It is admitted that the facts in this case are, in all respects, identical with the Leet Case (157 N.Y. 90), except here the relator was removed on the first of July, 1898, whereas, in the Leet case, his removal was on the first of April, 1898.
When the latter case was before this court, I preferred to place the decision upon the second ground stated in Judge GRAY'S opinion. With respect to the proposition discussed in the first part of his opinion, namely, that chapter 186 of the Laws of 1898 was not applicable to New York city, I entertained then, and still entertain, very grave doubts. There are considerations and arguments against that view that are very difficult to answer; still, I would, if necessary, be inclined to concur with him rather than to become responsible in any degree for throwing the affairs of a great city into inextricable confusion. To turn out all, or at least a great number, of the persons now engaged in the civil service of the city and to put others in their places, would produce a condition of things somewhat akin to anarchy. It is hardly possible to foresee the consequences that would flow from such a decision. It is entirely safe to say that whatever effect it might have upon the affairs of the city, it would produce a brood of litigations that would trouble the courts for a long time to come. The general proposition that a statute, general in terms, does not repeal, or in any way affect, a local statute embodied in a city charter, is, of course, perfectly correct. That, however, is not so when the language of the general law is such that it can be seen that the legislature intended to repeal or change the local statute; so that all depends upon the question whether that intention is necessarily expressed in the act in question. If that legislation was not aimed at New York city, it is very difficult to perceive what the purpose of the *Page 195 legislature was. I yield, however, to the argument of Judge GRAY on that question, for the reasons that I have already stated, but only on the grounds and with the qualifications hereafter stated. It is proper to say, however, that this is not the only ground upon which I am moved to concur in the decision below. There are other grounds that seem to me not only entirely satisfactory, but much clearer and conclusive, and I will proceed to state them in as brief a manner as possible.
It is admitted that on the first of January, 1898, when the new charter of the city of New York went into complete effect, the relator was in the employ of that city as superintendent of the almshouse. That place was then classified by the civil service rules in force as one subject to competitive examination and all the consequences that follow. But on the fifth of March, 1898, new regulations for the civil service were made and approved by the mayor, whereby the place which the relator held was put in the non-competitive class. No one now questions the power of the city authorities to make that classification. They acted within the scope of the authority conferred upon them by the city charter. The classification, therefore, was perfectly legal and effective, and it had the effect of making the relator's position non-competitive.
Now the sole question in this case is, whether the relator's position was in the non-competitive class on the first of July, 1898, when he was removed. If it was, then it is admitted that there was power to discharge him without any trial or hearing. We have seen that by the act of the civil service commission and the mayor, the relator was placed in the non-competitive class on the fifth of March, 1898, preceding his removal. It is, therefore, incumbent upon him now to show that in some way, subsequent to that date and prior to the first day of July, he was taken out of the non-competitive class and placed in the competitive class, since, unless it can be shown that he was in the competitive class at the time of his removal, the decision of the court below was unquestionably correct. *Page 196
The old classification existing in New York city prior to the consolidation was superseded by the classification of March 5th, 1898, and thereupon ceased to have any force or effect whatever and has never been revived. The latter classification, consequently, still remains in full force and effect, unless it has been set aside by some competent authority. It will not aid the relator to say, as his counsel has attempted to show, that after the passage of chapter 186 of the Laws of 1898, no rules or regulations whatever concerning the civil service have been in force in New York city, since, in the absence of such rules, the authority that had the power to appoint the relator could also remove him. The power of appointment, in the absence of express statutory restrictions, includes the power of removal. What the relator needs is not a decision that all rules were abolished, but that some rule was in force on July 1 that put him into the competitive class.
The learned counsel for the relator has not attempted to show how his client, who was placed in the non-competitive class on the 5th of March, 1898, got into the competitive class on or before the first day of July following. His argument is entirely silent on that vital question. It is quite clear, I think, that this result was impossible, in view of the situation in this case, and all this can be shown by the aid of principles well established.
It is necessary in the first place to get a clear notion with respect to the nature of the act which the civil service commissioners of the city of New York, with the approval of the mayor, performed on the fifth of March, when they made the classification that took the relator out of the competitive class and placed him in the non-competitive class.
In the case of Chittenden v. Wurster (152 N.Y. 362) this court held that "Such a classification is not void; it may be voidable, for his action is subject to review; but, until it is judicially determined that his classification was erroneous, it is a protection to the subordinate heads of departments and employees acting thereunder. The appointments were made in accordance with the statute and the classification as it then *Page 197 existed." This court was then dealing with the classification made by the mayor of Brooklyn, in which certain positions were omitted from the competitive schedule and placed in another schedule where competitive examinations were not necessary. That is precisely what was done in this case, and although it was contended in that case that the classification was repugnant to the provisions of the Constitution, yet the court held that it was good, and protected everybody until it was set aside. In that case it was also held that the remedy in such cases was to institute judicial proceedings to correct the classification. This is the language which the court used on that point, and which is correctly expressed in the head note to the case: "The people are not, however, without a remedy. There is one which is very simple and effective; if the mayor refuses to do his duty, or if he does it improperly, he may be compelled by direct proceeding, as by mandamus, or perhaps in some cases by certiorari, instituted by any resident citizen, to do it in accordance with the requirements of the Constitution and of the statute. The courts have the power to compel the discharge of such duties" by making the classification conform to the statute.
It is true that the doctrines of the case I have cited were combatted by a minority of the court, but they were approved by the majority, and, therefore, made the law of the land in the same sense as if all the members of the court concurred. The principles of that case became a rule of action for the guidance of the authorities of cities, the whole public and the legislature itself, and we must assume that they were accepted and acted upon. One of the most important of these rules was that a classification once made was good until set aside or modified by some judicial proceeding, and so long as it remained unchanged by the action of some judicial authority, it bound every one and protected every one acting under it or holding a place under it.
The classification which placed the relator in the non-competitive schedule has not been changed or set aside by any such proceeding; and the inquiry is how has it been affected *Page 198 so as to take the relator out of the schedule in which he had been placed and put him into another schedule where he was not placed. Obviously, if that has been done at all, it has been done by the legislature in the enactment of chapter 186 of the Laws of 1898; but that statute cannot properly receive any such construction. In the first place, the classification of March 5th having been made in pursuance of statutory authority, and being reviewable by certiorari or enforceable by mandamus, was a duty imposed upon the mayor and the civil service commissioners judicial in character. Of course, if it was reviewable by certiorari it must have been a judicial act, since an executive, legislative or ministerial act is not so reviewable. The power of the legislature is restricted to the enactment of laws, or, in other words, to powers that are legislative in character. It cannot set aside, annul or correct a judicial act; and it had no more power to set aside this classification than it had to set aside a judgment of the courts. The act of making the classification could be affected only by some judicial proceeding; it could not be reviewed or corrected, if erroneous, by the legislature. The legislature has no power to appoint or remove an officer or employee of a city. A statute passed to turn out one class of officers and employees in a city and to put some other class in is not a legitimate or constitutional exercise of legislative power. It is a usurpation of the executive or judicial power. A statute to annul or change a judicial determination once made, whether by a court or some other body in the performance of a duty authorized or required by law and judicial in its nature, is open to the same objection. The courts should always construe a statute as an exercise of legislative power within the restrictions of the Constitution, and not as an exercise of some other power which the legislature does not possess. While the legislature had no power to review or set aside a classification already made, it had the power to provide in the future for a different method of classification. That is to say, it had the power to provide that in the future all classifications made should have the approval, not only of the mayor of the city, but of the civil service commissioners *Page 199 of the state. That is the power which it attempted to exercise. We should also always construe a statute to be prospective in its operation rather than retroactive. Hence, it is plain that the legislature must be deemed to be enacting a rule to take effect in the future and not to set aside or abrogate something that had been done by the municipal authorities previously under existing laws. The legislature had power to enact that thereafter classifications should be made upon certain principles and approved by certain state authorities, and then it becomes the duty of the civil service commissioners to make new rules or modify the old ones and submit them to the state civil service commissioners for approval; but until they perform that duty, either voluntarily or by the direction of the courts, the classification of March 5th remained in full force, and, consequently, until that change was made, the relator remained in the non-competitive schedule. In the enactment of the statute in question the legislature exercised that power and nothing more. It certainly made no new classification, but devolved that duty upon the local authorities, and a new one was necessary in order to take the relator out of the non-competitive class and put him into the competitive class. The relator's appeal must fail unless he is able to show, what obviously cannot be shown, that the legislature had not only the power to abrogate and did abrogate the classification of March 5th, but actually made a new classification for itself, in which the relator was taken from the non-competitive list and put into the competitive list. The learned counsel for the relator will search in vain for either the power to thus annul an act held to be judicial in its nature, or for any language in the statute to show that the legislature had the slightest intention to do any of these things. The problem that faces the relator at every stage of the argument is to show how and when he got out of the non-competitive schedule and got into the competitive one, since, unless he was in the latter schedule when removed, his removal was clearly legal.
On a careful reading of the act of 1898, it will be seen that *Page 200 the purpose which the legislature had in view was to require the local authorities to change the rules and not to annul an act which had already taken effect judicial in character. The statute provides that within two months after its passage it shall be the duty of each of the mayors of cities in and by regulations to cause to be arranged in classes the several clerks and persons employed or being in the public service of the cities. Now manifestly this was a legislative requirement that upon a designated day in the future the mayors of cities should classify the persons in the civil service in a particular manner, which was to be approved by a particular authority, which the existing law did not require. But, while it prescribed a new rule of action for the authorities in cities, it did not abrogate any rule which was then in force. If the mayors within the times designated did not proceed to enact the new rules, or to have the old ones modified and approved by the state civil service commissioners, they could be compelled to do so, but in the meantime the old classification existed and stood in full force.
It is too plain for argument, as it seems to me, that this statute could not and did not take the relator's position out of the non-competitive schedule, where it was placed by the classification of March 5th, and much less did it put the place in some other schedule.
The statute also contains this provision, which, perhaps, is the most important in the whole chapter: "Such regulations herein prescribed and established, and all regulations now existing for appointment and promotion in the civil service of said city and any subsequent modification thereof shall take effect only upon the approval of the mayor of the city and of the New York civil service commission." This language obviously refers to regulations "herein prescribed" and also to regulations "nowexisting," and then provided that they "shall take effectonly," etc. This language cannot, by any fair construction, be deemed to annul a classification that had already taken effect. It speaks of something that shall take effect, and consequently did not refer to a thing that had *Page 201 already gone into effect. It imposed a duty on the local authorities to modify the existing rules under which the various persons in the public service were classified, or to make new rules, and that neither the old rules as modified, or the new rules when made, should take effect until approved by the state civil service commission. The whole purpose of the statute was to set the local authorities again in motion, and require them to do their work over again by making another classification more satisfactory to the legislature. But in the meantime the civil service of the city was not remitted to chaos, since the rules and classifications of March 5th were in full force until superseded by the new or modified rules, which the legislature evidently thought to be necessary. The law avoids an interregnum in government in which no law is in force and society is reduced to anarchy, just as nature abhors a vacuum. So that, upon a careful reading of the statute, the conclusion is plain that the legislature were not seeking to annul or set aside any act, judicial or otherwise, that had already been performed and had gone into effect, but was providing for a new rule to be enacted by the local authorities to become operative in the future. The day within which it became their duty to act was fixed, and if the city authorities refused to comply with the new law, they could be compelled by judicial proceedings. This seems to me to be a more reasonable construction of the work of the legislature, than to hold that it was not engaged in legislation at all, properly speaking, but was seeking to set aside and annul a classification already made, under which the relator's legal status as an employee of the city was fixed. In a word, this statute, I repeat, did not take the relator's place out of the non-competitive schedule and place it in the competitive schedule; and it is necessary for him to establish that proposition in order to succeed upon this appeal. It may be added that his counsel has very wisely refrained from even the discussion of such a proposition. So I arrive at the conclusion that the decision of the court below was correct and ought to be affirmed. *Page 202