
    In the Matter of the Application of Charles A. Phillips, for a Writ of Mandamus, Respondent, to Charles F. Milliken and Others, as Civil Service Commissioners, Constituting the Civil Service Commission of the State of New York, Appellants.
    Third Department,
    June 29, 1910.
    Civil service — physician to county jails — not elective officer — . indefinite term.
    “Elective offices” within the meaning of the Civil Service Law are those filled-by election by the voters in some political division of the State, and no office filled either by an election or an appointment by a board of' supervisors is an elective office within the meaning of the statute.
    Physicians to the county jails - of the several counties are within the classified service under the Civil Service Law and appointments to that office must be "made in accordance with that law.
    That the term of. the office is indefinite does not exempt it from the provisions _ of the Civil Service Law.
    Houghton, J., dissented.
    Appeal by Charles F. Milliken and others, as Civil Service Commissioners, 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 8th day of April,.1910, granting a. peremptory writ of mandamus directing them to certify the compensation of the relator as physician to the county jail of Kings county.
    
      Edward R. O’Malley [Everett E. Risley of counsel], for the appellants.
    
      Henry F. Cochrane and Hersey Egginton, for the respondent.
   Smith, P. J. :

The Civil Service Commission has refused to certify the payroll of the sheriff’s office of the county of Kings as far as it includes an item for the compensation of the relator as physician to the county jail of Kings county, from the 5th day of February, 190.8, to and including the 31st day of December, 1909, upon the ground that this office was within the classified service under the Civil. Service Law and not exempt, and that the relator’s appointment was not in accordance with the requirements of that law.

By section 9 of article 5 of onr Constitution it is provided: “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 examinations, .which, so far as practicable, shall be competitive.” Section 126 of the Code of Civil 'Procedure, which-was-in force when the relator "iyas appointed, reads: “The board of supervisors of each county, except New York, must appoint some reputable physician, duly authorized to practice medicine; as the physician to the jail of the county. If there is more than one jail-they must appoint a physician to each, The, common council of the city of New York must appoint a similar physician to'.the jail of that city and county. - The physician to a jail holds his office at the pleásure of the. board which appointed him, except in the county of Kings. In that county, the term of his office is three years.” Section 8 of the former Civil Se'rvice Law. (Gen. Laws,chap. 3 [Laws of 1899, chap. 370], as amd. by Laws of 1900, "chap. 195, and Laws of 1902, chap. 270), which has been revised into section -9 of the present Civil Service Law (Consol. Laws, chap. 7 ; Laws of 1909, chap. 15) reads as follows: “ The civil service of the State, and of each of its civil divisions and. cities, shall be divided into the unclassified service and the classified service. The unclassified service .shall comprise all elective offices; all offices filled by election or appointment by the Legislature on joint ballot; all persons appointed by name in. any statute ;■ all legislative officers and employees; all offices filled by appointment by the Governor, either upon or without confirmation by the Senate, except officers and employees in the executive offices; all election "officers; the head or heads of any department of the .'government, and persons employed in or who seek to enter the public service as superintendents, principals or teachers in a public school or academy or in a State normal school or college, The classified service shall comprise all positions not included in the unclassified service.”

The Special Term, has directed the.Commission to certify the compensation of the relator, although he was not appointed in accordance with .the requirements of the Civil' Service Law, upon the ground as stated by the Attorney-General, and'not questioned upon the argument, that this office was an elective office, and, therefore,. within the nnclassitied service.' The statute heretofore recited declares that the board of supervisors shall appoint a jail physician in the several counties of the State. I attach little importance to the use of this expression, as I am clearly convinced, that the offices referred to as elective offices within the Civil Service Law are offices filled by election of the voters in some political division of the State, and that no office filled either by election or appointment by the board of supervisors is an elective office within the meaning, of the statute. This conviction arises from the ordinary significance that is given to the term “.elective offices ” by people generally, as well as from the general purposes underlying the constitutional requirement of appointment under civil service regulations wherever practicable. It is not practicable for the- designation of an officer elected by the voters at large to be governed by the civil service. It is entirely practicable that the designation of a jail physician, appointed by the board of supervisors, should be governed by civil service regulations. This may be illustrated by the fact that the office of county superintendent of highways, a position filled by appointment by the board of supervisors (Highway Law [Consol. Laws, chap. 25 ; Laws of 1909, chap. 30], § 30), is a classified position in the competitive class under the Civil Service Law. In every county in the State, except in the metropolitan district, this position has been filled by appointment from the . list of the names of three persons standing highest in the competitive examination held by the State Civil Service Commission. Moreover, it would seem that this question had been settled by the Constitution itself in section 2 of article 10 thereof, which provides: “All county officers whose election or appointment is not provided for by this Constitution, shall be elected by the electors of the .respective counties or appointed by the boards of supervisors, of other county authorities, as the Legislature shall direct. All city, "town and village officers, whose election or appointment is not provided for by this Constitution, shall be elected by the electors of such cities, towns and villages, or of some division thereof, or appointed by such authorities thereof, as" the Legislature shall designate for that purpose. All other officers, whose election or appointment is not provided for by this Constitution, and all officers, whose offices may hereafter be created by law, shall be. elected by. the people, or appointed, as the Legislature may direct".” These words in the Constitution have greater significance than would be given them in a statute, and wo.uld seem to defíne the distinction between an elective and. appointive officer, especially in a statute enacted to carry out some specific provision of the. Constitution itself.

It is further contended that this position is not within the civil service because of the fact that it is'for a fixed term. This, contention has never been .judicially passed upon in this State. The'contention, however, is not a sound one. While in respect to an office with a fixed term the protection or benefit of the Civil Service Law may not be as great, nevertheless, the appovritinent to that office may be made strictly in accordance with that law, and tó that extent at least will the State have the benefit and protection of that law. . The office of county superintendent of highways, referred .to above, is for the term of four years.

I recommend, therefore; that the order be reversed, with costs, and that the motion be denied, with ten dollars costs, this being the sum allowed to the.relator by the order appealed from.

All concurred, except Houghton, J., dissenting.

Order reversed, with costs, motion denied, with ten dollars costs.  