[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 249
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 250 In obedience to a very general sentiment that appointments and promotions in the civil service should be removed as far as possible from personal and political influence, New York was the first of the states to provide by Constitution that appointments and promotions in the civil service of the state and of the civil divisions thereof should be made according to merit and fitness, and so far as practicable after competitive examination.
Section 9 of article 5 of the Constitution adopted in 1894 and which went into effect January 1st, 1895, is as follows: "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; provided however, that honorably dischaged soldiers and sailors from the army and navy of the United States in the late civil war, who are citizens and residents of this state, shall be entitled to preference in appointment and promotion, without regard to their standing on any list from which such appointment or promotion may be made. Laws shall be made to provide for the enforcement of this section." Laws have been made to provide for the enforcement of this section (The Civil Service Law, chapter 370, Laws of 1899, and the amendments and additions thereto) and rules have been adopted by the state civil service commission and by many municipal civil service commissions throughout the state. The rules prescribed by the state and municipal commissions pursuant to the provisions of said act have the force and effect of law. (The Civil Service Law, section 6.)
In the construction of such statutes and rules, and in the consideration of appointments made pursuant thereof, said section of the Constitution and the purpose of its enactment must be constantly borne in mind. *Page 252
The Constitution clearly contemplates that all appointments and all promotions shall be made according to merit and fitness to be ascertained by competitive examination unless it is in good faith found that it is impracticable so to determine the relative merit and fitness of persons for a particular position or employment. Special circumstances and acts of personal bravery and heroism have been held sufficient to justify the promotion of a patrolman without other test of merit and fitness. (People ex rel.Schelpp v. Knox, 48 App. Div. 477; People ex rel. Leary v.Knox, 166 N.Y. 444.)
In the Schelpp case the court say: "No examination can be devised which will present the conditions to furnish a test of the comparative gallantry or heroism of policemen or firemen engaged in the attempt to rescue persons from a burning building. It would be most unfortunate for the public service, however, if the Constitution and laws of the state forbade the recognition of exceptionally brave conduct under such circumstances by awarding deserved promotion to those by whom such conduct had been displayed." The legislature, by the Civil Service Law, has provided generally for an exempt class, and also for filling certain positions after a non-competitive examination. Any exception, however, to the constitutional direction that appointments and promotions must be made according to merit and fitness to be ascertained by competitive examination must be based upon the impracticability of the selection being based upon the result of such competitive examination. Apart from the fact that statutes may be made and rules may be adopted to make a practicable and workable system of appointments and promotions, the plain, general direction of the Constitution requiring that such appointments and promotions be made after a competitive examination must be obeyed. The constitutional provision must be given a fair and liberal construction and the power reserved to the legislature and to civil service commissions to make laws and rules must be exercised with a view of carrying out the purpose and intent of the Constitution. Any statute or *Page 253 rule contrary to the express language of the Constitution or to its true spirit and intent, is void and cannot be enforced, and in every case it is for the courts to determine whether a statute or rule is a valid exercise of the power to determine what employees or class of employees it is not practical to select from lists prepared after an examination or a competitive examination.
The Constitution is not only the supreme law, but the guide in the determination of every question arising in connection with the civil service appointments.
The word "transfer" is not used in the Constitution. A promotion is an advancement to a higher position, an elevation, a preferment. If the practical working of the civil service requires a transfer of one engaged therein, such transfer can only be made when it does not in fact constitute a promotion. Promotions under the name of transfers are evasions and illegal and contrary to the express terms of the Constitution.
The duties of Worstell when engaged as a bath attendant were to take care and charge of a particular bathhouse under the supervision and direction of a superintendent of public baths. The duties of a superintendent of public baths and comfort stations are to supervise and direct the work of the various bath attendants detailed to the bathhouses and comfort stations in a borough of the city of New York, and to exercise control of that work subject to the approval of the borough president. The duties of the assistant superintendent of public baths and comfort stations are substantially identical with those of the superintendent of baths and comfort stations, but subordinate to and under the immediate direction of the superintendent. The duties of the defendant McNamara before his transfer on December 29th, 1903, were that of a third grade clerk assigned to the bureau of buildings in the borough of Brooklyn, and his duties were of a clerical nature and incident to the issuing of slip permits for the alteration of buildings, and such other clerical work as was directed by superior order. *Page 254
It does not require argument or authority to substantiate or justify the statement that each of the transfers mentioned were in fact promotions both in the grade of work to be done and in the compensation to be received therefor. If appointing officers are allowed to make transfers among those in the competitive class without regard to grade, class of work or compensation, providing only that the person so transferred is upon the eligible list for the position to which he is transferred, the beneficial effects obtained by the constitutional provision will be substantially overcome. Such a transfer would enable a person hopelessly low on an eligible list for an important place in the classified service to obtain an appointment through personal or political influence or favoritism if he could once obtain an appointment to any inferior place in the service. Such transfers would demoralize the service.
The rules of the municipal civil service commission referring to promotions provide: "Except as this rule otherwise provides the conduct of an examination for promotion and the making of selections therefor from any eligible list formed as the result of such examination shall be governed by the rules relating to original appointment."
It is not claimed that the defendants Worstell and McNamara were appointed pursuant to the rules of the commission relating either to original appointments or promotions. It is unnecessary to discuss at length the provisions of the Civil Service Law or the rules of the municipal civil service commission except to say that so far as they can be given a construction that will permit of a promotion under the guise of a transfer, they are to that extent unconstitutional and void.
The judgment should be affirmed, with costs.