
    The People ex rel. Michael O’Hara, Relator, v. Robert H. Neville et al., as Members of the Municipal Civil Service Commission of the City of Yonkers, and J. Harvey Bell et al., as Police Commissioners of the City of Yonkers, New York, and as the Board of Police Commissioners of Said City, Respondents.
    (Supreme Court, Westchester Special Term,
    March, 1908.)
    Civil Service — In general — Examinations — Notice.
    Municipal Corporations — Police department — Promotion — Examination for promotion—Notice of examination.
    Where the rules of a municipal civil service commission provide that, whenever the demand of the service may require, the commission will notify hy mail all applicants to appear for examination, giving at least five days’ notice, and further provide, in respect to examinations for promotions, that the appointing officer shall notify the commission of any vacancy to be filled by promotion and the commission shall direct a competitive examination and shall publish the same, by notice posted and sent by mail to those eligible to such examination,- and where it became the duty of the commission to hold a promotion examination and, because the term of office of the existing commissioners was about to expire, five days’ notice could not be given and they held an examination upon twenty-four hours’ notice, held that such examination was upon insufficient notice and was ineffectual for the purpose of creating an eligible list.
    And where such an examination was held for the purpose of creating an eligible list for the appointment therefrom to the position of sergeant in the police force and one of the persons eligible for such examination received notice thereof at 7:50 P. M. on one day to appear for examination at 7 p. m. on the following day and had been, at the time of receiving such'notice, assigned to his official duty as roundsman and was performing such duty upon a tour of duty which would not expire until 5:30 P. M. on the following day, upon which the examination was appointed to be held, such notice was not a reasonable notice and did not afford him a reasonable opportunity for preparation.
    Application for a peremptory writ of mandamus.
    William A. Walsh, for relator.
    Thomas F. Curran, for respondents.
   Mills, J.

This is an application made hy the relator for a peremptory writ of mandamus to the defendants, the municipal civil service commission of the city of Yonkers, requiring them to hold a promotion examination for the purpose of creating an eligible list for appointment therefrom to the position of sergeant in the police force of the city of Yonkers.

Three vacancies having occurred in the office or position of sergeant in such force, the -municipal civil service commission, having received from the police hoard of the city due notice of the existence of such vacancies, were about to certify to such board for appointment certain roundsmen from an eligible list, which had been established through due examination more than a year previous, which list did not contain the relator’s name, he not having been eligible to take such examination. In other words, the commission proposed to so certify without holding any new examination and establishing therefrom any new list.

Upon the application of the relator, who had become eligible to take such examination if then held, this court at Special Term, Hr. Justice Keogh presiding, on December 28, 1907, held that such list had remained valid only for one year, as provided and limited by subdivision 7 of rule 28 of the “ ¡Rules for the Classified Service of the City of Yonkers,” which had been duly established according to law and were then in force; and that said commission could not validly certify from such list, such year having expired; and that they must hold a new examination and therefrom establish a new eligible list, from which certification and appointment must be made. A peremptory writ of mandamus accordingly was that day granted and issued. Thereupon the commission determined to hold such examination that evening, upon about six hours’ notice, all that was then practicable, to the persons eligible to take such examination. Later that same afternoon an order to show cause was made why a peremptory writ of mandamus should not issue, requiring said commissioners to give five days’ notice of the examination to all persons eligible to take the same and restraining said commission from proceeding with such examination without such notice given until the hearing upon the return day of said order to show cause which was to be on the 4th day of January, 1908. Upon the afternoon of Honday, December thirtieth, at about three p. m., the commission, by their counsel, made application to me, at chambers, to modify said order to show cause by vacating the restraining clause or part thereof, upon the ground that the members of such commission would retire from office at the end of the next day, the thirty-first- of said December, their official terms expiring with the year 1907; and that, if such restraining part of the order were kept in force and it should, upon the hearing, be determined that the notice which they had given or were still able to give of their examination was sufficient, they would have been prevented absolutely from performing a lawful duty; whereas, upon the other hand, if, upon such hearing, the contrary appeared,' their examination would simply he held to have been invalid and ineffective and the situation would then be unchanged. The matter as to the legal requirement as to the length of notice being somewhat in doubt in my mind, I thought it proper to vacate such portion of the order to show cause and leave the commission to proceed with the examination as they might be advised, subject, of course, to the decision of the court upon the hearing as to its validity, making, however, the suggestion that the commission should give at least twenty-four hours’ notice of the examination, which _ indeed was all the notice then practicable for them to give, An order so modifying said order to show cause was then, about four p. m. of December thirtieth last, made.

Thereafter, at about six p. m. of the same afternoon, the members of the commission met and resolved to hold such examination the next day, December thirty-first, at seven p. m., and forthwith issued notice thereof to each of the four roundsmen, including the relator, who were eligible to take such examination. Such notice was at once posted in the police station, the office where such vacancies existed,' and a copy or duplicate thereof, by special delivery letter, mailed to the relator at the Yonkers post-office at six twenty p. m. that afternoon, December thirtieth. Such letter, containing such notice, was actually delivered to the relator while he was upon duty within said city at seven fifty p. m. that afternoon. By due assignment from his superiors the relator was continuously on police duty in said city as a roundsman from six o’clock in the afternoon of that day, December thirtieth, until five thirty p. m. of the following day, December thirty-first, about an hour and a half before the time appointed for the examination. The relator contended that the notice given to him of such examination was entirely inadequate, and, therefore, did not appear for or enter the same. A few minutes before seven p. m., the time appointed for the commencement of the examination, he, by his attorneys, presented to and filed with the commission a protest against the examination being then held, upon the ground that he had not received sufficient, proper or legal notice of such examination, as is provided by the Pules of the Municipal Civil Service Commission of the City of Yonkers and the statutes in such case made and provided.”

The matter has now been heard at Special Term, upon the affidavits of both parties and upon oral argument made and briefs submitted. . There is, upon the affidavits, no disputed question of fact, except that the respondents present the affidavit of the captain of the police force to the effect that, while the relator was on duty, as averred by him, from six p. m. December thirtieth to five thirty p. m. December thirty-first, he nevertheless had, during that period, some hours (the number not specified) for reserve duty,— that means sitting in the station house reading, studying, sleeping or doing whatever he thought fit to do;” but I assume at all times subject to immediate call.

The commission held the examination at seven p. m., December thirty-first. The other eligible roundsmen, three in number, appeared, passed the examination, were certified to the police board and that evening appointed by the latter sergeants to fill said vacancies. The official terms of both commission and police board expired with that day.

It, therefore, appears that the question here presented for determination is whether or not the notice given by the commission to the relator of such examination was legally sufficient, it being undisputed that he was qualified and eligible to take the examination and entitled to due notice thereof.

The matter is governe.d by the provisions of the rules above referred to, which have the force of statutes and are subject to the rules of construction applicable to statutes. Carmody v. City of Mount Vernon, 3 App. Div. 347, 349.

Rule 7 of said rules is headed: “ Notification of Examination,” and provides, in the first paragraph thereof, as follows : tl Whenever the demand of the service may require, the Municipal Civil Service Commission will notify by mail all applicants whose applications have been filed and are on record, to appear for examination, giving at least five days’ notice of the place, date and hour for such examination.”

Rules 5 and 6, preceding, provide as to the matter of applications to take examinations. The examination held in this case was for promotion and was limited to those who had served with fidelity in the next lower position for a given period of time.

Rule 28, headed “ Promotions,” provides for an examination of that kind. Subdivision 5- thereof provides especially as to notice in the following terms: The appointing officer shall notify the Commission of any vacancy in a position in his office to be filled by promotion, and thereupon after consultation with the appointing offieér, the Comniission shall direct a competitive examination of those entitled to enter the same under the provisions of this rule, and shall publish the same by notice, giving date and place, posted conspicuously in the office where such vacancy exists, and sent by mail to-those eligible to such examination.”

It is the contention of the relator that the requirement of rule 7, as to the giving at least five days’ notice of the place, date and hour for such examination, is applicable to the notice required to be given by subdivision 5 of rule 28. It will be observed that such subdivision does not provide at all as to the length or time of such notice. His contention is that rule 7 should be regarded as general in character and applicable to all examinations in every respect, except where, as to a particular examination, a provision to-the contrary may be found. He also contends that subdivision 7 of rule 28, which provides that The conduct of such examination and the preparation of the eligible list shall be subject to the general provisions of rules 10, 11 and 13,” etc., makes the requirement of rule 7, as to length of notice, applicable, because he claims that subdivision 6 of rule 13 in effect requires a repetition of the notice provided by rule 7. Such subdivision provides for notice of a new examination, for the making of a new eligible list, to be given to such persons whose names remain on the former eligible list, which has expired by limitation of time. In other words, his argument is that, under the scheme of the rules, the presence of the names upon the old eligible list stands in place of the original filed applications as entitling the person to notice of the new examination, as the original application did entitle him to notice of the first.

It appears from the affidavits that, during the nearly three years in which these rules were in force prior to December, 1907, the commission had uniformly before given five days’ notice of a promotion examination—that, in other words, its members themselves had practically construed the rules as making the requirement of rule 7, as to length or time of notice, applicable to promotion examinations.

The claim on the part of respondents, on the other hand, is that the requirement of five days’ notice, contained in rule 7, is not at all applicable, to promotion examinations, but is limited to examinations held of applicants whose applications may have been filed as required by rule 5; and that the length or time of notice to be given of a promotion examination is left by the rules to the judgment and discretion of the commission itself.

The researches of counsel have not enabled them to find any authority directly upon this question, although it is understood that these rules are substantially like those generally in force in the cities of the State.

Upon careful consideration, I am disposed to think and conclude that the relator’s contention here is correct; and that the requirement of five days’ notice, contained in rule 7, is generally applicable, or at least applicable to promotion examinations by virtue of the reference in rule 33 to rule 13.

If this view of the matter, however, be not correct, still it is clear, I think, that the commission, by subdivision 5 of rule 28, was bound to give to the relator and each person eligible to such examination reasonable notice thereof. It does not seem to me that it can fairly be held that a notice given to the relator at seven fifty p. m. of one day, to appear for examination at seven p. m. of the next day, when he was assigned to his official duty from six p. m. of the first day, that on which he received the notice, until five thirty p. m. of the next day, and compelled to perform such duty for such period, was reasonable.

Upon the question of reasonableness, the practice of the local commission and of the State Commission under similar rules constitutes strong evidence. It appears, from the letter of the secretary of the State Board submitted, that its practice under a similar rule has been to give at least one week’s previous notice of promotion examinations; and, as above stated, the affidavits show that the local commission here of the city of Yonkers had always, prior to this attempted examination, given five days’ notice of each promotion examination.

It would seem that the object of giving notice ought reasonably to be to give not only time to physically attend the examination, but alsq time, to some extent at least, to mentally prepare therefor. It is readily apparent that the time given to this relator was wholly inadequate for the latter purpose, and indeed, considering his actual and enforced duty as roundsman for the whole intervening period except an hour and a half, scarcely sufficient for his physical presence, i. e., in a physical condition fit to undergo examination.

Upon the whole, therefore, whether the rule should be construed as requiring five days’ notice of a promotion examination, or only as requiring a reasonable notice thereof, it is my conclusion that the notice actually given here was entirely insufficient; and that, therefore, the relator is entitled to the relief which he asks.

Doubtless the members of the commission, by the decision that the former eligible list had expired, upon which they had just acted, found themselves in an embarrassing position and naturally desired to make good the work which .they had attempted to perform, but which by such decision was made ineffective. Unfortunately, the time of official life remaining to them was too short to enable them to do that work over again so that it can be permitted to stand.

In the absence of previous judicial construction of the rules upon this point, it was not improper for them to attempt, as they did, to make good their work; and no reflection upon them is herein intended.

Ordered accordingly.  