1 am unable to concur either in the reasoning or result of Mr, Justice Putnam’s and Mr. Justice. Landon’s opinions.
Section 9 of article 5 of the Constitution provides that appointments in the civil service of the State, and in the different subdivisions thereof, shall be made according to merit and fitness, to be ascertained as far as practicable by competitive examinations; and it further provides “that honorably discharged 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.”
The Court of Appeals has held that it is “clear that this section of the Constitution, read according to its letter and spirit, contemplates that in all examinations, competitive and noncompetitive, the veterans of the civil war have no preference over other citizens of the State, but when, as the result of those examinations, a list is made up from which appointments and promotions can be made, consisting of those whose merit and fitness have been duly ascertained, then the veteran is entitled to preference, without regard to his standing on that list.” (Matter of Keymer, 148 N. Y. 219, 225.)
Prior to the adoption of this provision of the Constitution, various laws had been passed providing for preference to veterans. Uone of these laws, however, prevented veterans who had once *359been appointed from being summarily removed; to remedy that defect in the law the then existing statute (Laws of 1884, chap. 312) was amended by chapter 716 of the Laws of 1894, which provided that removals could not be made except for incompetency and conduct inconsistent with the position held by the employee or appointee. It was held, however, that, under this law, it was left to the appointing power to determine whether the facts existed which authorized a removal, subject to responsibility for any willful or perverse action; and that no notice or opportunity to be heard Avas required to be given to the person whose removal was contemplated before the power could be exercised. (People ex rel. Fonda v. Morton 148 N. Y. 156.)
To remedy the defect in the statute which was revealed by the decision of the case of People ex rel. Fonda v. Morton, the statute in relation to veterans was further amended by chapter 831 of the Laws bf 1896, which provided that no veteran holding a position by appointment or employment in the State of New York, or in any of the subdivisions thereof, should be removed from such position or employment, “except for incompetency or misconduct shown, after a hearing, upon due notice, upon the charge made.”
At the time the relator was removed from office the Constitution provided that veterans who had passed a civil service examination should be given a preference in employment or appointment, and the statute provided that one holding a position by employment or appointment could not be removed, except upon charges, and after notice of such charges and opportunity to be heard thereon.
It is to be presumed that the framers of the Constitution and the people who adopted it were in earnest in including this provision in reference to veterans of the late civil war, and intended that it should be complied with, and it is presumed that a like intent moved the Legislature in the passage of a statute which requires notice and an opportunity to be heard before such a person shall be removed from his employment or appointment; that neither the constitutional or statutory provisions were intended to be mere empty sentiments, sounding in patriotism and gratitude, but meaning nothing, but were intended to enforce a practical and substantial recognition of the loyal services of those who preserved the government from destruction; and both the Constitution and the statute should be interpreted and construed to effectuate that, intent.
Neither the officers whose duty it is to execute the laws, nor *360the courts whose duty it is to interpret them, should be astute to discover ways and means whereby the letter of the Constitution and the statute may be observed, but the spirit violated, and any statute in conflict with the Constitution, in spirit or in its results, should be disregarded as void, and any construction of a statute which enables the spirit of the Constitution or a statute to be evaded, should be frowned upon and rejected.
The reason given by the defendant for not giving the relator notice, is that he was never appointed. Having passed his competitive examination, it was the defendant’s duty, under the Constitution, to appoint him; the appointment he did give him will be presumed to have been made pursuant to the Constitution, and holding a position by virtue of such appointment he can only be removed therefrom pursuant to the statute, and the defendant cannot be permitted to assert his disobedience of the Constitution as a reason why he is not bound by the requirements of the statute.
The preference given by the Constitution is an absolute preference to employment or appointment — an absolute appointment or employment, not a conditional or probationary one.
The only limitation is that the veteran shall have passed a competitive examination for merit and fitness; that is the only examination, the only test required. The Legislature has no power to add to that requirement of the Constitution, and having complied with it the veteran is entitled to be employed or appointed.
Chapter 821 of the Laws of 1896 provides for the manner of revoking or terminating such appointment or employment.
The result of his civil service examination has presumptively shown his merit and fitness, and secured him his employment or appointment; and before he can be removed it must be by his own misconduct, or by showing by actual demonstration that the result of his examination was incorrect or misleading, and that he is, in truth, unfit and incompetent, and upon those questions he is entitled to be heard.
If the practice indulged in in this case is to bé upheld, then the appointment of a veteran who has passed his civil service examination can be prevented, and no preference, in fact, given to him; or, if it is held that he has had his preference under the Constitution by this probationary appointment, then he has been removed from the position he acquired by virtue of the provisions *361of the Constitution, without notice and without a hearing, as the statute' provides, and thus a way is pointed out by which a veteran can be removed from the civil service list without receiving any appointment.
If the probationary appointment, so-called, is not a final appointment which entitles the person appointed to hold his position unless removed upon charges, in the manner pointed out by the statute, then such final appointment is not an appointment made according to merit and fitness ascertained by competitive examinations, as the Constitution requires, but is one resulting from his conduct during his probationary term, such conduct being a sort of examination, necessarily non-competitive, and, therefore, not in accordance with the Constitution. Then, too, this latter examination is made and the result passed upon by the appointing officer.
The Court of Appeals, in answer to the argument that in counties, towns and villages where no examiners have been provided, or provisions made for carrying the Constitution into effect, each officer having appointments to make could himself examine the applicants for positions, and'in that way determine who should be appointees by a competitive examination, said: “ Undoubtedly, but it will readily be seen that this system would practically nullify the Civil Service Law and bring it into disrepute.” (Chittenden v. Wurster, 152 N. Y. 845, 356.)
How much more will it tend to nullify and bring the law into disrepute where the appointing officer is conducting an examination which is non-competitive and of the result of which he is the sole and only judge, and where, upon charges of incompetency and unfitness, he is at once the accuser, witness and judge, and where the result is open to the suspicion, at least, that it is a mere arbitrary determination of the appointing officer that he does not want to employ or appoint the man in question. An interpretation that will practically nullify or bring a law into disrepute is to be avoided.
It is claimed, however, that the relator, by accepting the appointment tendered him, waived his right, if he had any, to an absolute appointment, because it is said that any statutory or even constitutional right can be waived.
I do not think that contention can prevail.
A waiver, to be effectual, must be intentional; must be made with full knowledge of the rights waived and with full knowledge *362that such rights are being waived. And no element of coercion must enter into it; if the last is present, and either or both of the others are absent, the waiver is not effectual.
There are cases where the acts of the parties, although without knowledge of their rights, will in law constitute a waiver, as when the law makes such acts a waiver, or when the other party will be, or has been, placed in a disadvantageous position through such action. But the general rule as to waiver is as I have stated.
There can be no claim here that this case comes within any of the exceptions to the general rule.
There can be no pretense here that the relator intended to waive any of his rights under the Constitution or the statute, or that he knew he was doing so.
Can we say that the relator knew the full measure of his rights and knew what he was waiving? This court has been embarrassed in determining what they are. How can we say that he knew and waived them? Can we say that the element of coercion was lacking here?
The applicant for employment is not upon an equal footing with the employer; he is seeking position or employment; he recognizes that he is largely at the mercy of the one appointing or employing, and that a refusal to take what is tendered may, and probably will, result in depriving him of any employment or position.
What could the relator do in this case but accept what was offered to him, go to work and rely upon the law afterwards to protect him in the full measure of his rights.
To recapitulate, the naked facts of the case are, that the relator, an honorably discharged soldier, who served as such during the war of the rebellion, passed a competitive examination; that as a result of such examination he received an appointment in the civil service of the State; call it whatever kind of appointment you please, it was an appointment, and pursuant to it he held a salaried position in the State service. The statute (§1, chap. 821, Laws of 1896) provides that no such person “ holding a position by appointment or employment in the State of New York * * * shall be removed from such position or employment, except for incompetency or misconduct shown, after a hearing upon due notice,” etc. He was removed from that position because of alleged incompetency without notice and without a hearing. It is claimed that he was not removed, but that the *363appointing officer declined to give him a permanent appointment because oí his incompetency, the language of the officer bein¿ “ that your efficiency and capacity for the work required * * * have not been found satisfactory. * * * Your employment by this department will cease on the 23d day of December, 1896.”
Call it by what name you please; a refusal to make a perma nent appointment or a cessation of employment, the fact remains that the relator was deprived of the employment he was engaged in under the State for alleged incompetency, without notice or opportunity to be heard.
The result seems to me not simply an evasive but a plain, palpable violation of the statute, and nullification of the spirit and intent of the Constitution.
The order should be reversed and the application of the relator granted.
Order affirmed, with ten dollars costs and disbursements.
A motion having been made for a reargument of this case, the following opinion was written.
Per Curiam :In one of the opinions delivered in this case it was said that “ The relator was not removed from any position He was properly and legally appointed to the position of special agent for three months, and, at the expiration of his term, the State Commissioner of Excise declined to make an absolute appointment. * * * We are of opinion that the relator has not been removed from a position or employment Avithin the meaning of chapter 821, Laws of 1896, and, hence, that the order should be affirmed, with costs.” The above quotation shows wha> was intended to be decided.
In the opinion referred to, treating this proceeding as an appli . cation of the relator to compel his absolute appointment by the defendant as a special agent of the excise department of the State, and not one to reinstate him in an office that had expired, it was suggested that, in a proceeding by mandamus under the provisions of chapter 821, Laws of 1896, the question of the business capacity of the relator could be tried and determined. This suggestion, however, was not considered by the court, and must be regarded merely as an opinion of the justice who delivered the opinion.
*364What this court determined was, that “ the only appointment which the relator received was a probationary one of three months. As that expired b'y its own limitation, he was not removed from office, and, therefore, cannot invoke chapter 821, Laws of 1896, which secures him from arbitrary removal during the term for which he was appointed.”
The motion should be denied, but, under the circumstances, without costs.
All concurred, except Putnam and Herrick, JJ., dissenting.