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N. Y. Rep.]

Dissenting opinion, per O'BRIEN, J.

known, to be in fact impracticable, and, while that question may be decided by the appointing power in the first instance, yet in all cases of dispute, it must be decided by the courts.

The fatal weakness in the argument of the learned corporation counsel is found in the assumption that not only all assignments made by the mayor to the non-competitive schedule prior to the adoption of the Constitution on January 1, 1895, remained in force, but that after that date he had the power to continue to make such assignments, with or without reason, and without regard to the question whether examinations were practicable or not. In other words, the claim is made that the dispensing power has not been affected by the Constitution. This position is plainly untenable. Every assignment to that schedule made before the Constitution took effect, in which it was practicable to fill the place by competitive examination, has been abrogated, and every assignment of a like character since made is void since they are in conflict with the Constitution.

When the appointments were made they were all by force of the Constitution in the competitive schedule, which in fact and in terms covered every one of the places, and the appointees should have been selected from the eligible list.

The question whether the Constitution is self-executing is not a practical one in this case. The question is whether, by its own force and by force of all the civil service laws and regulations which are behind it and are preserved by it, these eleven appointments should not have been made from the eligible list. The Constitution found and left a complete system of statute law in force which was ample to enable every appointing officer to execute its mandate, and it extended the civil service principle to all the civil divisions of the state, including villages. It is said that since counties and villages have no adequate means of putting the constitutional provision in force, it cannot be self-executing, but must await legislation.

This is undoubtedly the most favorable situation that can be selected to enforce the argument that the Constitution is

Dissenting opinion, per O'BRIEN, J.

[Vol. 152.

dependent upon legislation. It has been said that a constitutional provision is self-executing if it supplies a sufficient rule, by means of which the right given may be enjoyed and protected or the duty imposed may be enforced. (Cooley's Const. Lim. 100.)

While we are not concerned in this case with appointments in villages or counties, it would not be difficult to show that there is not a village or county in the state in which the mandate of the Constitution cannot be complied with to-day without further legislation. It is only necessary that the appointing authority should be in harmony with the law and absolutely bound to obey it and respect his official oath. If he is zealous to comply with the Constitution all difficulties will immediately vanish. Let him but announce to the public that he will make no appointments to office except according to merit and fitness, to be ascertained by competitive examinations, and he will not fail to find candidates at hand who have complied with the test. The state civil service examinations are held periodically in every locality of the state, and from that source he can obtain an abundant supply of qualified candidates for every place that he may desire to fill. It is not necessary in order to put the mandate of the Constitution into immediate operation to wait until a village or a county civil service board is organized by the legislature. All the Constitution requires is that there shall be an honest, open, competitive examination, and the state can furnish that even to candidates in the particular county better than any local authority.

A village or county civil service board would be likely to be or become a weak, inefficient thing, while the state has every facility for placing at the door of the appointing officer all the machinery necessary to enable him to execute the mandate of the Constitution. Any county clerk or other county officer who has appointments to make, and who earnestly desires to comply with the Constitution, will find no difficulty in accomplishing his purpose. The legislature has undoubted power of regulation, and doubtless there may be cases where it should be exercised, but the broad assertion

N. Y. Rep.]

Dissenting opinion, per O'BRIEN, J.

that the Constitution must remain a dead letter until the legislature moves cannot be sustained by any sound argument.

One of the main purposes of the Constitution, and of every civil service law or regulation, is to produce an honest, eligible list. When the appointing power has full and free access to that there can be no difficulty in complying with the letter and spirit of the Constitution. Even before the constitutional provision went into effect competitive examinations were the rule of the civil service, and no examinations whatever the exception. These exceptions have been abolished, and the Constitution has put it out of the power of the legislature, or of any executive officer, to make a new exception, or to maintain an old exception to the general rule that competition shall prevail, unless shown, as matter of fact, to be impracticable. That is the only condition upon which the Constitution will permit any deviation from the law, and since, in every view of this case, that condition did not exist, the appointments in question were in violation of the commands of the Constitution.

There is, it seems to me, a strange discord between the doctrines of the prevailing opinion in this case and the former utterances of this court on the same questions. The keynote of that opinion is that the classification of the governor or the mayor, though in conflict with the Constitution and the statute, is, nevertheless, good, and protects all executive officers and appointees until set aside. If this proposition is sound, then it follows that the mayor may place all appointments in the non-competitive schedule and thus abolish all examinations, and no one can complain till the classification itself is attacked by some proceeding to set it aside. We are not told how or by whom this executive act, abolishing examinations, may be set aside, though mandamus or certiorari are both hinted at as remedies.

The classification in this case was made about thirteen years ago, and it is too plain for argument that mandamus will not. lie to compel the mayor to change it or to make it in some other way. It is elementary law that, while mandamus will lie to compel a public officer to act who refuses to move at all, it will not lie to compel him to act in some particular way.

Dissenting opinion, per O'BRIEN, J.

[Vol. 152.

An erroneous classification, once made, cannot be corrected by mandamus, so, the suggestion of any relief from such a source may be dismissed. (People ex rel. Eq. L. A. Soc. v. Chapin, 103 N. Y. 635; People ex rel. Millard v. Chapin, 104 N. Y. 96; People ex rel. Demarest v. Fairchild, 67 N. Y. 334.)

It is equally clear that certiorari will not lie. That writ must be brought within four months from the time of the classification, and, therefore, the right of review in that form expired more than twelve years ago, if it ever existed. (Code, § 2125.)

But it is obvious that the right to review by means of that writ does not exist at all, and never did exist. The writ of certiorari is now governed and regulated by section twentyone hundred and twenty, chapter sixteen, article seven, of the Code, and it is only necessary to read the statute in order to see that it has no application to the acts of the governor or mayor under the civil service law. Official acts that are executive, legislative or administrative in their nature and character were never subject to review by certiorari. That a classification made by the executive under the civil service law is such an act, and, therefore, not subject to such review, is indisputable. (People ex rel. Copcutt v. Board of Health, 140 N. Y. 1; People ex rel. Vil. of Jamaica v. Supervisors, 131 N. Y. 468; People ex rel. S. A. R. R. Co. v. Park Commissioners, 97 N. Y. 37; People ex rel. Corwin v. Walter, 68 N. Y. 403; People ex rel. S. & U. H. R. R. Co. v. Betts, 55 N. Y. 600.) Indeed, the decision, when followed to all its logical consequences, practically abrogates both the Constitution and the statute, since it makes the will of the executive the supreme law.

It is certainly a radically new departure in this class of actions to turn the plaintiffs out of court who, as taxpayers, are seeking to restrain the operation of official acts, conceded to be illegal, upon the theory that they should have resorted to such fanciful and impossible remedies.

The judgment should be affirmed.

BARTLETT, MARTIN and VANN, JJ., concur with HAIGHT, J., for reversal; GRAY, J., reads for modification, and ANDREWS, Ch. J., concurs; O'BRIEN, J., reads for affirmance.

Judgment reversed and complaint dismissed.

N. Y. Rep.]

Statement of case.

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THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE
INEBRIATES' HOME FOR KINGS COUNTY, Appellant, v. THE
COMPTROLLER OF THE CITY OF BROOKLYN, Respondent.

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1. PRIVATE CHARITABLE INSTITUTIONS EFFECT OF NEW CONSTITUTION UPON STATUTORY LOCAL AID FROM PUBLIC MONEYS. The Constitution of 1894 did not of itself annul and render inoperative mandatory provisions in existing statutes requiring the payment by localities of public moneys to private charitable institutions, by force of the new provision (Art. 8, § 14), that such payments "may be authorized, but shall not be required by the legislature;" but its effect was to leave such statutory provisions in force until superseded by subsequent legislation.

2. LIMITATION ON FUTURE LEGISLATION. The above provision of the Constitution is a mere limitation on future legislative action, and was not intended to forbid the operation of existing laws.

3. NON-ABROGATION OF ADMINISTRATIVE DUTY OF PAYMENT OF PUBLIC MONEYS TO PRIVATE CHARITABLE INSTITUTION. The above provision of the Constitution did not abrogate the purely administrative duty imposed upon the comptroller of the city of Brooklyn by chapter 169, Laws of 1877, of paying a portion of the excise moneys to the Inebriates' Home for Kings County, a private charitable and reformatory institution. 4. REQUIREMENT OF COMPLIANCE WITH RULES OF STATE BOARD of CHARITIES. The new provision of the Constitution of 1894 (Art. 8, § 14), that no payments of public moneys by localities to private charitable institutions shall be made for any inmate who is not received and retained " pursuant to rules established by the state board of charities," operated presently, so that from the time rules should be established by the state board on the subject, no payments would be justified for inmates received or retained, in contravention of the rules of the board.

5. FAILURE OF PRIVATE CHARITABLE INSTITUTION TO EARN PUBLIC MONEYS. The courts will not compel the payment to a private charitable institution of public moneys, authorized to be paid only for the current support of inmates during the period when the fund accrued, where it appears that the institution had to a great extent ceased its operations and had not, except to a limited extent, performed the service which was the consideration of the payment to be made out of the public funds. People ex rel. Inebriates' Home v. Comptroller, 11 App. Div. 114, affirmed.

(Argued March 1, 1897; decided April 20, 1897.)

APPEAL from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 29, 1896, affirming an order of the Special Term

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