The court having decided that chapter 186, Laws of 1898, which took effect March 31, 1898, and amended the Civil Service Law of 1883, applies to the city of New York, the rights of relator are to be considered in the light of that statute. (People ex rel.Leet v. Keller, 157 N.Y. 90; People ex rel. Fleming v.Dalton, 158 N.Y. 175.)
In cases cited we held, construing the act of 1898, that, as the new civil service regulations for the city of New York took effect March 5th, 1898, and the act of 1898 did not become a law until March 31st, 1898, the act gave ninety days in which the regulations could be approved by the state civil service commission and that they were in force in the meantime. In the case at bar we have a relator whose classification was changed from the competitive to the non-competitive list by these new regulations, but his removal did not take place until July 1st, 1898, when the time to obtain the approval of the state civil service commission had passed without securing it.
The act provides in its first section: "Such regulations herein prescribed and established, and all regulations now existing for appointment and promotion in the civil service of said city and any subsequent modification thereof shall take effect only upon the approval of the mayor of the city and of the New York civil service commission."
Under this provision the civil service rules of the city of New York of March 5th, 1898, being "regulations now existing," could only survive the first day of July, 1898, by having the approval of the mayor and the state civil service commission. I cannot agree with the suggestion in one of the prevailing opinions that it was only the existing regulations as modified that were to be approved. Such a construction is not only contrary to the plain letter of the statute, but leads to the manifest absurdity that in the city of New York all that was necessary in order to defeat the act of 1898 and continue in full force and effect the city regulations of March 5th, 1898, was to do nothing — ignore the legislative command. *Page 203
In my opinion there have been no civil service regulations in existence in the city of New York since July 1st, 1898, by reason of the failure to obtain the approval of the state civil service commission.
The result is that at the time the relator was removed the regulation that fixed his position as non-competitive had ceased to exist with the others of which it was a part.
It is this phase of the case that renders the principle laid down in Chittenden v. Wurster (152 N.Y. 345) wholly inapplicable, to the effect that an exempt classification is voidable, but not void until judicially declared erroneous.
The rules of classification in that case survived — were in full force and effect. In the case at bar the regulations and classifications thereunder had ceased to exist by legislative command.
In this situation the relator rested solely upon his constitutional rights.
The Constitution of this state provides (Art. V, § 9), among other things, that 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.
This court held (People ex rel. McClelland v. Roberts, 148 N Y at page 366), in construing these provisions of the Constitution, that if "the legislature should repeal all the statutes and regulations on the subject of appointments in the civil service the mandate of the Constitution would still remain, and would so far execute itself as to require the courts, in a proper case, to pronounce appointments made without compliance with its requirements illegal."
Invoking this principle and in view of the fact that the relator's position was unclassified after July 1st, 1898, the presumption would be, under these provisions of the Constitution, that he was entitled to a competitive examination. The presumption is in favor of the general policy of the Constitution rather than of its limitations and exceptions. *Page 204
The relator filled a position on July 1st, 1898, subject to competitive examination, and for which he had been examined, and, consequently, he was entitled to have the reasons for his removal stated in writing and an opportunity afforded him to make an explanation under the act of 1898.
The order should be reversed, with costs.
GRAY and O'BRIEN, JJ., read for affirmance; PARKER, Ch. J., MARTIN and VANN, JJ., concur in result; HAIGHT, J., concurs in second ground stated in opinion of GRAY, J.; BARTLETT, J., files dissenting memorandum.
Order affirmed, with costs.