
    The People of the State of New York ex rel. John T. Kelly, Respondent, v. Charles F. Milliken and Others, Individually, and as Members of and Composing the State Civil Service Commission of the State of New York, Appellants.
    Third Department,
    November 16, 1910.
    Civil service — transfer from exempt to competitive position — qualifications of applicant.
    Rule XV, adopted by the State Civil Service Commission and approved by the Governor, providing that transfers from an exempt or non-competitive position to a competitive position shall be allowed only where the person transferred has qualified in ah open, competitive examination and is eligible for certification and appointment from the appropriate eligible list for the position to which the transfer is proposed, does not mean that one holding an exempt position who has attained any place on the eligible list for another position is entitled to a transfer, but, on the contrary, means that he is entitled to a transfer only where he is one of the three persons standing highest upon the list so as to be entitled to an original appointment to the position under rule VIII. •
    The State Civil Service Commissioners have power to make such rule.
    Kellogg, J., dissented in part, in memorandum.
    
      Appeal by the defendants, Charles F. Milliken and others, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 22d day of July, 1910, directing that a peremptory writ of mandamus issue requiring the defendants to approve the transfer of the relator from the position of personal clerk of Mr. Justice Marean of the "Supreme Court, Kings county, to the position of court attendant in said court, and directing the issuance of a certificate approving such transfer.
    The relator was for some eight years a personal clerk of a Supreme Court justice, and as such in the exempt class of the State civil service. The position of court attendant, to which transfer was sought, is in the competitive class. The salary of the latter position is less than that of the former, but the term of Mr. Justice Marean expires in about two years. In January, 1907, relator entered an open competitive examination for said position of court attendant, which examination was taken by some 1,400 others, and passed with a position of Ho. 129 on the eligible list. On January 15, 1910, Justice Marean wrote to the Civil Service Commission requesting in the name of the Supreme Court justices of Kings county that it “ certify the eligible list for court attendant,. Kings county, down to and including the name of John T. Kelly, 68 Heyward street, or his name alone, if that may be done,-Tor the purpose of transferring him from the exempt class of the service to the competitive class, in accordance with the provisions of the Civil Service Law and Kule XY, subdivision 3; ” and also stating that he would not appoint a personal clerk to fill the vacancy caused by such transfer. To this the Commission replied declining so to do on the ground that under its rule mentioned the relator did not appear to be eligible for certification and appointment. Thereafter, on March 11, 1910, the said justices of Kings county, by resolution, transferred the relator to the position of court attendant, and, on March fourteenth, advised the Commission of their action, to which the Commission replied asking that it be advised under what provision of the law and rules the proposed transfer was made. On April twelfth the justices replied, submitting a memorandum purporting to show their right to make the transfer, and on May ninth the Commission again replied, declaring that section 16 of the law and its own rule 15 did not permit the proposed transfer. Mandamus proceedings were thereupon instituted to obtain a certificate of approval from said Commission. The sections of the Civil Service Law involved upon this appeal are as follows:
    
      “ § 14. The competitive class. * * , * No person shall be transferred to, or assigned to perform the duties of, any position subject to competitive examination unless he shall have previously passed an open competitive examination equivalent to that required for such position, or unless he shall have served with fidelity for at least three years- in a similar position.”
    “§ 16. * * * No promotion, transfer or reinstatement shall be made from a position in one class to a position in another class unless the same be specially authorized by the-State or municipal commission, nor shall a person be-promoted or transferred to a position for original entrance to which there is required by this chapter or the rules an examination involving essential tests or qualifications different from or higher than those required for original entrance to the jzosition held by such person, tmless he shall have passed the examination or attained a place upon the eligible list for such higher position.”
    By section 6 the Commission is directed to prescribe and enforce suitable rules and regulations for carrying into effect the provisions of the Civil Service Law, and all rules so laid down pursuant thereto are declared to have the force aid effect of law. Bule XV, adopted by the Commission with the approval of the Governor, is as follows:
    “ Transfers from one department, office or institution to another may be made with the approval of the commission and upon mutual consent of the appointing officers of the departments, offices or ■institutions affected, as follows: * * *
    
      “3. Transfer from an exempt or non-competitive position to a competitive position, or from a position in the competitive class to a position in a different group of such class, shall be allowed only when the person transferred has qualified in an open competitive examination and is eligible for certification and appointment from the appropriate eligible list for the position to which transfer is proposed and is so certified and appointed.”
    Buie XVII provides for the issuance of transfer certificates, and provides that transfers shall not be made except after the issuance of such certificates. Eule VIII provides for original appointments to be made from the names of the three persons standing highest upon the eligible list for the position.
    
      Edward R. O'Malley, Attorney-General [Franklin Kennedy, Deputy Attorney-General, of counsel], for the appellants.
    
      James C. Cropsey, for the respondent.
   Smith, P. J.:

The first question raised is as to the intent and meaning of the Commissioners’ rule XV. Appellants contend that because relator is not one of the first three upon the eligible list for the position of court attendant he cannot be transferred to that position. Eelator’s contention is that one attaining a/ny position on an eligible list must be certified for transfer. The history of this rule would.seem to leave no room for doubt as to its purpose. Prior to 1906 the rule read as follows : A transfer of a person holding a position in the exempt or non-competitive class to a position in the competitive class may be allowed in the discretion of the commission only when the person to be transferred has qualified in an open competitive examination and his name is upon the appropriate eligible list in force at the time the request for the transfer is made.” If this rule were still in this form, the relator’s contention would undoubtedly be sound. His name was “ upon the appropriate eligible list in force at the time the request for the transfer” was made. In 1906, however, the rule was changed so as to provide that a transfer could only be allowed “ when the person transferred has qualified in an open competitive examination and is eligible for certification and appointment from the appropriate eligible list for the position to which transfer is proposed.” By rule 8 of the Commission, the commissioners are allowed to certify for appointment only the first three names upon the eligible list. The amendment of rule 15 in 1906, therefore, can have only one significance, and that is to authorize the certification of the name of one sought to be transferred only when his certification is authorized as an original appointee. In other words, the Commission has endeavored to strip from those seeking transfers all special privilege and to place them upon an equal footing with original applicants for any position in the competitive class. While this interpretation of rale 15 as amended would seem to be clear from the wording of the rule, all doubt as to its correctness is removed when read in connection with the rule as it read prior to the amendment.

But the power of the Commission to make such a rule is challenged. I know of no provision of law which denied to them the right to make such a rule. The right of - transfer from one class to another is not mentioned in the Constitution. Such a transfer is mentioned in the statute, not in any way to establish a -right of transfer, but in limitation of the power of a commission to permit it. By section 6 of the act the Commission is directed to prescribe and enforce suitable rules and regulations for carrying into effect the law, and those rules when approved by the Governor are declared to have the force and effect of law. (See, also, § 10.) In view of this power given to the Commission, the limitation imposed as to transfers upon the Commission by section 16 of the statute cannot be interpreted to require, even impliedly, any special privilege to be ■ given to an applicant for a competitive position by reason of his holding at- the time a position in the exempt class of the service. I am frank to say that, in my opinion, the civil service suffers many times from too rigid enforcement of the rule of qualification by examination, and tl.iat the prerogatives of the Commission have been at times so jealously guarded by the Commission as to work to the detriment of the service. ¡Nevertheless, I can see no reason why one holding a position in the exempt class of tlie service should be entitled to any special consideration in an application for appointment in the competitive class. It would almost seem that lie might be content with the special favor given him in his appointment to the position in the exempt class. Moreover, if the Commission were by its rules required to give such an application priority of right in the certification, it might result in a demoralization of the system by the procurement of an appointment to the exempt class for the special purpose of obtaining a prior right in the application to a position in the competitive class.

The opinion of the learned trial judge who granted the order for mandamus (68 Misc. Rep. 101) is based principally upon the case of Matter of Peters v. Adam (56 Misc. Rep. 29; affd. sub nom. People ex rel. Peters v. Adam, No. 2, upon the opinion of the court below, in 122 App. Div. 898, and without opinion in 190 N. T. 567). That case was decided at Erie Special Term and was an application for a writ of mandamus to compel the certification of relator’s payrolls by the Buffalo civil service commission. Rule 26 of the Buffalo commission provided that no person should be transferred from a position in the, exempt class to one in the competitive class unless he has passed the competitive examination prescribed ” for the competitive position. After quoting in full this local rule Judge Woodward held that under the Civil Service Law and rules,” i. e., the rules of the Buffalo commission, transfers from non-competitive to competitive positions are allowed if the persons transferred attain any place on an eligible list.” In that case Peters was fourth upon the eligible list, and the entire list was certified to the commissioner of public works by the municipal civil service commission, the commission, as held by the court, thus recognizing and authorizing the transfer. The decision in the Peters case is no authority for the respondent herein, inasmuch as rule 15 of the State Commission is clearly different from rule 26 of the Buffalo commission, which in fact corresponds exactly to old rule 15 of the State Commission before the amendment of 1906 hereinbefore referred to.

These views lead to a reversal of the order of the Special Term and to a denial of the relator’s application for a mandamus. The Commission upon this appeal have insisted that apart from their contention which we have discussed, the transfer could only be made upon their approval, which might be arbitrarily withheld. This question it is not necessary to decide, nor is it necessary to decide that the right of the Commission to make rules governing applications for employment in the civil service is unrestricted. We are of opinion that the rules in question here were authorized by the statute, and under the interpretation which we have given to those rules the relator is without right to relief.

All concurred ; Kellogg, J., in memorandum.

Kellogg, J. (concurring in result):

I concur in the result reached by the presiding justice, but not for the reasons stated. I think it is not necessary that an applicant for transfer be among the first three names upon the eligible list. In that case he would be a subject for original appointment and the transfer means nothing, and such an interpretation deprives the transfer, to which a good deal of attention is given in the law, of any real force. Section 16 of the Civil Service Law provides that a transfer or promotion shall not be made unless the same be specially authorized by the State or Municipal Commission.” The Commission has refused its authority in this case and, therefore, the transfer cannot be made. It had the power, in my judgment, to approve of the transfer, but was called upon to exercise a discretion. It exercised that discretion against the relator.

Matter of Peters v. Adam (56 Misc. Rep. 29) is not opposed to these views. There Peters sought a mandamus to compel the payroll to be certified, and a second mandamus requiring the position to be transferred to the exempt class. The court says (at p. 32): “ The commissioner of public works thereupon continued Peters in office, fairly assuming that the commission thus recognized and authorized the transfer; and it seems to me that this was the reasonable construction of the commission’s action and quite likely its intention at the time.” In that case the Commission was required to certify three persons for appointment under the eligible list; it certified four persons, Peters being the fourth, and the court felt that by certifying him in that way they had specially authorized his appointment to the place. But the court held directly that the office was in the exempt class. Being in the exempt class Peters appointment was regular; he was entitled to have his payrolls certified and he obtained the relief asked. I do not consider that case as authority that the commissioners have not discretion; it simply holds, as I read it, that they exercised their discretion in favor of Peters.

I concur in reversal.

Order reversed, with costs, and motion for a mandamus denied, without costs..  