In People ex rel. Killeen v. Angle (109 N.Y. 564) the question was presented whether a statute which provided for civil service examinations for the appointment to all State offices applied to the Superintendent of Public Works who was, by section 3 of article 5 of the Constitution of 1846, as amended in 1876, given the power to select and appoint his subordinates. It was there held that the right given to the Superintendent of Public Works by the Constitution was exclusive and could not be conditioned by any statute providing for the determination by a State Civil Service Commission of qualifications for appointment. Chief Judge Huger, in writing for a unanimous court, says (p. 570): “ It was plainly intended thereby to leave to the superintendent exclusively the determination of the propriety of such appointments, and the sufficiency of the qualifications possessed by proposed appointees, and to hold him responsible for the faithful exercise of his intelligence, judgment and discretion in the performance of that duty. The broad grant of power excludes the idea that it was intended that he should be hampered, restricted or regulated in its exercise by any extraneous authority whatever, except such as might be authorized by other, constitutional limitations expressly applicable thereto. When this amendment was adopted, the People had plainly before them the question of the mode thereafter to be pursued in appointing subordinate officers of the canals, and they decided to confide their selection to the superin*128tendent, and trust to his judgment for the faithful performance of that duty. This decision cannot now be reversed or disregarded without overthrowing the fundamental law, although it may be thought that a better method of performing such duties has since been discovered. Any provision of law, therefore, which materially interferes with the freedom of selection conferred upon the super- ' intendent, and the exercise of his judgment in investigating and determining the fitness and propriety of contemplated appointments, seems to us not only to conflict with the terms of the Constitution, but plainly to violate its spirit and intent.”
After this decision the Constitution was amended in 1894 requiring that appointments and promotions in the civil service of the State and of all the civil divisions thereof, including cities and villages, should be made according to merit and fitness, to be ascer- ' tained- so far as practicable by examinations which, so far as practicable, should be competitive; and it was further provided that laws should be made to provide for the enforcement of this section. (Const, art. 5, § 9.) In People ex rel. McClelland v. Roberts (148 N.Y. 360) it was held that this provision of the Constitution should be read in connection with the provision (Art. 5, § 3) giving the power to the Superintendent of Public Works to appoint -his subordinates, and that inasmuch as a-State civil service board existed to determine the qualifications of appointees the Superintendent of ■Public Works was required to appoint from among the. three candidates certified by the civil service board.
By section 2 of article 10 of the Constitution it is provided: “ All city, town and village officers, whose election or appointment is not provided for by this Constitution, shall be elected by the electors of such cities, towns and villages, or of some division thereof, or appointed by such authorities thereof, as the Legislature shall designate for that purpose.” ■ This provision of -the Constitution was continued in the Constitution of 1894, but there Was rio statute existing which provided for examinations for village officers, and it was, therefore, held that until the Legislature should make'proper provision therefor the constitutional provision as to villages was inoperative. Chittenden v. Wurster, 152 N.Y. 345.) This defect the Legislature sought to remedy by providing that, the State Civil Service Commissioners could, with the consent of the Governor, extend *129their jurisdiction to villages, and thereupon that appointments could only be made by local officers in a village from candidates examined and certified by the State Civil Service Commission.
The question hire presented is whether this statute is effective to remedy the defect pointed out in Chittenden v. Wurster (supra).
It would seem that the constitutional power given to local authorities to appoint local officer's was just as broad as the power originally given in the Constitution to the Superintendent of Public Works, to appoint his subordinates. If so, within the reasoning of People ex rel. Killeen v. Angle, any provision of law which materially interferes with the freedom of the local officers in the exercise of their judgment “ in investigating and determining the fitness and propriety of contemplated appointments” would be in conflict with the Constitution and violate its spirit and intent. .
In the case at bar by the order appealed from this commissioner is required to appoint a man without any determination by the commissioner, or by any local body, of his qualifications for office, and in fact in face of the determination by the-only local officer who has aught to sa-y in the appointment that the relator is not qualified for the place.
It is not questioned if the statute required the qualifications for the office to be determined by a local board that Mi'. Gaffney, as sewer, water and street commissioner, would be required to make the appointment, and the civil service provision of the Constitution would be made effective as to villages. The vice of the statute is that the determination of the qualifications of the applicant is to be made not by a local board but by the (State board. While the home rule provision of the Constitution must be read with the civil service provision, the home rule provision will not be unnecessarily limited.. If the civil service provision of the Constitution may be made effective and still preserve to the localities not only the bare power of designation but the-fullness of power implied in the right of appointment as interpreted in People ex rel. Killeen v. Angle, that method should be.required. It can be made so effective and- the full force of the home rule provision retained by providing for the determination of the qualifications of candidates by a local civil' service board as is provided in all cities. The statute, therefore, *130providing for the determination of the qualifications of applicants for local village offices by the State. Civil Service Commission is unconstitutional because it unnecessarily restricts the power of local appointment given by the Constitution. In the case of People ex rel. Weintz v. Burch (79 App. Div. 156) the qualifications of the appointees were determined by a local board and the appointment was thereupon required by the local body. It lias never been held that á local officer with the power of appointment may be conditioned by the determination of. the qualifications of the appointee by any other than a local-board.
In People ex rel. Balcom v. Mosher (163 N.Y. 32) the question considered was a question rather of constitutional construction than of constitutional invasion. It was there held that the home rule clause of the Constitution when read in connection with the. civil service clause of the Constitution left with the appointing local authorities some power of selection, even though the determination of the qualifications for office were made by a local municipal board as it was in that case. It, therefore, held that the statute requiring a local officer to appoint the one standing highest on the list was a violation of the Constitution as thus construed. That case was decided by a bare majority, and the opinion when read in connection with the question there decided in my judgment should not be construed as holding that a'State Civil Service Commission may limit the power of appointment of a local officer by determining the qualifications of the appointees and requiring the local officer to appoint even from three candidates named by them. Until, therefore, the statute shall provide for competitive examination by local boards of applicants for .local offices within the several counties, towns and villages of the State the determination of the qualifications of applicants for offices within those localities must be made by the officers in whom the power of appointment is placed by the.statute.
The order should, therefore, be reversed.
Sewell, J., concurred.
Order affirmed, with costs.