Summary
In People ex rel. Melledy v. Shea, No. 1 (73 App. Div. 232), no question was presented as to the power of the court to issue a writ against the defendant after he had retired from office.
Summary of this case from People ex Rel. Hatch v. LantryOpinion
June Term, 1902.
Joab H. Banton, for the appellant.
Theodore Connoly, for the respondents.
We are of the opinion that the application of the relator should have been granted. The facts stated by him in his application as entitling him to a preference not being denied, clearly entitled him, under the statutes, to a preference in appointment. The Constitution of the State (Art. 5, § 9), as well as the statutes passed in pursuance thereof, conferred upon him this right. That he was entitled to a preference is conceded, but it is sought to justify the act of the commission in not certifying his name to the commissioner of bridges, and the commissioner of bridges in not appointing him to the position to which he desired to be appointed, by asserting that the civil service commission, acting in pursuance of section 17, chapter 370 of the Laws of 1899, and certain rules adopted in pursuance thereof, subdivided the borough of the Bronx into four districts, and then provided that there should be a separate list for each district, and that an applicant was only eligible to an appointment in the district in which he resided at the time the application was made; that the relator resided in district No. 1, and that the commission had only been asked to certify to the commissioner of bridges the names of applicants eligible to appointment to positions in district No. 3, and the relator not residing therein, his name was not certified. But the civil service commission had no power to divide the borough of the Bronx into four districts. The statute confers no such power upon them and there is nothing in it from which such power can be inferred. Indeed, the only provision of the statute to which our attention has been called, from or by virtue of which it is even claimed that such power is given, is that part of section 17 which provides that "where the labor service of any department or institution extends to separate localities, the commissions may provide separate registration lists for each district or locality." But manifestly the "localities" or "districts" here referred to are some political subdivision of the State, created and existing by legislative act, at the time the registration lists are furnished. For a "district" or "locality" thus created and not otherwise, the commission may provide separate registration lists, but it cannot of its own volition, independent of the statute, first create a district and then furnish a list. Of course, the commission has only such power as the statute specifically confers upon it, or such as can be reasonably inferred for the purpose of enabling it to faithfully and fairly carry out the work committed to it. It is true that section 10 of the act referred to gives to the commission power "to prescribe, amend and enforce rules for the classification of the offices, places and employments in the classified service of such city and for appointments and promotions therein, and examinations therefor, and for the registration and selection of laborers for employment therein, not inconsistent with the Constitution and the provisions of this act." But this provision, as well as that portion of section 17 before quoted, falls far short of conferring power upon the commission to subdivide existing divisions of the State into districts. It is not difficult to see that if the commission had power to subdivide a given locality into as many districts as it saw fit, and then by rules of its own adoption make an applicant ineligible to appointment to a position except in the district in which he resided at the time the application was made, how the object sought to be accomplished by the statute would be entirely defeated and the statute, in effect, repealed, and the case before us furnishes a good illustration of it. Here, the relator stood first on the list, and being a veteran, he was entitled to a preference in appointment to the position of bridge tender in the borough of the Bronx. He was not appointed, notwithstanding there were several positions to which he might have been appointed in that borough, because, forsooth, the civil service commission had divided the borough of the Bronx into four districts and had provided that an applicant could not be appointed to a position unless he resided in the district in which the vacancy existed. The positions to be filled were in district No. 3 and the relator resided in district No. 1; therefore, he was ineligible to appointment and his name was not certified to the bridge commissioner, and when it was found that there was a position in district No. 1, to which he might be appointed, the commission was not asked to certify a list of applicants, but the bridge commissioner, acting under rules adopted by the commission, transferred a person theretofore appointed from the borough of Manhattan, which only had one district, to district No. 1 in the borough of the Bronx. We think this was a clear evasion of the intent and spirit of the statute, and that the commission, in dividing the borough of the Bronx into four districts, acted without authority and that the appointments made by the bridge commissioner from the lists certified by the commission, in so far as they conflict with the rights of the relator, were void.
The order appealed from, therefore, must be reversed and the application granted, with fifty dollars costs and disbursements.
PATTERSON, HATCH and LAUGHLIN, JJ., concurred; O'BRIEN, J., dissented.
Order reversed and application granted, with fifty dollars costs and disbursements.