
    William F. Peck, a Taxpayer, etc., Pl’ff, v. The City of Rochester and Others, Def’ts.
    
      (Supreme Court, Special Term, Monroe County,
    
    
      Filed September 7, 1888.)
    
    Civil service—Laws of 1883, chap. 354, as amended by chap. 410, Laws 1884—Rochester (city of)—What a violation of.
    Under the provisions of section 8 of chapter 354 of Laws of 1883,. as amended in 1884, it became the duty of the mayor of the city of Rochester to cause to be arranged in classes the several clerks and persons employed, or being in the public service of the city, and the section also provided that no officer or clerk should be appointed and no person should be admitted to or be promoted in either of said classes until he had passed an examination as provided by said act. Under this direction the mayor of the city of Rochester classified the civil service of that city as follows:
    
      “ Schedule B (part first) all officers and members of the police and fire departments. Schedule B (part second) all other subordinate officers, clerks and assistants.” Held, that a contract which the mayor was by resolution of the common council to make with B, requiring him to examine all street lamps, and their location, and assist the lamp committee in the designation and location of such lamps, and to keep a book of record of such lamps and electric lights during the term of such contract, together with the number of such lamps and lights and location and time not burning,, etc., and report to the committee and common council all the details connected with such lamps and lights, and to examine into any and all complaints in relation to said lamps; the resolution also providing for toe payment of B for his services as “lamp inspector” and for his giving security for his faithful performance of the aforesaid matters, makes his services or employment come within schedule B (part second) of the classification made by the mayor, and in discharging those duties he would be a clerk in the civil service of the city as a clerk, and the act in question prohibits his employment until he has passed the requisite examination.
    Action to restrain the city of Rochester, and its officers, from making a contract with the defendant, Belknap, for the services of the latter, and also restraining payment to him for certain services.
    
      J. H. Hopkins, for plt’ff; H. J. Sullivan, assistant city attorney, and George Raines, for def’ts.
   Angle, J.

The questions mainly discussed in this case arise under the civil service law. (Chap. 354, Laws of 1883; amended by chap. 410, Laws of 1884).

Civil service examinations, as a prerequisite to entering upon the duties of office, appear to have been known to the common law of England more than five hundred years ago. In the city of London, in a tower which is thought to have been one of the earliest portions of Westminster Abbey, is a room where there are six horse-shoes and sixty-one nails which, by ancient custom, the sheriffs of London were compelled to count when they were sworn in. In the time of Edward 2d, when this custom was established (1308, 1327), it was a proof of education, as only well instructed men could count up to sixty-one. At the same time, it was ordained that the sheriff, in proof of his strength, should cut a bundle of sticks. This custom (the abolition of which has been vainly attempted), still exists, but a bundle of matches is now provided. The original knife is always used. (Second Hare’s Walks in London, 272, 273; New York edition, 1878). To secure the theological qualifications of the sheriffs, they were required not only to take the oaths of allegiance and supremacy as well as the statutory oath of office, but to make a declaration against transubstantiation, and to receive the sacrament within three months after entering upon office, in the presence of two witnesses and one church warden, and get certificate that they had done so, signed by the minister and one church warden, and the two witnesses must also make affidavit of the fact. (14 Petersdorff Abr., 429, Note. New York Ed.,1831).

Section 8 of the act of 1883, as amended by the act of 1884, directed the mayor to prescribe such regulations for the admission of persons in the civil service of the city as might best promote the efficiency thereof, and ascertain the fitness of candidates in respect to character, knowledge and ability for the branch of service into which they sought to enter, and for this purpose he was directed to employ certain persons to conduct such inquiries and make such examination, and to prescribe their duties and establish regulations for the conduct of persons who might receive appointments in said service. The section also enacted that the regulations so prescribed should, among other things, provide and declare as in the second sub-division of the second section of the act is provided in reference to regulations for admission into the civil service of the state. Said second sub-division is as follows: “All the offices, places and employments so arranged or to be arranged in classes shall be filled by selections from among those graded the highest as the result of such competitive examinations.”

Section 8, as amended in 1884, also made it the duty of the mayor in and by such regulations, to cause to be arranged in classes, the several clerks and persons employed,

: or being in the public service of the city, and that he should include in one or more of such classes, so far as practicable for the purposes of the examination herein provided for, all subordinate clerks and officers in the public service of the city to whom his power under the act extended. Said section then proceeds: “no officer or clerk shall be appointed, and no person shall be admitted to or be promoted in either of the said classes now existing or that may be arranged hereunder pursuant to said rules, until he has passed an examination, or is shown to be exempted from such examination, in conformity with such regulations.”

Under this direction, the mayor of the city of Rochester prescribed certain regulations "by which he classified the civil service of that city as follows: “Schedule B. (part first). All officers and members of the police and fire departments. Schedule B. (part second). All other subordinate officers, clerks and assistants. Schedule D. Shall include all persons emgloyed as laborers or day workmen.” This he evidently did under that provision of the law which made it his duty to arrange in classes the several clerks and persons employed or being in the public service of the city. And, with reference to such qualification, the mayor, by his regulations, further provided as follows: “appointments shall be made or employments shall be given in the positions in Schedule B. by selections from those persons graded highest as the result of open competitive examination, provided that vacancies in higher positions in this schedule may be filled by the promotion of those holding lower position in the office.” There is no pretense that Belknap’s case is covered by Schedule B., part first, and it need not be further noticed.

The question then arises whether his case comes under Schedule B, part second. To determine this requires an examination of the proceedings of the common council to see what service it was contemplated he should perform. The resolution of the council under which the lamp committee employed him, was first passed November 1, 188?, and was: That not more than one person be so employed and that the person so employed by the lamp committee, shall be paid not to exceed seventy dollars per month, from November 15, 1887, to April 1,1888, and that said person be required to give a bond in the sum of $500, for the faithful performance of his duty; that the police commissioners be asked to require the policemen to report each day, the number of lights unlighted on their beats, and that these facts be reported every day to the person so employed by the lamp committee. This resolution was disapproved by the mayor, under section 48 of the city charter, from which disapproval, dated November 9, 1887, as it shows the construction put upon the resolution by the mayor, I quote as follows: ‘A resolution adopted at your last regular meeting, would seem to empower the lamp committee to employ a person for the next five months, at the rate of seventy dollars per month, to receive daily reports from the police department of lamps not found lighted by the policemen, on their various beats.’ I am quite sure the police department will cheerfully file such reports with the clerk of your board for your information, and therefore, the expensewould be wholly unwarranted, and the said resolution is hereby returned disapproved.” The above disapproval appears to have been presented to the council at a meeting held November 15, 1887, and a vote was thereupon taken upon the question: “ Shall this resolution stand notwithstanding the objections of his honor the mayor ? ” And the resolution •was sustained ” by the votes of two-thirds of all the members of the common council then in office. The effect of this action under section 48 of the city charter was that the resolution should have full force and effect, noth withstanding the objections of the mayor.” Under this resolution, the lamp committee employed Belknap, and he commenced his services November 19,1887, and continued them until the first day of April, 1888. The commencement of the resolution that not more than one person be so employed,” etc., indicates a reference to something that had preceded it.

The next thing preceding it at the meeting of November 1, 1887, was the vote of the common council sustaining the disapproval of the mayor of a resolution of the council, passed October 14, 1887, which attempted to authorize and direct the lamp committee to open and keep a book wherein, on and after October 25, 1887, should be entered the name of each street in the city of Rochester wherein any gas lamps or electric lights were then placed, together with the number of said lamps or lights, the number of said gas lamps not burning, the number of said electric lights not burning, and that such entries should be made in said book on each and every day thereafter, Sundays excepted. As the resolution of October 14, 1887, contained nothing about employing any person to do anything, and as, by the concurrent action of the mayor and council, that resolution was defeated, I do not see how it can be referred to to extend the employment provided for in the resolution of November 1, 1887, beyond what is actually provided for in the latter resolution. Possibly, individual members of the council, in originálly passing the resolution of November first, and then in repassing it over the mayor’s disapproval November fifteenth, may have intended to authorize the lamp committee to employ some person to perform the duties or service which, by rejecting the resolution of October fourteenth, they had refused to authorize or direct the lamp committee to do. But whatever may have been the individual intention of members, I cannot find in the resolution of November first, any duty imposed on the employee under it, except to receive the reports provided for, and that duty has to be inferred from the provision requiring the reports to be made to him. Those duties were the receipt, and inferentially, the custody of the reports by the police with reference to the lights and lamps—duties of a clerical character. In discharging those duties he was in the civil service of the city as a clerk, and the act in question prohibited his employment until he had passed the requisite examination.

The next point is as to the resolution of December 20, 1887, directing the mayor to contract with Belknap, and which resolution was disapproved by the mayor, and his veto was presented at a meeting of the common council, January 17, 1888, when it was laid on the table to the next regular meeting. At such regular meeting it was further postponed for two weeks, and it finally came up at a meeting held February 7, 1888, when the council proceeded to vote upon the reconsideration of such resolution so disapproved by the mayor, and two-thirds of all the members elected to the common council voted in favor of said resolution. Section 48 of the city charter provides in substance, that at the next meeting of the council after a disapproval by the mayor, it shall proceed to reconsider the resolution disapproved by him, and if it shall be passed by two-thirds of all the members of the common council then in office, it shall have full force and effect notwithstanding the disapproval. The resolution was a form of legislative action, and is upon the same footing and subject to the same regulations as more formal action by ordinance or bill. Cushing’s Law and Practice of Legislative Assemblies, § 2403.

There is a discussion and decision as to what power , a common council have upon the disapproval of a mayor, in Sank v. Philadelphia (8 Phil. R., 118-120), under a provision in a charter somewhat like the above in section 48. The question in that case was whether, on the coming in of a veto by the mayor and a vote upon the reconsideration having been taken and the veto sustained, the vote sustaining the veto could be reconsidered, and the court held that it could not. And a portion of the reasoning by which the court arrived at that conclusion was that the maxim “ Expressio unius est exclusio alterius” was applicable, and that everything prescribed by a charter is a prohibition of any other mode. The charter under consideration in that case did not contain the provision in our section 48 that “at the next meeting of the council after a disapproval by the mayor, it shall proceed to reconsider the resolution,” etc. Under this provision, could the common council postpone such reconsideration to the next meeting and then at that next meeting postpone it two weeks further, or did the failure to reconsider at the next meeting after the veto came in, give to the veto the effect of defeating the resolution? Against this power to postpone from meeting to meeting the reconsideration of a vetoed resolution which the charter required should be done at the next meeting after the veto comes in, the reasoning of the court in Sank v. Philadelphia (supra, p. 120), with a slight change of language, is applicable. If the postponement of the reconsideration which the charter requires to be done at the next meeting can be made from time to time, it is plain that in the end the veto will be overruled, and thus a great constitutional conservation of the rights of minorities and safeguard against inconsiderate legislation be set at naught. There is no safety but in adhering strictly to the constitutional rule; if one postponement can be had, there is no limit to the number that may not take place. The mayor having returned the resolution to the common council, it was competent for the council to give the resolution force and effect, notwithstanding the executive objections to it, by passing it in the manner and by the majority required by the charter. Cushing’s Law and Practice of Legislative Assemblies, sec. 2381.

There seem good reasons for holding that to give the resolution such force and effect after the veto of the mayor, the common council must have reconsidered the resolution at its next meeting after the veto came in. This question was not made or raised by either party upon the trial or argument, and I should not probably have noticed it here had not the proposed findings of all parties, in substance, requested me to find that the action of the council on the seventh of February, was the passing of a vetoed resolution. To this I am not prepared to assent for the reasons already offered above.

I therefore proceed to examine the case upon the remaining point presented upon the argument, assuming, as counsel did, that the resolution of December 20,1887, was passed over the veto of the mayor by the vote taken February 7, 1888. The contract which, by that resolution, the mayor was directed to make with Belknap, required Mr. Belknap to examine all street lamps, electric or gas, and their locations, and otherwise to assist the lamp committee in the designation and location of such lamps, and to open and keep a book wherein shall be entered the name of each street in the city whereon such gas lamps or electric lights are now or hereafter may be placed during the term of said contract, together with the number of said lamps or said lights, and the number and location of any such lamps or lights at any time not burning during any hours when the same is provided by contract or otherwise to be kept lighted, and the same shall be unlighted, such entries to be made in said book on each and every day, Sundays excepted, during the period of said contract. Also, to report to said committee as often as it may require, and at least once a month to the common council, a general summary for the month preceding, of the foregoing matters, and also the number of lamps or lights that have been discontinued, and the authority or cause thereof, if known to or ascertained by him, and the number and location of any and all lamps or lights that have remained unlighted, the name of the company owning or furnishing the same, and the duration of time when the same shall have been unlighted during such months, and he shall perform such other duties as may be connected with the public street lighting system of the city during the period of said contract, and as may be required, from time to time, by said committee or the common council, and to furnish to said committee and the council, as may be directed, written reports upon any of the subjects aforesaid.

Said resolution also provides for the payment of Belknap for his services as “lamp inspector” and provides for his giving security for his faithful performance of the aforesaid matters. It also provides that Belknap shall examine into any and all complaints or charges of any of said lamps or lights having been unlighted at any time during said contract, which shall have been received by him or come to his knowledge or information.

The above abstract of the duties comtemplated to be performed by Belknap shows, I think, quite clearly that his services or employment would come within schedule B, part second, of the classification made by the mayor, and it follows that his employment to render such services, if consummated by entering into the contract contemplated by said resolution would have been a violation of the civil service act.

In deciding this case, I am not permitted to consider the necessity or the advantage of Belknap’s services to the city or his real qualifications or the wisdom of his employment. The entire question before me is, whether the services he was to render under either resolution came within schedule B, part second, and I have arrived at the conclusion that they do fall within that portion of the schedule. I do not allow costs because the case seems to have originated and to have been conducted in an amicable spirit to obtain an adjudication upon the civil service act and the regulations of the mayor under it. The question is a new one arising under a recent statute, and the plaintiff’s requests do not ask for costs.  