The defendant Lahey has vacated his office as captain in the police force of the city of New York. Unless and until the police commissioner has reappointed or reinstated him to the office he has previously held the defendant has no claim or title to it. Power of appointment to the police force is expressly conferred upon the police commissioner by the charter of the city of New York. That power is not unlimited. Those appointed must possess certain qualifications. The defendant Lahey possessed those qualifications at the time of his original appointment. He no longer possessed them at the time of his attempted reinstatement. The rules of the civil service commission may provide the method by which appointment may be made in accordance with the mandate of the Constitution; they cannot confer power of appointment where none has been granted by the Legislature. They cannot enlarge power that has been granted where express limitation has been imposed by statute. Attempted restoration of the defendant Lahey to his office by the police commissioner is effectual only if the statute as well as the rules of the municipal civil service commission authorizes a restoration to office where new appointment could not be made. Such authority is not expressly given and there is nothing in the charter from which it might be implied. On the contrary, it appears that when the *Page 113 Legislature intended that the police commissioner should have power to reinstate, it gave such power expressly. (See section 1543 of the charter.) Argument that such power should be vested in the police commissioner should be addressed to the legislative body which under recent amendment to the Constitution has power to confer it and not to the municipal civil service commission.
The judgments should, therefore, be affirmed.
HISCOCK, Ch. J., CRANE and ANDREWS, JJ., concur with POUND, J.; LEHMAN, J., dissents in memorandum with which CARDOZO and McLAUGHLIN, JJ., concur.
Judgments reversed, etc.