
    William T. Peck, App’lt, v. George Belknap, Imp’ld, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed January 20, 1892.)
    
    1. Municipal cobfobations—Civil sebvice.
    The disqualification under the civil service law applies not only to the individual who has not passed the requisite examination, but also to the city itself. It cannot employ or receive into its service a person not eligible under the law, and an action can be brought by a taxpayer to restrain the city from so doing and the treasurer from paying him for his services.
    
      2. Same.
    A formal contract between an assistant to the lamp committee and the mayor, by which the former was appointed to report as to the lamps unlighted, etc., could not change his relation to the city or transform an •ordinary clerk into an independent contractor. Neither the mayor or common council had any power to employ him unless his name was certified by the board of examiners.
    Appeal from an order of the general term of the fifth judicial department, which reversed a judgment of the special term in favor of the plaintiff and dismissed the complaint
    
      Henry J. Sullivan, for resp’t; John H. Hopkins, for app’lt
    
      
       Reversing 28 St. Rep., 467,
    
   Brown, J.

This action was brought by the plaintiff, as a taxpayer of the city of Rochester, to procure a judgment restraining the mayor of said city from entering into a contract of employment with the defendant Belknap on behalf of the city, whereby said Belknap was to render during a designated period certain services relating" to street lights particularly set forth and enumerated in a resolution of the common council, and to restrain the city clerk and treasurer from drawing upon or paying out to said Belknap from the funds of the city any money under said resolution.

The ground upon which this judgment was sought was that Belknap had not passed the examination which, under the civil service law of the state and the regulations prescribed by the mayor, it was essential he should pass before entering into the public service of the city.

It appeared that about November 1, 1887, the common council -of the city had, by resolution, authorized the employment by the lamp committee of some person to whom the policemen of the ■city were to be required to report the number of street lamps unlighted, and who should keep a book which should contain a record by streets of the gas and electric lamps of the city, and their location, and which should each day show, the number not burning; and pursuant to this resolution, on or about November 15th, said Belknap had been employed- by the lamp committee until April 1, 1888, at a salary of seventy dollars per month, and •on November 19 th he entered upon the discharge of his duties, .and the court found as a fact that he continued to discharge them until the end of the term designated. On December 20, 1887, the common council passed another resolution which directed the mayor to enter into a contract with said Belknap to perform until April 1,1888, the duties specified in the resolution before referred to, and in addition to keeping a record of the unlighted street lamps he was “to perform such other duties as may be connected > with the public street lighting system of the city * * * as may be required by said committee or this common council, and to furnish to said committee and the common council written reports upon any of the subjects aforesaid,” and for which he was to receive as compensation the sum of |313.33 in three equal payments on the first days of February, March and April.

This resolution was vetoed by the mayor on the ground that it was in contravention of the civil service law of the State, but was subsequently repassed over the veto by the common council by a two-thirds vote.

It further appeared that the regulations for the admission of persons into the service of the city prescribed by the mayor and approved by the civil service commission applied to all positions in the public service except to “ election officers, subordinates of the city treasurer, and persons employed by or who seek to enter in the service under the board of education.” That, with that exception, the service was classified as follows: “ Schedule B. (Part one). All officers and members of the police and fire department. (Part two). All other subordinate officers and assistants.” Schedule D. “All persons employed as laborers or day workmen.”

For appointments under schedule D. no examination was required. Applicants for appointments under schedule B. were to be examined as provided in the regulations, and appointments to any positions in part two were to be made from persons whose names were certified by the board of examiners.

It was not disputed that Bélknap’s name had not been certified by the board of examiners, nor that he had never been examined.

The special term decided that the employment of Belknap by the lamp committee, under the resolution of November 1st, and the contract directed to he entered into by the mayor by the resolution of December 20, 1887, were both illegal, and that the payment of any funds of the city as directed by said resolution would constitute waste or injury to such funds within the meaning of chap. 673, Laws of 1887, and gave judgment in accordance with the prayer of the complaint. The general term reversed the judgment and dismissed the complaint on two grounds: First, that the contract directed to be entered into was not an illegal one, and, second, that Belknap was not a subordinate officer, clerk or assistant of the city, but was an independent contractor, and hence not. within the term of the civil service law.

An action against the officers of a municipal corporation to prevent any illegal official act on their part, or to prevent waste or injury to any property or funds of such corporation, .is expressly authorized- by the legislature in the several acts for the protection of taxpayers. Code Civ. Pro., § 1925; chap. 673, Laws of 1887. These acts have very recently received judicial construction in this-court. Talcott v. City of Buffalo, 125 N. Y., 280; 34 St. Rep., 871; Ziegler v. Chapin, 126 N. Y., 342; 37 St. Rep., 490. And whatever difference of opinion existed in those cases with reference to the scope of the laws, the power of the court to interfere on the suit of a taxpayer and restrain illegal official action was not. questioned or denied.

The conclusion of, the general term that the employment of' Belknap was not an illegal act appears to have been founded upon a consideration of the provisions of the charter of the city, and the power there conferred upon the common council “ to provide for and regulate the lighting of the streets and the protection of the public lamps,” and the argument was that as the employment of' some person for the purpose specified was proper and lawful, and the compensation was not extravagant, the pecuniary result to-the taxpayer was the same whether the employee passed the civil service examination or not, and there was no waste of or injury to the public funds. This construction overlooks the illegal character of the official act contemplated, ignores thó civil service law, and justifies its violation.

That it cannot prevail is too plain to need argument to controvert it. Precisely the same question was presented and overruled in the case of Rogers v. Common Council of Buffalo, 123 N. Y., 173; 33 St. Rep., 55, and while not argued hy counsel in this court, was raised by the findings and exceptions and involved in the decision.

That cannot be legal which is forbidden by law, and in respect to the legality of a contract no distinction is apparent between one the subject matter of which is not within the power of ikecommon council, and one within its power but attempted to be made with a person with whom the common council is forbidden by law to contract. The disqualification under the civil service law applies not only to the individual who has not passed the-requisite examination, but also to the city itself. It cannot employ or receive into its service a person not eligible'under the law.

Section 8 of the act, as amended by chap. 410 of the Laws of 1884, provides that after the termination of three months from the passage of that act “ no officer or clerk shall be appointed and no person shall be admitted to or be promoted in either of said classes ” (in the public service of the city) “ until he has passed an examination or is shown to be exempted from such examination in conformity with such regulation,” and in the presence of that plain provision of the statute it is idle to argue the question of the power of the common council to employ as a clerk or subordinate officer one who has not passed the examination required by the regulation prescribed by the mayor of the city.

The second ground adopted by the general term is equally untenable. A formal contract between Belknap and the mayor in which should be set forth the specific duties he was to perform, as they were enumerated with much detail in the resolution of December 20th, could not change his relation to the city or transform an ordinary clerk into an independent contractor.

At the time of the adoption of that resolution he had been rendering service to the city for more than a month under an employment by the lamp committee pursuant to the resolution of November 1st heretofore referred to, and his contract was to be for the same service and at the same wages as specified in the resolution of December 20th, and was to cover the past services and the back pay.

He was under both resolutions an assistant to the lamp committee and" his duties were wholly clerical His employment fell within part 2 of schedule B. of the mayor’s regulations, and neither the common council nor the mayor had any power to employ him unless his name was certified by the board of examiners. His admission into the service of the city was plainly illegal and the attempted contract created no legal liability on the part of the city, and any payments made to him by the city officers under that employment would have been a waste of the city’s funds.

The order of the general term must be reversed, and the judgment of the special term affirmed, with costs.

All concur.  