
    The People ex rel. Frank S. Coit, Relator, v. Charles B. Wheeler et al., Constituting the Municipal Civil Service Commission of the City of Buffalo, Respondents.
    (Supreme Court, Erie Special Term,
    July, 1902.)
    Civil service — In general — Officers subject to the act — Registrar in the bureau of water in the city of Buffalo is not subject to the act.
    Mandamus — Mandamus against public officers — Duties, performance of which may be compelled — Classification by civil service commissioners.
    The classification of a particular municipal office by the civil service commission as in the competitive class does not involve a determination judicial in its character and an error may be corrected by mandamus.
    The Constitution recognizes that there are places in the civil service for which no examination is practicable and others for which competitive examinations are not practicable and for which non-competitive examinations should be held.
    Confidential positions are exempt from examination not by force of any express statute but because as to them examinations are not practicable.
    Where the commissioner of public works of a city is given charge and control of the collection of the water revenue and required to pay daily to the treasurer all the moneys he receives and at the samé time report them to the comptroller and is required to give bonds for the faithful performance of his duties and the accounting for the payment to the city of all such moneys, he is responsible for a misappropriation of such moneys by a subordinate whom he appoints and removes. *
    
      Where the department of public works in a city is in charge of a single elective commissioner and is divided into four bureaus each in charge of a deputy commissioner under him and he appoints such deputy commissioners and all other officers and employees of the department, tne registrar of the water bureau, whose duties are not defined by the charter or ordinances of the city blit are delegated to him by the commissioner, and comprehend the immediate supervision of many subordinates, including a cashier and his assistant through whose hands pass large amounts of public money, as well as the examination of vouchers for large expenditures, the entire control of the bureau in the absence of the deputy commissioner and the duty of hearing and adjusting complaints made by the users of water, and" where under the charter the commissioner would be responsible to the city for a misappropriation of the water revenues, the position of registrar is a confidential one and exempt from civil service examination.
    Application for a mandamus.
    O’Malley & Cuddeback, for application.
    Edward L. Jung, opposed.
    
      
       Received too late for insertion in proper place.— (Reportes.)
    
   Kenefick, J.

The relator, Coit, asks that the' defendants, constituting the municipal civil service commission of the city of Buffalo, be .directed by a writ of mandamus to exempt the position of registrar 'in the bureau of water in said city from- examination under the civil service rules, and to certify the appointment of said Ooit as such registrar.

At the outset the objection is interposed that mandamus is not the proper remedy; that, as the commission has placed the position in the competitive class, its determination upon that subject is judicial in its "nature and can be reviewed, if at all, only by a writ of certiorari.

Discussion of this question is foreclosed by the decision of the Appellate Division in the First Department in thS recent case" of People ex rel. Mack v. Burt, 65 App. Div. 157; affirmed without opinion in the Court of Appeals, 170 N. Y. 620. In that case a taxpayer sought to review by certiorari the classification by the municipal civil service commission of a certain position in the civil service of the city of Hew York. The court dismissed the writ and its opinion says: “A classification of the officers is necessary to determine the method of appointment, and such a classification is no more a judicial determination than is the designation of the officer by the appointing power under the provision of the statute.”

That this court has the power to review the classification of the civil service commission, and, if erroneous, to direct a proper classification is too well settled by judicial authority to admit of serious dispute. Chittenden v. Wurster, 152 N. Y. 345. In People ex rel. Sweet v. Lyman, 157 N. Y. 368, the commission had classified as competitive the position of special agent of the excise department, and it was argued that this classification precluded the court from holding that this was a confidential position and, therefore, exempt from examination. In passing upon this claim the Court of Appeals says: ° “ Surely the civil service commission' cannot change the actual status of a position by declaring one which is actually confidential not to be so;” and the court held that the classification was improper. Mandamus lies to compel public officers to do those acts which clearly appertain to their duty (13 Ency. of PL & Pr. 493), and this remedy is suggested as appropriate to compel a proper classification of positions in the civil service by Judge Haight, writing for the court in the Chittenden case, supra, and by Justice Davy in Rowley v. City of Rochester, 34 Misc. Rep. 291.

The system of examination for entrance into the civil service was introduced in this State by chapter 354 of the Laws of 1883. That statute and every subsequent statute upon the subject, prior to the adoption of the amended Constitution of this State in 1891 recognized that there were certain offices and positions in the civil service for which examinations were not practicable. Certain positions were expressly exempted from examination by the statutes, and the other places were required to be classified for the purpose of examination “ so far as is practicable.” Laws of 1883, chap. 354, and amendatory acts. The civil service system so-called was imbedded in the fundamental law of this State by the adoption of section 9 of article V of the Constitution of 1894, which provides: “Appointments and promotions in the civil service of the State, and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness, to be ascertained, so far as practicable, by examination, which, so far as praeticable, shall be competitive.”

This constitutional provision recognizes, first, that there are places in the civil service for which no examination is practicable, and, second, that there atfe other positions for which competitive examinations are not practicable, and for" which noncompetitive examinations should be held.

The existing statute (Laws of 1899, chap. 370), passed to carry into effect the constitutional mandate, excepts altogether from the operations of the civil service regulations certain offices and positions (§8), and places in the exempt class certain other” specified offices and “ all other subordinate offices, for the filling of which competitive or noncompetitive examinations may be found to be not practicable.” § 12.

The present law does not, nor did any prior civil service statute, expressly and in terms declare that confidential positions should be exempt from examination.

Confidential positions are and were expressly excepted only from the operation of the veterans’ statutes so-ca|led. Laws of 1896, chap. 370, § 21; Laws of 1888, chap. Í19; Laws of 1894, chap. 716; Laws of. 1896, chap. 821; Daws of 1898, chap. 184.

The Court of Appeals in the Chittenden case, supra,, exempted confidential positions from examination by a judicial construction of the civil service provision of the Constitution above quoted, holding that as to such positions examinations were not practicable.

The conclusion being reached that the relator has invoked the proper remedy, and that this court has the power to review the classification of the civil service commission, we are thus brought to the question as to whether -the relator’s position should be placed in the exempt- class. As it is not expressly exempted by the statute, our examination is limited to a determination as to whether it is a confidential position. In the Ohittenden case the Oourt of Appeals says: "In order to determine whether the exawination of a candidate for an office is practicable, we must first ascertain the nature and characVer of the duties of his position. Having ascertained the facts, the question of exemption then, doubtless, be~mes one of law." Page 358.

The department of public works of the city of - Buffalo is in charge of a single elective commissioner, who has general charge and control of the water supply, sewer system, public streets and places, except parks and park approaches, and all public works, structures and improvements, and of the construction, alteration and repair of all buildings in the city. There are four bureaus in the department, each of which is in immediate charge, under the commissioner, of a deputy commissioner.

The deputies and all other officers and employees of the department are appointed and removed by the commissioner. The bureau of water is charged with the duty of obtaining the water supply, distributing it to the consumers and collecting the water rates. This bureau is in practice divided into three branches: The general officepin the Municipal Building; the storehouse, several blocks "distant; and the pumping station, two miles away. The duties of his position require the deputy to attend all three branches.

The pumping station is under the special charge of a chief engineer, whom the municipal commission placed in the exempt class. The storehouse is in special charge of a general foreman, likewise placed in the exempt class.

The duties of the relator are not defined by the charter or ordinances of the city, but are delegated to him by the commissioner of public works, under the general power conferred by the charter on the commissioner, “ to make and enforce rules and regulations for the government of the' officers and employees of the department in the discharge of their duties.” City Charter, § 284. The relator is given special charge of the general office having immediate supervision of fifty subordinates, including a cashier and assistant cashier, who receive water rates amounting to upwards of-$600,000 a year; he is at times required to examine vouchers for the expenditures of the bureau for maintenance and pipe, extensions, which expenditures -amount to about $150,000 a year, exclusive of salaries; in the absence or inability of the deputy commissioner he is charged by the commissioner with the entire control of the bureau; it is his duty also to hear and adjust complaints made by users of water.

The Court of Appeals in the Chittenden case furnished this definition of a confidential position, viz.: “ Where the duties of the position were not merely clerical, and were sucb as especially devolved upon the head of the office, which, bv reason of his numerous duties, he was compelled to delegate to others, the performance of which required skill, judgment, trust and confidence and involved the responsibility of the officer or. the municipality which he represents, the position should be treated as confidential.” P. 360.

I think it will be conceded that the duties -of water registrar as above outlined are invested with every element of a confidential position as thus defined, with the possible exception of involving the responsibility of the appointing officer, or of the municipality. I am convinced that the performance of the duties of this position involves the responsibility, of both. The commissioner of public works is given charge and control of the collection of the water ‘revenue. Charter, § 271, subd. 1; § 273, subd. 2. He shall pay daily to the city treasurer all moneys received by him from any source, and make a report at the same time to the comptroller.” Id., § 286. He shall file a bond with sureties, in a sum to be fixed by ordinances “ conditioned for the faithful performance of the duties of his office, and for, the accounting for and payment to the city of all moneys belonging to the city received by him.” ■ Id., § 48.

By collusion with other subordinates in the office, e. g., the cashier, it is evident that- the registrar could misappropriate the water revenues. Hnder the foregoing provisions of law governing the duties of the commissioner relating to the water revenues and fixina the nature of the bond required of him, would not the commissioner be responsible to the city for such misappropriation ?

In the case of Tillinghast v. Merrill, 151 N. Y. 135, the Court of Appeals held a supervisor liable for public moneys which came into his hands, and which he in good faith and without negligence deposited in a bank, and which were lost by the failure of the bank. In discussing the question the court says: “Without regard to decisions outside of our own jurisdiction, we think the weight of the argument, treating this as an original question, is in favor of the rule of strict liability which requires a public official to assume all risks of loss and imposes upon him the duty to account as a debtor for the funds in his custody.”

Applying this strict rule of liability to the case in hand, I am of the opinion that the commissioner would be responsible.

The other provision of the City Charter (§ 477) providing that each officer of the city shall be liable on his official bond for the general conduct of his deputy, does not expressly, or by implication, relieve the commissioner from liability for the misappropriation by his subordinates of the moneys, with the collection of which the commissioner is charged by law, and for the faithful accounting for which and payment to the city he has given his official bond.

The entire charge of the bureau under the commissioner devolves upon the registrar in the absence or inability of the deputy. It must be entirely apparent that the negligent or unfaithful performance of the important duties thus liable to be cast upon the registrar would involve the responsibility of the municipality.

The definition of a confidential position as above set out is fully satisfied where the performance of the duties involve the responsibility either of the appointing officer or of the municipality.

In People ex rel. Crummey v. Palmer, 152 N. Y. 217, it was held that an assistant warrant clerk in the comptroller’s office of the city of Brooklyn held a confidential position. His ordinary duties were merely clerical; but, in the absence of the warrant clerk, he was charged with the duty of making out warrants and, after they were signed by the- proper officer, of delivering the warrants so signed to the persons entitled thereto.

It is true that the same court in the Chittenden case observed that the Orummey case was on the border line, but it is clear to my mind that the present relator’s position is well within the border.

The defendants rely on the case of People ex rel. Tate v. Dalton, 41 App. Div. 458; but that case is distinguishable in two respects, viz.: First, the court was considering the “ strictly confidential ” position excepted from the operation of the veterans’ acts, and second, the duties of the position did not involve either the personal responsibility of the appointing power, or the responsibility of the municipality.

The conclusion being reached that the relator’s position was improperly classified and is not subject to examination, the writ prayed for is granted.

Application granted.  