF 1899 and the
rules passed in pursuance thereof are IN so far "a
highest on the eligible list. in direct conflict wtlf
and notification OF the power Of appointment
! give such section any substantial effect. and ina
such portion OF the statute and rules are not nee
OF Section OF Article Y. nor to enforce the prin
ciple involved In such section and are to that ex
tent unconstitutional and void.
II follows. therefore, that those portions OF IN,
6rovde for the certifcaon by the Board Of Ciyi
Service Commissioners TO the ON oncer r hav'hs h& In tn
he highest standing upon the eligible list. AnC
the appointing officer shall therefore appoint e
fed to him have not been abrogated or repealed
by the provisions Of Chapter $40 OF the Laws o
1899 but are in full force and effect And 1t agail
follows that the Board OF Street Commissioners ar
at liberty to select either Of the two veterans certi
fed to them by the Civil Service Commissioners
and that the order granting the writ Of peremptor
mandamus directing the defendants to appoint tn
relator to the office Of Superintendent OF Stree
and City Property" should be reversed
JUSTICE LANDON DIssENTs.
Justice Landon, who writes the dissenting opinion
says:
In constituting Section 9 Of Article V Of the Con
stitution so far needful here, think II Is on.
| necessary to read its plain words. They seem &
me 10 import that merit and fitness" can be ascer
tained TO some extent by examinations: that to tn
extent That Il Is practlcable thus 70 ASCERTAIN then