This petitioner, Merriweather, proved his merit and fitness for the position of assistant bathhouse keeper of the city of Buffalo by qualifying in a non-competitive examination and in December, 1930, he was appointed to that position. In April, 1934, he was removed by the Board of Health, *Page 21 solely for political considerations as he alleges, and another person of the same political affiliations as those of the members of the Board of Health was appointed in his place. His allegations relating to the cause of his removal are denied by the removing officers and, on the issue thus created, the court at Special Term made an alternative order of mandamus to enable a jury to determine the fact. The Appellate Division has unanimously affirmed the order of the Special Term. The majority of this court is now holding that the effect of this decision is to make the administration of the Civil Service Law so impractical that it could not be enforced. The answer to this doctrine is found in the following statement by this court inPeople ex rel. Somerville v. Williams (217 N.Y. 40, 44): "It is also argued that to permit one who is removed for political reasons to seek reinstatement would result in mischief. It seems to us that the mischief results from the violation of the statute, not from compelling reinstatement in cases where removal is made in violation of law."
A jury might not credit petitioner's allegations, but the proposition seems plain that the provisions of section 25 of the Civil Service Law confer the right, in the event that the alleged facts are proved, to reinstatement by mandamus. If the argument of the removing officers is correct, the statute does not prevent them from summoning any of their subordinates to their presence, assuring him that he is honest and efficient, expressing fulsome sympathy for him and his family, informing him that, to their sincere regret, he is a member of an opposing political party or faction, that, solely for political considerations, they are constrained to remove him and to appoint one of their own political supporters in his place, and the law affords no redress to the subordinate thus illegally removed. This argument is in complete conflict with the principle of this court's unanimous decision in People ex rel. Somerville v. Williams (supra). *Page 22
Section 25 provides: "No recommendation or question under the authority of this chapter shall relate to the political opinions or affiliations of any person whatever; and no appointment or selection to or removal from an office or employment within thescope of the rules established as aforesaid, shall be in any manner affected or influenced by such opinions or affiliations." This petitioner's position is in the non-competitive class of the classified civil service and, like positions in the competitive class, is within the scope of the rules established by the Civil Service Law. Offices in the unclassified service and offices and positions in the exempt class of the classified service are not within the scope of these rules and the effect of section 25 upon them does not immediately require actual decision. Two decisions in the lower courts, People ex rel. Gallup v. Williams (139 App. Div. 355), and People ex rel. Garvey v. Prendergast (148 App. Div. 129) dealt with political removals. In the Gallup case the Appellate Division in interpreting section 25 held that the State Comptroller "has power to remove an employee in his office for any cause other than political considerations" and that mandamus will lie to test the issue of fact whether the removal was based upon political considerations. In the Garvey case the Appellate Division in another department decided that mandamus will not lie. In the Somerville case, while the relator occupied a position in the competitive class, we accepted the rule in the Gallup case and rejected the one announced in the Garvey case. The ruling which this court made in reference to political removals of employees in the competitive class controls appointment to and removal from employment in the non-competitive class, for both classes are within the scope of the rules established in pursuance of the Civil Service Law.
The principle enforced in our decision in People ex rel.Somerville v. Williams (supra) is decisive on the two elements presented in the case now before us: (1) The *Page 23 statute is not merely directory but is mandatory, and (2) mandamus to compel reinstatement is the appropriate remedy. That this legislation amounts to something more than a gentle suggestion and a benevolent admonition to depart from the practice described by the "semi-barbarous maxim that `to the victors belong the spoils'" (Rogers v. Common Council ofBuffalo, 123 N.Y. 173, 177), is directly decided in theSomerville case. Even in the absence of this controlling precedent, the intention seems manifest. Section 25 is a peremptory command to refrain from indulgence in conduct which has long since been abandoned by nearly all civilized governments, and it necessarily confers the appropriate remedy to redress the legal wrong. Few reported cases are involved in less doubt than our decision in the Somerville case on the effect of section 25 over positions within the scope of the civil service rules. A unanimous court concurred in this language: "This section of the statute expressly prohibits those having the power of removal from exercising that power so as to remove from office or employment any person on account of his political opinions or affiliations. When he is removed from his office or employment upon this ground he may seek reinstatement by a writ of mandamus. * * * Mandamus is the only remedy by which the relator may be reinstated in his office or employment, and in our opinion it is the appropriate remedy to invoke in a case of this character. * * * Section 25 prescribes a rule binding upon public officials, and where one is removed from his office or employment in violation of its provisions, we think it is clear that the Legislature intended that the same remedy should be available to him that is accorded to other employees in the civil service who are removed in violation of law. The courts have frequently compelled reinstatement by means of mandamus where removals in violation of law have been made, even though the statutes prohibiting such removals did not specifically authorize reinstatement by mandamus. *Page 24 * * * The provisions of section 25 are not merely advisory or directory; they are mandatory and were intended to be observed, and where these provisions are disregarded and one who is employed in the civil service is removed, he is entitled to reinstatement" (pp. 42, 43, 44). This explicit language of the opinion is not limited to political removals from the competitive class. It is applicable by its strict terms to "any person" and it refers not only to employments, which include positions in the non-competitive class, but also to offices. Perhaps the range of that decision might not be held to be so broad as to include high appointive officers, for such officials usually are appointed by reason of the political and economic doctrines which they hold. As to them their conception of fundamental theories of government rather than efficiency in the subordinate details of routine administration are considerations which may properly appeal to the appointing power. The statutory refusal to fetter the exempt class by rules and regulations might perhaps be taken as an indication of a legislative intent to vest heads of departments with a discretion, even amounting, perhaps, to a discretion in the partisan political sense, over the appointment and removal of deputies and other confidential assistants whose conception of government similar to those of their superiors, may promote harmonious and efficient administration. However, the opinions in the Somerville and Gallup cases contain the strongest judicial intimation short of an actual decision that the statute applies to all subordinates in the public service. Whatever may be the legislative intent respecting officers and employees in the exempt class, the language of section 25, as interpreted by this court in the Somerville case, leaves no room for reasonable doubt that it expressly forbids that appointment to or removal from positions within the scope of the rules establishedpursuant to the Civil Service Law shall be affected or influenced by political opinions or affiliations. In most enlightened *Page 25 communities, opinion is directed toward the view that public employment of a purely administrative or ministerial character bears no legitimate relation to party service, and doubtless section 25 represents the legislative response to this intelligent sentiment. This petitioner, whose position is within the scope of the civil service rules, to the same extent as was Somerville, is plainly entitled, it seems to me, to his day in court to prove, if he can, that his removal was made in contravention of law. If counsels of expediency are to prevail, such doctrine ought logically to be extended to all other claims which may be presented to the courts in large numbers. The fact that the courts are flooded with a great volume of litigation in relation to taxes, negligence and many other forms of action has never been regarded as a reason for excluding those who may be able to prove valid claims and for depriving them of all remedy.
LEHMAN, CROUCH and LOUGHRAN, JJ., concur with HUBBS, J.; O'BRIEN, J., dissents in opinion, in which CRANE, Ch. J., and FINCH, J., concur.
Orders reversed, etc. (See 268 N.Y. 632.) *Page 26