
    The People of the State of New York, Respondent, v. Stephen A. Ingham, Appellant.
    
      Health officer of the city of Little Halls — when, in the absence of express statutory provision, he may be appointed by the board; of health — he must first be certified to be qualified for the position by the civil service commission.
    
    The charter of the city of Little Falls (Laws of 1895, chap. 565, § 14, as ami byLaws of 1896, chap. 13) provides that the health officer thereof shall be appointed “in pursuance of general laws.” Previous to the amendment of section 20 of the Public Health Law (Laws of 1893, chap. 661} by chapter 383 of the. Laws of 1903, that section, contained an express provision for the appointment of a health officer in that.city, but by such amendment such express provision was omitted therefrom. In 1904, by chapter 484 of the laws of that year, the Legislature again amended section 20' of the Public Health Law by reinserting the omitted provision.
    
      
      Meld, that the omission of section 20 of the Public Health Law as amended in 1903 to expressly authorize the appointment of a health officer for the city of Little Falls was an oversight on the part of the Legislature and that notwith-, standing such omission, the board of. health of the city of Little Falls had power to appoint a health officer for the city while the amendment of 1903 remained in force.
    Where a municipal office or position is in the non-competitivé class of the civil service and is subject to a non-competitive examination, the holding of such examination and the issuing of a certificate of qualification by the civil service authorities must precede an appointment to the office or position; if the appointment is made prior to the taking of the examination by the appointee and the issuance of a certificate of qualification to him and he is not again appointed after he has taken the examination and obtained the certificate, his appointment is invalid.
    Williams, J., dissented.
    Appeal by the defendant, Stephen. A. Ingham, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer on the 31st day of December, 1904, upon the decision of the court, rendered after a trial at •the Herkimer Trial Term, a jury having been waived, ousting the defendant from the office of health officer of the city of Little Falls.
    The action is in the nature of quo warranto to try the title of the defendant to the office of health officer of the city of Little Falls. It was commenced in October, 1904. The grounds-upon which the removal of the defendant was sought and upon which the judgment of ouster was based were :
    
      First. That at the time of the defendant’s appointment there was no statute or law authorizing such appointment; and,
    
      Second. That at the time the defendant was not eligible, and, therefore, his appointment was made in violation of the provisions of the Civil Service Law and was .void.
    
      Myron G. Bronner, for the appellant. 1
    
      Eugene E. Sheldon and Julius M. Mayer, Attorney-General, for the respondent.
   McLennan, P. J.:

The facts are not in dispute and only questions of law are involved upon this appeal.

One Augustus B. Santry had been for several years health officer of the cEy of Little Falls, haying been appointed annually by the board of health of said city. The term for which he was last appointed expired on the last day of February, 1904, but it is claimed that under the provisions of the Public Officers Law lie was entitled, unless removed, to hold the office until his successor was legally appointed.

On the 9th day of February, 1904, while said Santry was discharging the duties of health officer under his last appointment, the board of health of the city of Little Falls, consisting of six members besides the mayor, convened as such, and all members being present, by a majority vote assumed to appoint the- defendant health officer ' of said city to succeed said Santry, his term to commence on the 1st day of March, 1904, the date when the term for which said Santry was appointed expired. The defendant took and filed the official oath of office on the 15th day of February, 1904, and on March 1, 1904, took possession of the office, assumed to discharge its duties, and was acting as health officer of the city when this action was commenced and at the time of the trial.

It is conceded that by the civil service rules applicable the position of health officer was in the non-competitive class. The defendant had not prior to his appointment taken a civil service examination and had not received any certificate of qualification and fitness as required by the rules of the Civil Service Commission. He, however, after his alleged appointment by the board of health as aforesaid and about the last day of February, 1904, and before his term of office commenced, did take a non-competitive examination pursuant to a notice directed by the mayor to the chairman of the civil service commission of the city of Little Falls, which notice is as follows:

“ It is necessary that Dr. S. A. Ingham (the defendant) and I think Dr. Geo. H. Smith should take a non-competitive examination before March 1st. Please attend to this matter.
“ Yours sincerely,
“ EDWARD H. DOUGLAS,
Mayor."

In compliance with such request of the mayor the defendant was given an examination with others, and he, the defendant, passed the same and received a certificate to the effect that he was in all respects qualified for the position or employment of health officer

of the city of Little Falls. Such notice was dated on the 29th day of February, 1904, and before the commencement of his term of office. After such examination and. certification, by the civil service commission of the city of Little Falls, no other or new appointment of the defendant was made. As we have seen, it is urged, first, that the board of health of the city of Little Falls under the law as it then was had no authority to appoint the defendant or any other person health officer of said city, and the learned trial court so determined. This holding, we think, was erroneous. Its correctness must be determined by the meaning and interpretation which should be given to section 20 of the Public Health Law (Laws of 1893, chap, 661), as amended by chapter 383 of the Laws of 1903, and which was in force at the times in question. That section provides at the very outset as follows : “ There shall continue to be local boards of health and health officers in the several cities, villages and towns of the State.” In the section there is no express provision which prescribes how such officers shall be appointed or by whom. By the charter of the city of Little Falls and of several other of the cities of the State it is provided that their respective health officers shall be appointed in pursuance of general laws.” And it is, therefore, urged that as section 2.0 of the Public Health Law (as amd: supra) does not contain any provision for the appointment of such officers, the authorities of such cities are powerless to appoint the same. Previous to the amendment of 1903 there was such express provision in the statute and it was in substance in all of the preceding statutes as follows : The board shall appoint a competent physician, not one of its members, to be the health officer of the city.” (See Public Health Law [Laws of 1893, chap. 661], § 20, as amd. by Laws of 1894, chap. 268; Laws of 1895, chap. 584; Laws of 1897, chap. 282, and Laws of 1902, chap. 339. See, also, Laws of 1832, chap. 333, § 3; Laws of 1885, chap. 270, §§ 1, 2.) In the year following, by chapter 484 of the Laws. of 1904, the Legislature again amended section 20 of the Public Health Law by providing in effect that the board of health of the city of Little Falls and cities similarly situated should have the power to appoint a health officer. Construing the language of section 20 of the Public Health Law, as amended by chapter 383 of the Laws of 1903, and the other acts of the Legislature preceding and following it, and also the language of the charter of the city of Little Falls, we think it should not be held that it and other cities throughout the State similarly situated did not possess the power at the times in question to appoint a health officer. The duties of such officer are important, possibly essential to the preservation of the health of the municipality, and it should not be held that the municipalities of the State had not the power to appoint such an official, except the language employed by the Legislature clearly indicate such an intent on its part. As we have seen, section 20 of the Public Health Law, as amended in 1903, under which this controversy arises, provides that the health officers shall continue, and we think, notwithstanding there is no express provision to that effect, that it was clearly the intention of the Legislature that such officers should be appointed by the boards of health of such cities. In fact, it is apparent from the preceding statute and the amendment which follows it, that it was an oversight on the part of the Legislature in omitting to confer the express power of appointment upon such boards. At all events, we conclude that the board of health of the city of Little Falls did have power under the statutes and law as it existed on the 9th day of February, 1904, to appoint a health officer to succeed Mr. Santry, whose term of office expired on the last day of that month.

We, however, are of the opinion that the defendant was not eligible for the office of health officer when appointed, and for that reason he was properly ousted from office, and the judgment appealed from should be affirmed. ' The several provisions of the Civil Service Law clearly indicate that it was the intention of the Legislature that all persons seeking employment in the civil service and who came within the provisions of the Civil Service Law, should be declared to be eligible by certificate of the officers or boards created by such law: It was not the intention of the Legislature that an appointment could be made subject to the approval of such officers or boards. In the non-competitive class the appointing power may name or indicate to the civil service board the person whose appointment is desired, and if the board finds that such person is qualified and fitted for such position and so certifies, such appointment may then be made, and not until then. It would bring the administration of the Civil Service Law into disrepute if an appointment to office covered by it could be legally made, subject only to the approval of the officers charged with the execution, of such law. We think such was not the. intention of the statute.

We conclude that the defendant was not, at the time when the board of health of the city of Little Falls assumed to appoint him health officer'of said city, eligible to appointment to such office, because at the time he had not passed the civil service examination and been certified as qualified and fitted for the position, and that, therefore, the judgment ousting him from office was properly rendered against him.

It follows that the judgment appealed from should be affirmed, with costs.

-All concurred, except Williams, J., who dissented. '

Judgment affirmed, with costs. 
      
      Laws of 1895, chap. 565, § 14, as amd. by Laws of 1896, chap. 13.— [Rep.
     