People Ex Rel. Sweet v. . Lyman

William H.D. Sweet, the appellant, is a citizen of this state and is an honorably discharged soldier of the Union army during the late civil war, having served therein as a second lieutenant of the Third regiment of cavalry of New York state volunteers.

In June, 1896, he passed the civil service examination and was placed upon the register of applicants eligible for appointment to the position of special agent under the Liquor Tax Law. On the 26th day of September thereafter, the defendant appointed him to the position of special agent for a probationary term of three months, upon a salary of $1,200 per annum. He thereupon entered upon the discharge of the duties of his position and served the term for which he was appointed. On the 19th day of December, 1896, he received a letter from the defendant notifying him that his efficiency and capacity for the work required as a special agent during his probationary term of three months had not proved satisfactory, and that his employment would cease on the 23d day of December thereafter. On the 8th day of April, 1897, he petitioned the court for a peremptory writ of mandamus directed to the defendant commanding him to reinstate him to the position of special agent, or for such other and further relief as may be just and proper. In his petition he alleged that he had the capacity required for the performance of the duties of a special agent, and that he was efficient in the discharge of his duties as such during his probationary term. The defendant opposed his application for the writ upon an affidavit filed by him asserting his inefficiency and incapacity for the discharge of the duty of the position. Upon the hearing of the motion before the court, the relator asked that an alternative writ issue in order that the question of his capacity and efficiency might be determined by the court. The court refused to issue an alternative writ and denied his motion for a mandamus, and this order was affirmed in the Appellate Division.

Chapter 821 of the Laws of 1896 provides that: "§ 1. In every public department and upon all public works of the state of New York, * * * honorably discharged Union soldiers, sailors and marines shall be preferred for appointment, employment and promotion; * * * provided they possess the business capacity necessary to discharge the duties of the position involved. And no person holding a position by appointment or employment in the state of New York * * * who is an honorably discharged soldier, sailor or marine, * * * shall be removed from such position or employment except for incompetency or misconduct shown, after a hearing upon due notice, upon the charge made, and with the right to such employee or appointee to a review by writ of certiorari; a refusal to allow the preference provided for in this act to any honorably discharged Union soldier, sailor or marine, or a reduction of his compensation intended to bring about a resignation, shall be deemed a misdemeanor, and such honorably discharged soldier, sailor or marine shall have a right of action therefor in any court of competent jurisdiction for damages, and also a remedy by mandamus for righting the wrong. The burden of proving incompetency or misconduct shall be upon the party alleging the same. But the provisions of this act shall not be construed to apply to the position of private secretary or deputy of an official or department or to any other person holding a strictly confidential position."

It may be that the provisions of this act casting the burden of proving incompetency upon an officer charged with the duty of making appointments to the civil service is unwise, and that the clause making him guilty of a misdemeanor, and liable personally in damages in case he fails to allow the preference provided for, is harsh and unreasonable. Possibly these provisions may operate to deter officers from exercising their judgment against applicants in considering their business capacity, and that, in consequence, incompetent persons may receive appointments to positions in the civil service, thereby prejudicing the public interests; but as to the wisdom and effect of these provisions we have nothing to do, and if they are unwise, harsh and unreasonable the remedy is with the legislature. As long as they remain a part of our statutes it is the duty of the courts to faithfully execute them.

The statute, as we understand it, as applied to the case under consideration, casts the burden of showing that the relator did not possess the business capacity necessary to discharge the duties of special agent upon the defendant. He appointed the relator for the probationary term of three months, provided by the statute and the rules promulgated by the governor. The commissioner thus had an opportunity to ascertain his competency and business capacity. At the end of the probationary term the relator, being an honorably discharged Union soldier, was entitled to his permanent appointment, provided he possessed the business capacity necessary to properly discharge the duties of the position. The commissioner, in the first instance, was charged with the duty of determining that question of fact. He found against the relator, but his finding is not conclusive. Under the provisions of the act the relator is given the right to have the correctness of the commissioner's determination ascertained by mandamus. This remedy he invoked, and it appears to us that, upon the papers presented, he was entitled to an alternative writ, to the end that the question raised with reference to his competency and business capacity might be tried and determined by the court in the usual way.

It is now contended that the provisions of the Liquor Tax Law (Chap. 112, sec. 10, Laws of 1896) provide that the special agents "shall be deemed the confidential agents of the state commissioner," and that the provisions of the act which we have above considered do not apply to any "person holding a strictly confidential position." It will be observed that in the Liquor Tax Law the word "strictly" is omitted, but assuming that it was the intention of the legislature to make the position of special agents a strictly confidential position, the question then arises as to whether it is in conflict with the civil service clause of the Constitution, which provides that "appointments and promotions in the civil service of the state * * * 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." In considering these provisions of the Constitution in the case of Chittenden v.Wurster (152 N.Y. 345), we held that competitive examinations were not practicable for positions which were strictly confidential to the appointing officer, and in that case and in the Crummey Case (152 N.Y. 217) we discussed to some extent the question as to what constituted a confidential position. Of course, great weight should be given to the determination of the legislature as to the character of the position. It, however, cannot override the Constitution and by an enactment make a position confidential which, under a fair and reasonable construction of the Constitution, is not confidential. Whether a position is confidential or not depends largely upon the character of the duties of the position. We think, however, that we are relieved from the consideration of this question at this time for the reason that the commissioner of excise in this case has made no claim that the position was confidential or that he refused to appoint the relator for that reason. In his answer to the petition for the writ of mandamus he alleged two grounds, and two only for the opposing of the allowance of the writ. These grounds were, first, incompetency, and, second, laches in instituting the proceedings. Those were the only questions brought to the attention of the court and are the only questions which we think can properly be here considered.

The order of the Appellate Division and that of the Special Term should be reversed and an alternative writ issued, and for that purpose the proceeding should be remitted to the Special Term, with costs to abide the final award of costs.