People ex rel. Schau v. Whittet

Hiscock, J.:

The relator desires to be a battalion chief in the fire department of the city of Buffalo. There stands between him and an authorized appointment a provisión of the civil service regulations applicable to the city of Buffalo that such appointment shall be subject to competitive examination, and he is seeking by this proceeding to have such provision reviewed and declared invalid.

While there are other questions somewhat difficult of solution and especially involving the- right of relator to maintain this proceeding, the important, substantial one presented to us is whether the decision of the municipal civil service commission of the city of Buffalo, approved by the Civil Service Commission of vthe State, to place the position of battalion chief in the competitive class of' the civil service, is reasonable and right, or' whether it is so unreasonable, impracticable and improper that wfe ought to - reverse it1 and eliminate this requirement. .

A statement somewhat at length of the material and undisputed facts appearing to us,by the various -returns will be needful in order to afford an intelligent appreciation of the reasons which lead us to the conclusion that it is our duty to follow the latter course;

The department of fire in Buffalo is under the general supervision and control of the board of fire. commissioners which consists of three members appointed by the mayor. The practical officers of the department in. order of rank are a chief and assistant chief engineer, battalion chiefs, captains and lieutenants. At the time involved there was provision for eight battalion chiefs, each one of whom had charge of one of the eight districts into which the city was divided for fire purposes, subject, of course, to the general supervision and authority of his superiors, and in their absence each was in supreme command and control of his particular district. He was expected to be upon duty constantly, except for special causes calling or permitting him to go elsewhere, and to attend all fires at stations assigned to him. 'Unless and until a superior assumed it, he took command at a fire, directing the movements of officers and men. Upon him was devolved the duty of inspection over all companies and apparatus situated within his district, and he was responsible for the proper condition thereof. The responsibility was placed upon Mm to not unnecessarily jeopardize the lives of men under his command, and of enforcing proper discipline upon their part, He had authority to detail men for special duty at theatres and places of amusements, and to see that all laws and ordinances were enforced for protection from fires. He also had the right to order the arrest of any person who should disobey his orders, or who should become disorderly at a fire. He even had the right,, if in command at a fire, in concurrence with the mayor or a fire commissioner, to direct a building to be torn down, and also the right to enter premises for the purpose of ascertaining whether there was any violation of ordinances for the prevention of fire. In the absence of the chief engineer and the assistant chief engineer it was obligatory upon the board of fire commissioners to designate a battalion chief to act as the chief executive officer of the department, with full authority in the premises. There were, of course, very many minor duties and powers incidental to these larger ones which it is not necessary to mention.

Under the provisions of the Constitution (Art. 5, § 9) the Civil Service Law (Laws of 1899, chap. 370, § 11) has- defined four classes of positions and appomiments in the classified service of cities, namely, the exempt class, the competitive class, the noncompetitive class and the labor class in cities. . Manifestly the last does not include the position in question. (Civil Service Law, § 17.) Heither, we think, does the first one. (Id. § 12.) The relator contends that the position of battalion chief is that of a deputy, and also that it carries confidential and fiduciary relations so that for-these reasons it should be exempt from examination. This view, however, does not commend itself to our judgment. '

The. statute (§ 13) declares thatthe competitive class shall include all positions- for which it is practicable to determine the merit and fitness- of applicants by competitive examination and shall include all positions now existing or hereafter created, of whatever functions, designations or compensation,-in each and every branch of the classified service, except such positions as are in the exempt class, the non-competitive Class or the labor class.” Section 16 of the statute provides as, follows: “ The non-competitive class shall include such positions as aré not in the exempt class or the labor class and.which it is impracticable to include in the competitive class. Appointments to positions in the non-competitive class shall be made after such non-competitive examination as is prescribed by the rules.”

. Since 1899 it has been.the rule, in Buffalo that the position of battalion chief should be filled only upon and after a competitive examination. The position of chief and' assistant chief engineer have been:-exempt from such examination, but all of the other positions in the active service heretofore referred to and in addition the positions of first grade and second grade firemen have been subject thereto. In addition there has been adequate provision for promotion through the service,, the chief being promoted from assistant or battalion chief; the assistant chief from battalion chiefs and battalion chiefs from captains and so on through the list.

While this position has thus been subject to competitive examination, it does not appear that any vacancy has arisen within the period mentioned which has been filled by this method. Therefore, in deciding whether competitive examination is feasible as a means of selecting appointees, we cannot have for our guidance the benefit of actual éxperience. We must test the. element of jjracticability which by the. statute is made an essential condition to the imposition of competitive examinations, by the character-of the position and of the duties and obligations attached thereto.

The more carefully we do this the more insistently is forced upon our mind the conviction that high marks upon any examination which could be devised would be an unsatisfactory and uncertain way by which to decide who would be the best man to occupy one of these places. . It would he conceded by any reasonable person at once," of course, that a man about to be called upon to discharge the duties which we have enumerated ought not to be selected by reason of superiority in an examination upon merely scholastic attainments. But if another course should be pursued upon the examination, and one should be formulated which followed as nearly as might be the practical lines of work to be performed, we apprehend that surpassing excellence even then would not be a safe test for appointment. There cannot be any doubt that a safe and efficient battalion chief must possess industry, energy, endurance; vigilance and bravery, the power of commanding and controlling men, a high degree of executive ability and rapid and cool judgment under exciting and disturbing conditions.

These qualifications were carefully and forcibly summarized in the communication addressed by the Buffalo civil service commission to the State Civil Service Commission favoring the withdrawal of this position from the competitive class, as follows: “ He (a battalion chief) must have the power to command and to enforce discipline. He must possess good judgment of human nature, coupled with tact, to enable him to deal with men under him. He must possess a sense of justice and fairness so as to gain and retain the respect and confidence of his subordinates. He must have initiative ability, resource in emergency, quick judgment, courage and energy.”

If we should assume that the wisdom of an examining board could devise a series of questions calculated, so far as mere questions could, to disclose who of several candidates possessed in the highest degi'ee these and other kindred and essential attributes of mind and body, we should still feel that such result was not very valuable. It at least would be an even chance that in the quiet of an examination room a candidate might excel in a disquisition upon the proper manner of discharging these duties, who, when subjected to the test of actual practice in the midst of disquieting surroundings and under the strain of oppressive responsibility would utterly fail. "We do not believe that it is possible by a theoretical examination to adequately or accurately weigh or measure the larger possession by one candidate than another of the mental and physical characteristics which are manifestly indispensable to a successful discharge of the duties and powers devolved upon this position. Such traits seem too intangible to be gouged in such a manner. A more reliable demonstration of their possession by a candidate . ought to be furnished by experience, and the right should be reserved' to the appointing power of freely utilizing the laiówledge and judgment derived1 from study of such experience.'

Our judgment upon this subject is confirmed and sustained by the attitude of the. officials of" the city of Buffalo. After this position was put in the competitive class the civil service commission of the city endeavored to formulate and frame an examination through and by which to provide for the necessary competition. The members were unable to do so, and no satisfactory series of questions'and form of examination has.yet been prepared. The board of fire commissioners, chief of the department, the mayor, and a majority of the civil service commission itself, reached the conclusion that the requirement for a competitive examination should be removed, and llave attempted to secure this result, but the State Civil Service Commission has opposed their efforts. There is no suggestion that the former officials are lacking in desire for a fair and practical system of civil service, or that they have any wish but for an efficient fire department which shall be governed by promotion and merit father than by any extraneous or unworthy considerations, and the' views and action of such men seem to us to be a somewhat impressive practical argument against existing conditions.

It is true that we are cited by the learned counsel to cases of cities where positions similar to this one in fire departments are said to be filled upon competitive éxaminations. We are, however, not supplied with information as to the details of these appointments or of the conditions under which'they were made or of the success or. failure which has attended this method of making them. Under such circumstances, while certainly they may properly be called to our attention as an argument, we cannot regard them as authorities compelling us to an adjudication which we do not regard as wise Upon the facts appearing before us in this case.

It is also urged that if this position is exempted from competitive examination, that of captain may also be. We are, of course, neither called upon nor permitted .to pass upon that question at this time. It is sufficient to say that our decision upon the position of battalion chief does not necessarily carry with it a similar decision upon some other position. It very often happens that, in a line of cases involving some similar features but in differing degrees, part will be upon one side and part upon the other of a dividing principle. There is no position in the fire department of Buffalo which does not involve in some degree the requirements of mental and physical capacity which may not easily be made the subject of a competitive examination. In some of these position's, however, such elements may be of such a percentage that a satisfactory competitive examination may be devised which would not be of practical application to another position involving in a much higher degree such characteristics and abilities.

We have discussed the advisability and practicability of a competitive examination as applied to this class of positions and have reached a conclusion adverse to it. We see no reason, however, why such a position should not be made subject to a rigid qualifying examination and all of the desirable and commendable qualifications ■of promotion in the service be preserved. Nothing can be a more effective inducement to valuable service in such a department than the guaranty of promotion based upon merit, and we perceive no cause why the position of battalion chief should not be made upon promotion and also be placed in the non-competitive class and made subject to a qualifying examination which might be an aid in determining the comparative fitness of rival candidates.

We next pass to the decision of the questions already briefly suggested, whether, first, the relator has an interest in the subject-matter of this controversy sufficient to enable him to maintain this proceeding, and whether, second, if he has, liis proceedings have •been instituted within the time fixed by the statute. While, perhaps, the answer to these questions is not entirely clear, we nevertheless think that it may be given in favor of relator.

The relator for several years prior to July 11, 1904, was a member of the Buffalo fire department, having been promoted at that date through various positions to the rank of captain. Upon éaid date he was appointed to the position of battalion chief. The municipal civil service commission of the city of Buffalo ‘have refused to certify his pay as such officer upon .the ground that he had not taken a competitive examination and had his name placed upon the eligible list for the position of battalion chief and he is unable to collect his pay. It is urged that all of these facts give him no such legal interest in the question whether a competitive examination should be required as entitles him to seek a revocation of such requirement, but that the appointing power is the only party injured by such requirement if invalid and is the only one to bring this proceeding to review the same.

"We agree with the contention made in behalf of defendants that the appointment of relator as battalion chief was invalid.' It was in violation of the rules and regulations prescribed by the civil service commissions and then in force. It was not in accordance with the conclusiono reached by us now that, while said position was not properly classified in the competitive class, it still may be properly put in the non-competitive class. For the purposes of this proceeding and the consideration of the immediate question under discussion we shall treat the appointment as entirely invalid and the position as vacant. Doing this we have a vacancy in the position of battalion chief which under the rules must be filled by the promotion of one of the captains of the department. Relator, treating his promotion as invalid, is a captain and, therefore, one of the limited class eligible for appointment. He is in good faith a candidate for appointment. While the attempted appointment by the board of fire commissioners must be treated as ineffectual, it still may be regarded as indicating a desire and intention upon the part of the appointing power to appoint relator to the vacancy. There stands in his way as an un just and improper barrier the requirement for a competitive examination. It is true that if subjected to. that improper test he might succeed and if relieved from it he might still fail, nevertheless, we think that he has a practical interest which amounts to a legal right to have removed any extra and improper obstacle to his attempt to procure the • appointment in question, and for that reason has the right to maintain this proceeding to review the decision of the civil service commissioners in the respect indicated. (Chittenden v. Wurster, 152 N. Y. 345, 363.)

As bearing upon the second proposition, that these proceedings have not been instituted in time, section 2125 of the Code of Civil Procedure provides: “ Subject to the provisions of the next section, a writ of certiorari to review a determination must be granted and served, within four calendar months after the determination to be reviewed becomes final and binding upon the relator, or the person whom he represents, either in law or in fact.”

The position sought by relator was originally placed in the compétitive class in 1899, and thereafter remained therein. This writ was not issued until August 15, 1904. January 15, 1904, the fire commissioners of the city of Buffalo requested the municipal civil service commission to amend the rules and classification só as to place the position of battalion chief in the exempt class, and thereafter said civil service commission took up the subject with the State Civil Service Commission, recommending that said position be placed in the non-competitive class. In June, 1904, the State Civil Service Commission decided not to approve the recommendation, and thereafter and on July 11, 1904, the municipal civil service commission adopted certain amendments to the rule covering this subject, thereby, in effect, following the decision of the State Civil Service Commission and reaffirming the rule in question which provided for competitive examinations. Thereafter, as required by law (Civil Service Law, § 10, as amd. by Laws of 1900, chap. 675), the amended rule containing the provision for competitive examination was submitted to the mayor of the city of Buffalo for his approval, and the same was approved by him and thereafter submitted to the State Civil Service Commission for its approval, and was thereafter duly approved by it and returned to-the commission with the certificate of its approval duly attached, “ Whereby .(as stated in the return of the Buffalo Civil Service Commission in this proceeding) said amended rule and classification became and is of full force and effect.”

Relator was at this time a candidate for appointment and this determination became final and binding upon him as such candidate. We think that all of the proceedings which took place in connection with the proposed revision of this rule resulted in what was tantamount to a decision to continue the competitive examination and to a readoption of the rule relating thereto, and that relator, who, so far as it appears, at this time by reason of his candidacy first became interested in and bound by the decision, had a right within four months after July 11, 1904, to institute this proceeding. If this view is correct he has moved within the prescribed time.

The writ should be sustained and the proceedings of the defend-, ants placing the position of battalion chief in the competitive class of the civil service reversed and annulled, with costs, without prejudice, however, to the right to reclassify the said position in the noncompetitive class. . '

All concurred, except Stover, J., who dissented in an opinion in which Williams, J., concurred.