
    The People ex rel. Lucius H. Bedford, Relator, v. John J. McWilliams et al., Composing the Civil Service Commission of the City of Buffalo, Respondents.
    (Supreme Court, Erie Special Term,
    June, 1905.)
    Civil service — In general — Certificate of legality of employment. Mandamus — Mandamus against public officers — Matters of discretion. Municipal corporations — Officers and agents — Officers, etc., other than mayor and common council — Compensation — Remedies of officers and employees to recover salary.
    The requirement of the Civil Service Law that the municipal civil service commission shall certify that the persons named in a pay-roll have been appointed or employed according to slaw does not imply a certificate by the commission that such persons have performed services appropriate to the title of the positions assigned to them on the pay-roll but only that they were qualified for appointment or employment in the positions assigned to them respectively on the pay-rolls. The commission will, therefore, be required by mandamus to certify a pay-roll containing the name of a foreman of laborers, where the only objection is that the services he has performed have been those of a clerk and not those of a foreman of laborers.
    Application for a peremptory writ of mandamus.
    Guy B. Moore, for relator.
    Edward L. Jung, for defendants.
    
      
       Received too late for insertion in proper place.— (Repobteb.)
    
   Kenefick, J.

The relator applies for a writ of mandamus under section 19 of the Civil Service Law, requiring the municipal civil service commission to certify so much of the pay-roll of the department of public works as refers to his pay for service rendered said department. Upon the pay-roll, as presented by the department of public works, the relator’s name appears as a foreman of laborers, and entitled as such, for services rendered for the first two weeks of June, 1905, to the sum of forty-five dollars. The relator’s name appears upon the official roster of the municipal civil sendee commission, required to be kept by section 18 of the Civil Service Law, as a foreman of laborers in, the department- of public works. This position is in the labor class for which no examination is required.

The refusal of the- municipal commission to certify the pay-roll as. to the relator' is because, while he appears upon their roster as a foreman of laborers and his pay is certified as such by the head of the .department, in reality he is performing the work of a clerk, for which position a competitive examination is required by the rules of the municipal commission. The law requires upon the pay-roll “ The certificate of the municipal civil sendee commission of such city that the persons named in such estimate, pay-roll or account have been appointed or employed or promoted in pursuance of law and of the rules made in pursuance of law.” Civil Service I^aw, § 19.

As I view this proposition of the statute, in connection with the whole Civil Service Law, the municipal commission is not required to certify that the persons named in the pay-roll performed the services entitling them to receive the ■ amount set opposite their respective names, or that such persons performed services appropriate t.o the title of the positions • assigned to them, on the pay-roll. It seems to me that it was never intended that any such ' responsibility should rest upon the civil service commission. The only duty imposed upon that commission by the statute, as I construe it, is that they shall certify that the persons whose names appear ripon the pay-rolls are qualified for appointment or employment in the positions assigned to them respectively on the pay-rolls, and that they have been duly and regularly appointed to such positions.

The use of the word “ employed ” in the section relating to certification above quoted does not indicate an intention to place the burden upon the civil service commission of certifying that the persons named on the pay-roll actually rendered service in the positions assigned to them on the pay-roll. The word was used in distinction ,to appointed.” Apparently it was deemed that setting a man to work as a laborer from a registered list of applicants was a mere “ employment,” and could not be dignified with the term “ appointment.” See Collier Civil Service, § IT, p. 105, n. 3.

I am of the opinion that, if a pay-roll is presented to the municipal commission by the head of a department, bearing the name of a- person who it appears from the official roster of the municipal commission has been duly appointed to the position assigned him on said pay-roll, it is the duty of the municipal commission to attach its certificate; and that the full scope and effect of spch certificate is that the commission certifies that such person is qualified for appointment to the position assigned him on the pay-roll, and that he was duly appointed thereto, and no more.

It may be urged against this construction of the statute that it gives opportunity to the heads of' departments to evade the requirements of the Civil Service Law by falsely certifying that persons are entitled to pay in one capacity while actually performing work in another capacity. In answer to this it may be said that every public official can violate his official duty if he cares to run the risk of the penalties which attach to such violation. Aside from the general penalties fixed by law for violation of duty on the part of public officials, I am inclined to the opinion that the , language of section 19 is broad enough to permit the maintenance of an action by a citizen taxpayer against an appointing officer to recover .from him any moneys paid upon-a false certification.

It is also urged in opposition to this application that the municipal commission has a rule under which it reserves the right to refuse to certify the pay-roll upon satisfactory evidence that an employee examined and certified for a position is performing duties not appropriate -to the position. A sufficient answer to this point is that the commission cannot by rule alter or enlarge the power conferred upon it by the statute. It is authorized to make rules for the purpose of carrying out the work intrusted to it by the statute, but it cannot by rules enlarge the scope of its duties; and this is precisely what this rule attempts to do.

It is apparent from the papers used in this motion that the municipal commission and the commissioner of public-works are dealing with each other at arm’s-length. With such relation existing between these two important branches of the city government the city cannot expect to obtain the full beneficial effect of the Oivil Service Statute.

There being no dispute as to the fact that Bedford was duly appointed to the position of foreman of laborers, and his name appearing in such capacity on the pay-rolls certified by the head of the department, it becomes the duty of the municipal commission to affix its certificate; and a peremptory writ of mandamus may issue accordingly.

Ordered accordingly.  