I concur in many of the general conclusions of Judge GRAY with respect to the questions involved in this case. But since I have arrived at the conclusion that the judgment appealed from is right in its entire scope and meaning, I prefer to state, in as brief language as possible, the grounds upon which it is based. Many of the questions discussed at the argument and upon the briefs of counsel have long been settled, and have been so clearly removed from the domain of doubt or discussion that a bare statement of the principle is sufficient.
The right of a taxpayer to maintain such an action is no longer an open question. The statute gives the right in express words, and this court, in at least two cases, and upon facts substantially identical with those appearing in this record, has sustained the right. (Rogers v. City of Buffalo, 123 N.Y. 173;Peck v. Belknap, 130 N.Y. 394.)
We have recently sustained the right of a taxpayer to maintain an action to restrain the common council of a city from proceeding to appoint police commissioners under a law claimed to be in violation of the Constitution. (Rathbone v. Wirth,150 N.Y. 459.) This is an action to restrain the payment of salaries to persons appointed in the civil service of the city, as it is alleged, in violation of the same instrument. That was an action to restrain the municipal authorities from making the appointments for similar reasons. No substantial distinction can be made between the two cases, and if it was ever desirable to limit the right to bring actions of this character by refining away the statute, it is too late now. There is nothing in this case to warrant the court in reviewing its former decisions on this subject, much less in reversing them.
Nor is the right to maintain the action affected by the fact that the alleged illegal act may be reviewed or corrected in some other way. Such a rule would practically repeal the statute, since many of the official acts of public officers are *Page 384 subject to such review The taxpayers' action is an additional remedy in equity, and exists quite independent of all other methods for testing the question whether the proceedings or the official acts in any given case are or are not illegal.
The controversy in this case depends upon the meaning, scope and application of a new provision which has been inserted in the Constitution: "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 examinations, which, so far as practicable, shall be competitive; * * * Laws shall be made to provide for the enforcement of this section." (Art. 5, § 9.)
No one can deny that this provision of the Constitution is a limitation upon the power of appointment to places in the civil service. It is not a mere authority to the legislature to create a limitation. It is a limitation in itself, and by its own force affects not only the power of the legislature over the subject, but that of every public officer in the state who has been intrusted with the power to make appointments. All such officers who, since the first day of January, 1895, have taken the oath to support the Constitution, have virtually sworn that they would make no appointments in the civil service except according to merit and fitness, to be ascertained, so far as practicable, by competitive examinations. The argument of the learned corporation counsel, as I understand it, is to the effect that until the legislature shall make further regulations on the subject, it is impossible to carry out the pledge involved in such an oath. Since it will be necessary to refer to this subject hereafter we need not now stop to inquire how far it is true in fact that public officers are confronted by such a dilemma.
The scope, meaning and intent of every constitutional limitation upon power must, in the end, present a judicial question. Administrative or ministerial officers, who have to deal with the limitation in the performance of their duties, are bound to decide all questions that may arise as to its application *Page 385 according to the best lights that they may have. They must discharge all the obligations imposed by conscience and their oaths according to the best of their ability. But when their acts are questioned, as they are in this case, they must be brought to the test of the Constitution through judicial action. The governor, the legislature, the mayor of a city, and other officers exercising like powers, must frequently determine for themselves the meaning of the Constitution, but when it is alleged that any such determination is erroneous, the dispute must be finally settled by this court.
That is the precise character of the controversy presented by this record. The comptroller and other executive officers of Brooklyn have filled eleven designated places in the civil service of that city since the Constitution went into effect without any examination whatever to test the merit or fitness of the appointees. If they have made these appointments with regard to merit or fitness, then, obviously, they must have ascertained these qualities in the appointees in some other way, or by some other method, than that which is clearly pointed out in the Constitution. The validity of these official acts is challenged by the citizens of Brooklyn who pay taxes and who are authorized to bring all such acts to the test of the law and the Constitution by an appropriate action.
That it was practicable within the meaning of the Constitution to ascertain the merit and fitness of these eleven persons by competitive examinations, is not, I think, now an open question. It was found unanimously by the court below that such examinations were practicable, and even if the question could be regarded as an original one here there could be no doubt about it from the nature of the duties to be performed. There was a stamp clerk and a clerk to the board of aldermen, a dockmaster and an assistant warrant clerk, a collector of license fees in the fire department and a surveyor of land in the department of assessments, a clerk in the license bureau and another in the department of audit, what is called a secretary to the department of buildings, with duties purely clerical, and a clerk in the law department, and, finally, a finance clerk in the *Page 386 health department. It appears that his duties are to make searches in the department for the records of marriages, births and deaths, and to receive and pay over to the city the fees therefor, which amount in the whole year to about $158 per month.
The title which is given to this appointee does not describe his duties, which are of the most routine character. They cannot by any effort of the imagination or any refinement of reasoning be made to bring the place within any exception to the general rule of competitive examination. The duties of such clerks or agents are not involved in any doubt or mystery. They are matters of common knowledge, and it would be impossible for any court to assign any satisfactory reason why such places cannot be filled by the appointing power according to the scheme of the Constitution.
But the plaintiffs at the trial did not rest the case upon the right of the court to take judicial notice of the duties of the several appointees. They gave a mass of testimony derived from various sources tending to show that it was practicable to fill all the places by competitive examination. The defendants gave none, and, so far as this question depends upon facts, the proof on the part of the plaintiffs was uncontradicted.
Six judges of the Supreme Court have determined unanimously that it was practicable to fill all these places by competitive examinations. In my opinion this court has no right to review the decision upon this question. Whether it is practicable to do a certain thing in a certain way must in some measure at least depend upon facts and circumstances that may be the subject of inquiry at the trial. The question, when determined there and affirmed by the Appellate Division, should be regarded in this court as settled for all the purposes of the case. The jurisdiction of this court is confined to questions of law, and whether it is practicable to fill a given place in the public service by competitive examination is not a pure question of law. It may in many cases require proof as to the nature of the duties to be performed, and when the proof is given it is for the trial court to pass upon it, *Page 387 and the finding is conclusive upon this court. It seems to me that even before the provisions of the present Constitution went into effect that we would be bound to follow the findings of the courts below on this question. In the face of the findings of the courts below, that it was practicable to fill the places in question by competitive examinations, the learned corporation counsel does not attempt to show that it was not. His position is that the appointing power had authority to decide that it was not practicable to fill the places by competitive examinations, and that, having so decided, the courts have nothing further to do with the question. The soundness of this proposition will be considered hereafter, but enough has been said to show that this court is not concerned with any question with respect to the practicability of filling all these places according to merit and fitness, to be ascertained by competitive examinations. That question may be regarded as settled, so far as this case is concerned, by the judgment of the courts below.
When the Constitution went into effect on the first day of January, 1895, it became, with respect to all appointments and promotions in the civil service of the state or in any city, the supreme law of the land, anything in any statutes, rules or regulations to the contrary notwithstanding. In so far as the statutes, rules and regulations upon the subject of admissions to the civil service were not repugnant to the Constitution, they undoubtedly remain in force, but in so far as they were inconsistent with or repugnant to it, or in any respect tended to defeat, obstruct or evade the plain mandate which it contained, they were swept away and immediately ceased to exist. The mandate of the Constitution was that thereafter a certain thing should be done in a certain way if it was practicable to do it in that way, and it was not only an affirmative command to do the thing in that way, but a negative prohibition against doing it in any other way. (People v. Draper, 15 N.Y. 544; Rathbone v.Wirth, 150 N.Y. 468.) If the Constitution did not contain within itself, or with the existing laws which it preserved, all the means for the execution of the affirmative *Page 388 mandate in the way prescribed, it certainly was potent enough in its negative or prohibitory injunction to forbid and prevent the doing of the thing in any other way. Any constitutional provision is self-executing to this extent, that everything done in violation of it is void. (Cooley's Const. Lim. [5th ed.] 100;Law v. People, 87 Ill. 385.) If it be true that the defendants had not been furnished by the legislature with the necessary machinery for making appointments in the manner prescribed by the Constitution, then the result would be that they could not make them at all.
We have, therefore, a case before us where the Constitution commands that appointments shall be made only after competitive examinations, when such examinations are practicable. We have the question settled that it was practicable to fill the places by competitive examinations, and we have the conceded fact that the appointments were made without any examinations whatever. The vital issue between the parties to this action is whether these appointments were legal or illegal, whether made in violation of law or in conformity with law. I have thus far confined the discussion to certain propositions that are either admitted or not seriously contested. Most, if not all of them, are so plain as to be self-evident. If they are not then they are, as it seems to me, so strongly entrenched in reason and in law that they cannot be weakened by argument or entangled by sophistry. They lead logically and inevitably to the conclusion that the appointments in question were illegally made, and but for the elaborate argument of the learned corporation counsel to prove that they were made in accordance with the Constitution and the law the discussion might end here.
That argument deserves a fair analysis, though it is quite difficult to summarize it accurately. It would not be fair to approach the argument in justification of these appointments in any narrow, captious or fault-finding spirit. We are not much concerned with individuals, and we can look at their acts and conduct with the broadest charity. We are dealing with principles and not men. We are concerned with the Constitution *Page 389 and the laws in their relation to the civil service of a great state, and in the great cities of that state. The future of the law which now rests upon the basis of the Constitution is dependent upon the decision of this court. The decision in this case will either place the reform upon a reasonable and just basis, and command the approval of all good men, or it will be a step backward.
We cannot allow this case to turn upon any smaller question than the true intent and meaning of the Constitution. If the intent and meaning be what the corporation counsel claims then there is no case against the officers who have been made defendants, but if, on the contrary, the Constitution has been ignored in making the appointments, we ought to declare the fact, no matter who is affected by the result.
The argument of the learned corporation counsel may be summarized as follows:
(1) The Constitution has neither enlarged the duties nor abridged the powers of public officers making appointments in the civil service of the state or of any city. The Constitution was simply intended to preserve the statute and it means just what the statute meant and no more.
(2) These appointments were made in conformity with the statute and rules regulating admissions to the civil service in force prior to January 1, 1895. That the rules under which they were made were then in force and are still in force, not having been affected by the adoption of the Constitution.
(3) That the mayor of Brooklyn was authorized to determine and has determined that it was not practicable to fill any of these eleven places by competitive examinations, and that such determination protects the defendants and all their appointees and is binding upon the courts.
(4) That all questions with respect to such appointments are purely administrative within the power and discretion of the appointing power, whose decision is final and not subject to be questioned in an action by a taxpayer.
These propositions are slightly softened or modified in the course of the argument by certain exceptions, and these exceptions *Page 390 will be noticed hereafter, but it is believed that this is a fair outline of the argument, though perhaps expressed in different form of words. It will be convenient here to briefly notice the third proposition since it is based upon matters of fact. There is nothing in the record to show that any mayor of Brooklyn ever made any decision that these eleven places, or any of them, could not be filled by competitive examinations, or that it was not practicable to do so. There is nothing to show that any such question was ever considered or passed upon. It does appear that all these places were put into the non-competitive schedule from time to time by the mayor, two of them having been placed there since the present Constitution went into effect. So far as appears the only reason for this was the request of the heads of departments. It is a singular fact that no mayor has ventured to assert, either as a witness in this case, or in any other way, that even one of these places was placed in that schedule for the reason that it was decided to be impracticable to fill the place by competitive examination. The corporation counsel is thus compelled to stand upon the narrow and, as it seems to me, untenable ground that the mere designation of these places in the non-competitive schedule, for any reason or for no reason, necessarily and conclusively imports a determination by the proper authority that it was not practicable to fill the places by competitive examinations. This, of course, would make every arbitrary addition to that schedule conclusive, a proposition that seems to me to be impossible to defend in reason or law.
The non-competitive schedule plays such an important part in this controversy, and indeed must play such an important part in the administration of every civil service law, that the questions in dispute cannot be fairly treated or clearly understood without an accurate knowledge of the origin, growth and real meaning of that schedule. Before the Constitution was adopted, and under the statute and rules, the administration of the law in the state was left largely with the governor, and in cities with the mayor. They could exercise what may well be called the dispensing power, that is, the power to say *Page 391 whether the law and the rules should apply to a particular case. Applications were constantly made to them to take some particular place out of the operation of the law, and it is known that these applications were seldom refused when pressed by the head of some department, and so the non-competitive schedule became the repository of executive favors. It was not necessary to determine, and in fact scarcely ever was determined, that it was not practicable to fill the place by competitive examinations. They could exempt the place for various reasons at discretion or without any reason. This resulted from the vague language of the statute which did not, as the Constitution now does, unqualifiedly limit such special exceptions to cases where it is not practicable to fill the place by competitive examination.
The places were to be filled by examinations "as nearly as the conditions of good administration will warrant." The mayor was to make regulations for the admission of persons to the civil service of the city upon the principle of competitive examinations "as may best promote the efficiency thereof." These vague and ill-defined exceptions and limitations did not confine the appointing power to the question of practicability, as the Constitution now does. It is true that the word is used in the statute, but only in connection with the vague discretionary provisions above referred to. The result was, as might well have been expected, that there was constant complaint that the power to dispense with the operation of the law was frequently abused. Such vague powers always have been and always will be abused. The dispensing power was the prolific source of irritation between the government and the people in England for centuries, and we know what the result was in the end. When the original regulations were made by Mayor Low, in 1884, there were only five of the places in question placed in that favored schedule. The other six have been added since 1894. The exemption of the five places in the original schedule was not made because it was impracticable to fill them from the eligible list, but on grounds of policy and expediency, which constrained a cautious executive *Page 392 to avoid attempting too much with a new and untried law which he had reason to believe was not popular with all classes. The other six places were dropped into the schedule since 1894 at the request of the heads of the departments.
So it is plain that this schedule, at the time these appointments were made, had little, if any, relation to the question of practicability. It represented many other things and was based upon many other reasons.
It represented a liberal exercise by the mayor of his dispensing power, based simply upon the wishes of heads of departments. They frequently found the law an obstacle in the way of discharging obligations which were supposed to be due to personal or political friends, and often succeeded in persuading the executive to relieve them from its trammels, and the non-competitive schedule was the favorite device for this purpose.
Thus, by the exercise of the discretion conferred by the statutes upon the executive to dispense with the law in special cases, all the evils which the statute was intended to suppress grew and flourished under it until the method of administration become a reproach to all concerned, and the law itself was in danger of falling into contempt with the people. The convention to amend the Constitution was regarded by the friends of the law as a favorable opportunity to rescue it from the scandal connected with administration which originated in the exercise of discretionary power, and they seized upon it and the result was that the principle was embodied in the Constitution in language that is not to be mistaken. It was precisely the abuses to which I have referred, and especially the evasions which had theretofore existed through the operation of the non-competitive schedule, that were intended to be swept away by the Constitution. Nothing can be clearer than that there was present to the minds of the members of the convention the abuses in the administration of the law which have been referred to. The amendment was evidently drawn by the friends of the reform, and the convention was called upon to adopt or reject it. The former course was *Page 393 decided to be the best, and, under these circumstances, what this or that member said upon the subject, or the interpretation that he put upon the language of the amendment, is of little consequence. The obvious effect of the Constitution was to remove the eleven places in question from the non-competitive schedule since it was practicable to fill them all by competitive examinations.
It should also be noted that the placing of these positions in that schedule was in the nature of a privilege or a favor to the appointing officer. He was not obliged to accept the privilege or act upon the dispensation. He could still fill the place, if he wanted to, from the eligible list made up as the result of competitive examinations. He could still act upon the general rule, which was competition, and refuse to avail himself of the right to dispense with the law. A place that may be filled without an examination may also be filled at the election of the appointing officer by the appointment of a person whose merit and fitness for the place have been ascertained by competitive examination. Even in cases where the constitutional test may be dispensed with, the fact that the candidate has passed the test can never disqualify him for any appointment.
The learned corporation counsel argues that the defendants could not have made these appointments in any other way. In this he is clearly mistaken, since, when the non-competitive schedule was abrogated by the Constitution, they had the eligible list to fall back upon and could have selected every one of the appointees from that list. Had they taken that course, they would now stand upon solid ground and would be armed with the weapons for a complete answer and defense to all such actions as this. The claim that the mandate of the Constitution could not be obeyed, when the appointing power had all the time at hand the eligible list to select from, cannot for a moment be entertained. Even if it were true that these appointments could not have been made under the Constitution, the worst that could happen would be, not to make them *Page 394 at all. The defendants found the places all filled by persons, many of whom had served for years, and, even if the Constitution had tied their hands and left them without the power to change a stamp clerk or a custodian of the records of marriages, birth sand deaths, there is nothing in the record to show that this would have been any great calamity.
But we have seen that, in so far as the non-competitive schedule had been abrogated by the Constitution, the competitive schedule and eligible list took its place, and there was not the slightest difficulty in making the appointments from them. The eleven names in question were not found on any list. The places had been thrown into the non-competitive schedule, and the defendants, in the belief, no doubt, that the old state of things continued, selected the appointees according to their own will.
The learned corporation counsel has made one important exception to his fundamental proposition that the power of the mayor to dispense with examinations in special cases still exists. He admits that the privileges of veterans have been abolished. This court has so decided, and also that the legislature has no power to dispense with the law in cases where the compensation does not exceed $4 per day. (Keymer Case,148 N.Y. 219; Sweeley Case, 12 Misc. Rep. 174; 146 N.Y. 401.) This is a significant admission. If the legislature had no power to exempt veterans, and had no power to make the test of practicability depend on compensation, what became of those numerous exemptions from all examinations made from time to time by the mayor, not only before but after the Constitution went into effect, where examinations were practicable? What good reason is there for the contention that, while the former have been abrogated or invalidated by the Constitution, the latter remain in full force? The Constitution has left but one exception to the general rule, and that is a case where it is not practicable to fill the place by competitive examination. It is not enough that the legislature, or some administrative officer, has declared that it is not practicable in a given case. It must appear, when all the reasons and circumstances are *Page 395 known, to be in fact impracticable, and, while that question may be decided by the appointing power in the first instance, yet in all cases of dispute, it must be decided by the courts.
The fatal weakness in the argument of the learned corporation counsel is found in the assumption that not only all assignments made by the mayor to the non-competitive schedule prior to the adoption of the Constitution on January 1, 1895, remained in force, but that after that date he had the power to continue to make such assignments, with or without reason, and without regard to the question whether examinations were practicable or not. In other words, the claim is made that the dispensing power has not been affected by the Constitution. This position is plainly untenable. Every assignment to that schedule made before the Constitution took effect, in which it was practicable to fill the place by competitive examination, has been abrogated, and every assignment of a like character since made is void since they are in conflict with the Constitution.
When the appointments were made they were all by force of the Constitution in the competitive schedule, which in fact and in terms covered every one of the places, and the appointees should have been selected from the eligible list.
The question whether the Constitution is self-executing is not a practical one in this case. The question is whether, by its own force and by force of all the civil service laws and regulations which are behind it and are preserved by it, these eleven appointments should not have been made from the eligible list. The Constitution found and left a complete system of statute law in force which was ample to enable every appointing officer to execute its mandate, and it extended the civil service principle to all the civil divisions of the state, including villages. It is said that since counties and villages have no adequate means of putting the constitutional provision in force, it cannot be self-executing, but must await legislation.
This is undoubtedly the most favorable situation that can be selected to enforce the argument that the Constitution is *Page 396 dependent upon legislation. It has been said that a constitutional provision is self-executing if it supplies a sufficient rule, by means of which the right given may be enjoyed and protected or the duty imposed may be enforced. (Cooley's Const. Lim. 100.)
While we are not concerned in this case with appointments in villages or counties, it would not be difficult to show that there is not a village or county in the state in which the mandate of the Constitution cannot be complied with to-day without further legislation. It is only necessary that the appointing authority should be in harmony with the law and absolutely bound to obey it and respect his official oath. If he is zealous to comply with the Constitution all difficulties will immediately vanish. Let him but announce to the public that he will make no appointments to office except according to merit and fitness, to be ascertained by competitive examinations, and he will not fail to find candidates at hand who have complied with the test. The state civil service examinations are held periodically in every locality of the state, and from that source he can obtain an abundant supply of qualified candidates for every place that he may desire to fill. It is not necessary in order to put the mandate of the Constitution into immediate operation to wait until a village or a county civil service board is organized by the legislature. All the Constitution requires is that there shall be an honest, open, competitive examination, and the state can furnish that even to candidates in the particular county better than any local authority.
A village or county civil service board would be likely to be or become a weak, inefficient thing, while the state has every facility for placing at the door of the appointing officer all the machinery necessary to enable him to execute the mandate of the Constitution. Any county clerk or other county officer who has appointments to make, and who earnestly desires to comply with the Constitution, will find no difficulty in accomplishing his purpose. The legislature has undoubted power of regulation, and doubtless there may be cases where it should be exercised, but the broad assertion *Page 397 that the Constitution must remain a dead letter until the legislature moves cannot be sustained by any sound argument.
One of the main purposes of the Constitution, and of every civil service law or regulation, is to produce an honest, eligible list. When the appointing power has full and free access to that there can be no difficulty in complying with the letter and spirit of the Constitution. Even before the constitutional provision went into effect competitive examinations were the rule of the civil service, and no examinations whatever the exception. These exceptions have been abolished, and the Constitution has put it out of the power of the legislature, or of any executive officer, to make a new exception, or to maintain an old exception to the general rule that competition shall prevail, unless shown, as matter of fact, to be impracticable. That is the only condition upon which the Constitution will permit any deviation from the law, and since, in every view of this case, that condition did not exist, the appointments in question were in violation of the commands of the Constitution.
There is, it seems to me, a strange discord between the doctrines of the prevailing opinion in this case and the former utterances of this court on the same questions. The keynote of that opinion is that the classification of the governor or the mayor, though in conflict with the Constitution and the statute, is, nevertheless, good, and protects all executive officers and appointees until set aside. If this proposition is sound, then it follows that the mayor may place all appointments in the non-competitive schedule and thus abolish all examinations, and no one can complain till the classification itself is attacked by some proceeding to set it aside. We are not told how or by whom this executive act, abolishing examinations, may be set aside, though mandamus or certiorari are both hinted at as remedies.
The classification in this case was made about thirteen years ago, and it is too plain for argument that mandamus will not lie to compel the mayor to change it or to make it in some other way. It is elementary law that, while mandamus will lie to compel a public officer to act who refuses to move at all, it will not lie to compel him to act in some particular way. *Page 398 An erroneous classification, once made, cannot be corrected by mandamus, so, the suggestion of any relief from such a source may be dismissed. (People ex rel. Eq. L.A. Soc. v. Chapin,103 N.Y. 635; People ex rel. Millard v. Chapin, 104 N.Y. 96;People ex rel. Demarest v. Fairchild, 67 N.Y. 334.)
It is equally clear that certiorari will not lie. That writ must be brought within four months from the time of the classification, and, therefore, the right of review in that form expired more than twelve years ago, if it ever existed. (Code, § 2125.)
But it is obvious that the right to review by means of that writ does not exist at all, and never did exist. The writ of certiorari is now governed and regulated by section twenty-one hundred and twenty, chapter sixteen, article seven, of the Code, and it is only necessary to read the statute in order to see that it has no application to the acts of the governor or mayor under the civil service law. Official acts that are executive, legislative or administrative in their nature and character were never subject to review by certiorari. That a classification made by the executive under the civil service law is such an act, and, therefore, not subject to such review, is indisputable. (Peopleex rel. Copcutt v. Board of Health, 140 N.Y. 1; People exrel. Vil. of Jamaica v. Supervisors, 131 N.Y. 468; People exrel. S.A.R.R. Co. v. Park Commissioners, 97 N.Y. 37; Peopleex rel. Corwin v. Walter, 68 N.Y. 403; People ex rel. S. U.H.R.R. Co. v. Betts, 55 N.Y. 600.)
Indeed, the decision, when followed to all its logical consequences, practically abrogates both the Constitution and the statute, since it makes the will of the executive the supreme law.
It is certainly a radically new departure in this class of actions to turn the plaintiffs out of court who, as taxpayers, are seeking to restrain the operation of official acts, conceded to be illegal, upon the theory that they should have resorted to such fanciful and impossible remedies.
The judgment should be affirmed.
BARTLETT, MARTIN and VANN, JJ., concur with HAIGHT, J., for reversal; GRAY, J., reads for modification, and ANDREWS, Ch. J., concurs; O'BRIEN, J., reads for affirmance.
Judgment reversed and complaint dismissed. *Page 399