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him, and to be assigned to duty, such board of police commissioners refused his request and adopted the following resolutions: "The appointment of George Sweeley having been declared illegal by the corporation counsel, for the reason that he was not certified by the civil service commission, it is hereby resolved that his services be declined, and the chief, the captains and sergeants of this department are hereby instructed to refuse his services, and each member of the board hereby refuses to administer the oath of office for the above-mentioned reason."

Whereupon, the said Sweeley makes this application for a peremptory writ of mandamus, to be directed to the police commissioners, and each of them, commanding and directing them to administer to him the legal oath of office as a patrolman on the police force of the city of Albany, and to issue to him his warrant of appointment as such patrolman, and assign him to duty.

It is conceded by counsel that the remedy by mandamus, is proper, if the applicant is entitled to the office in question.

The only question raised and argued before me, and the only one I understand that it is desired to have considered, is, as to the effect of the amendment to the Constitution, I have quoted, upon the civil service laws of the State and city, in so far as they relate to honorably discharged veterans of the late civil war, and in particular its effect upon chapter 717 of the Laws of 1894.

It is contended that the amendment to the Constitution referred to does not affect the question, because, it is argued, such amendment is not selfexecuting. A constitutional provision is self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced, and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law. (Cooley on Const. Lim. [6th. ed.] 99, 100.)

And it is asserted that the amendment in question simply lays down principles for future legislation; that it does not prescribe the rules by which it may be enforced, and it is said that the amend ment itself recognizes that fact in the last clause, which reads, "Laws shall be made to provide for the enforcement of this section."

I apprehend that this argument is correct as far as it goes. So far as any affirmative effect is to be given to the amendment in question, it will be assumed that it needs legislation to give it life.

But I cannot assent to the argument, that until the Legislature passes laws to enforce it, it is absolutely a dead letter, and is as if it had never been adopted.

It is possible that if there were no laws upon the subject in existence, at the time of its adoption, upon which it could have a negative or nullifying effect, and none being passed after its adoption to enforce it, that practically it would be as if it had never been adopted, except that no theretofore existing right could be affirmatively enforced in opposition to it. But I cannot agree to the proposition that where there are laws upon the statute book upon a given subject, that a constitutional enactment upon that same subject, subsequently adopted, in direct conflict with it, does not affect it, unless such constitutional enactment contains within its provisions the necessary machinery to affirmatively enforce it, and that if it does not, the pre-existing law, although in terms and principle in direct hostility to the constitutional enactment, continues in force until the Legislature provides the necessary machinery for enforcing, in an affirmative way, such provision of the Constitution.

Because the Legislature, through neglect, or because of the lack of time, after the adoption of the Constitution, has not provided the necessary means to enforce it, I cannot concede that a citizen has any rights which he can enforce contrary to its provisions.

I can conceive of a statute constituting an act which was theretofore lawful, and which people had a right to do, a crime, and yet, when through omission or neglect, no punishment had been prescribed, and none prescribed by any general statute, that a person doing the act so defined to be a crime, could not be punished because no penalty had been decreed, and, therefore, no means provided to enforce the law; nevertheless, the person committing such act would be violating the law; and I do not think that any one would, for a moment, contend that the courts would by their process enforce his claim to do that which was formerly his right to do, but which the statute defined to be a crime.

So that such statute, although no means had been provided to enforce it, would not be a dead letter, but have a negative and prohibitive force and effect. So while a provision of the Constitution may need legislation to enforce its principles, and give them affirmative effect, yet without any legislation such provision may have a negative force, in prohibiting acts in violation of its terms, and nullifying statutes repugnant to its principles, and thus while from lack of legislation its principles cannot be affirmatively enforced, neither on the other hand can those principles be lawfully violated, or any statute violating them be enforced.

I will not discuss what negative effect the amendment in question, standing alone, may have in nullifying or repealing laws in existence at the time of its adoption, which are repugnant to it.

All parts of the Constitution are to be construed together, and in connection with each other.

Section 16 of article 1, of the Constitution provides, amongst other things, as follows: "Such acts of the Legislature of this State as are now in force, shall be continued the law of this State, subject to such alterations as the Legislature shall make concerning the same. But all parts of the common law, and such of the said acts, or parts thereof, as are repugnant to this Constitution, are hereby abrogated."

And in judging of the effect of the amendment under consideration, upon theretofore existing laws, such amendment must be read in connection with section 16 of article 1.

The Civil Service law of the State as it was prior to the adoption of the new Constitution, is, with the exception of the acts that have been passed relative to soldiers, in harmony with the Constitution; the acts relative to soldiers are additions to the Civil Service law, and their repeal, or the repeal of such of them as are repugnant to the Constitution, will not destroy the whole law, but will leave it a harmonious and complete law.

The law under which the applicant claims his appointment to the police force, is a law which entirely relieves honorably discharged soldiers of the late civil war from subjection to the Civil Service laws of the State, in cases where the pay of the position sought does not exceed four dollars a day. And the question that arises, therefore, is, whether such a law is repugnant to the amendment of the Constitution in question.

That leads us to an examination of the meaning and intent of such amendment.

"It is a cardinal rule in the interpretation of constitutions that the instrument must be so construed as to give effect to the intention of the people who adopted it. This intention is to be sought in the Constitution itself, and the apparent meaning of the words employed is to be taken as expressing it, except in cases where that assumption would lead to absurdity, ambiguity or contradiction." (Bl. Const. Law, 65.)

It was the evident intention, by this amendment, to engraft into the organic law of the State the principle of ascertaining the merit and fitness of applicants for appointment in the civil service of the State by examination, and also to provide for the extension of such principle, beyond what was provided for in then existing laws, or permitted by the old Constitution.

And it is apparent that, while it was intended to give veterans the preference, it was not intended that they should be relieved from demonstrating their fitness for official positions by submitting to an examination, but simply to give them a prefer

ence over those not soldiers, who had also had their fitness tested by examination.

It is to be presumed that the framers of the section were acquainted with the existing Civil Service laws of the State and knew that, under them, appointments were made from a so-called "list;" that applicants for appointments were placed upon such list after an examination, and that the relative position or standing that they occupied on such list depended upon the manner in which they passed such examination. And it is to be presumed that, in making use of the language that they did, they had in view such existing laws. (People v. Rathbone, 145 N. Y. 435-38.)

And, therefore, it is plainly to be inferred from the language used, "Shall be entitled to preference in appointment and promotion, without regard to their standing on any list from which such appointments or promotions may be made," that they had in contemplation a list, made up after an examination of the applicants, from which appointments should be made, upon which list the soldier-applicant should secure a standing by examination.

In aiding us to determine what the framers of this section meant by the language used, the proceedings of the Convention are of great assistance. As originally proposed, the section in question read as follows: "Appointments and promotions in the Civil Service of the State, and of the cities, shall be made, so far as practicable, according to merit and fitness, to be ascertained by examinations, which, so far as practicable, shall be competitive. Laws shall be made to provide for the enforcement of this section." (Records of New York Const. Con., page 2438.)

I will not refer to the various proceedings by which this section was afterwards altered, excepting as such alterations refer to the soldiers or sailors of the late civil war.

Under this proposed section, it will be observed that the veteran soldier was not mentioned; that it

applied to all citizens of the State alike.

was

Subsequently, the following amendment proposed, to be added to the end of the section: "Honorably discharged Union soldiers and sailors, who are not otherwise disqualified from appointment or promotion, shall be exempt from the provisions of this section."

This amendment was voted down (same 2444), and then the following substitute was offered: "That honorably discharged Union soldiers and sailors of the late war shall be exempt from civil service examinations, and that all that shall be re quired of them, shall be capacity to perform the service for which they are applicable." This, also, was negatived. (Same 2444).

Thereafter the following amendment was proposed: "Honorably discharged Union soldiers and sailors shall be exempt from such examinations, and shall have preference to such appointments and promotions." (Same 2546.)

soldiers and sailors of the late war to the operations of the civil service law, simply giving them a preference over others whose qualifications had been tested by examination; and the language by which Another amendment was offered in the following they evidenced that intent, while perhaps not so words: "Honorably discharged soldiers and sail- | clear as it might be, still sufficiently expresses it, DICTION IN THE CITY AND COUNTY OF Constitution. It has, however, been decided that those of the governor, the judges of the Supreme fare that each one should be able at all times to do Court and the presidents of the several Courts of whatever the varying circumstances and present exCommon Pleas. The salaries of these officers can-igencies touching the subject involved may require. not, under the Constitution, be diminished during A different result would be fraught with evil." their continuance in office. Those of all other offi

ors who served in the late war, who are not otherwise disqualified for promotion, shall be exempt from the provisions of said competitive examinations." (Same 2547.)

Still another amendment, reading as follows, was offered: "Honorably discharged Union soldiers and sailors of the late civil war, shall be exempt from the examinations required by this section." (Same 2549.)

This section, with the various amendments, was the cause of much debate, which, of course, it is impracticable to reproduce here, showing the desire and intention of those offering the several amendments to exempt soldiers and sailors of the late war from the operation of the civil service laws of the State, and of the proposed section of the Constitution. In the course of the debate, chapter 717 of the Laws of 1894 was referred to, and the lines were sharply drawn between those who desired to entirely exempt soldiers of the late war from the operations of the civil service law, and the principle of ascertaining the fitness of candidates seeking appointment to public office by examination, and those who were willing to give them a preference after they had demonstrated their fitness by being subjected to such examination, over others not soldiers and sailors, whose fitness had also been tested by examination.

This contest eventuated in the offering and adoption of the following provision: "Provided, however, that honorably discharged soldiers and sailors of the United States in the late civil war shall be entitled to preference in appointment and promotion, without regard to their standing on any list from which appointments or promotions shall be made." (Same 2554.)

This amendment being adopted, the president of the convention stated that that disposed of the neces sity of taking a vote upon any of the other proposed amendments, and after amending it by inserting the words "army and navy of the" and the words "citizens and residents of this State," making it read as it now is in the Constitution, it was formally adopted by the convention. (Same 2645.)

It will be seen by this review of the various steps taken in perfecting the section under consideration, and from the defeat of every amendment that proposed to exempt them from the operations of the civil service law, or from examination to test their fitness for office, that it was the evident intention of the framers of the Constitution to subject the

and we must presume that the people who voted for and adopted it, had the same intention in so doing as the Convention which framed it. Such being the intention of the people and the meaning of the Constitution, if. after the first of January, 1895, the Legislature had passed a law relieving all applicants for positions in the civil service of the State, or of any of the cities thereof, who are honorably discharged soldiers and sailors of the late civil war, from the operations of the civil service laws of the State, I think no one would contend but that such law was in conflict with the Constitution, and, therefore, null and void. If a law passed after the Constitution went into effect is unconstitutional and void because in conflict with the Constitution, the same law passed prior to the adoption of the Constitution is "repugnant" to it, and under section 16 of article 1, as hereinbefore set forth, is abrogated.

It follows from this that chapter 717 of the Laws of 1894, being a law which exempts honorably discharged soldiers and sailors from the operations of the civil service law of the State, and from being examined to test their fitness, in cases where they are applicants for positions, the pay of which does not exceed four dollars per day, is in conflict with the provisions of the section of the Constitution in question, and "repugnant" to its principles, and is, therefore, abrogated.

Section 4 of chapter 410 of the Laws of 1884, as amended by chapter 29 of the Laws of 1886, being in harmony with the Constitution, is not abrogated by it, and the law by which it is amended, and by implication repealed (chapter 717 of the Laws of 1894), being abrogated and repealed, it is revivified and again becomes a part of the law of the State.

We thus have without any legislation to carry this section of the Constitution into affirmative effect, but by the force and effect of the provisions of the Constitution abrogating and repealing theretofore existing laws repugnant to it, and continuing in effect those laws not repugnant to it, a civil service law to which the applicant, although an honorably discharged soldier of the late civil war, is subject; under the provisions of which he must be examined to test his fitness for the position he aspires to, and be placed upon the eligible list, where he can be given a preference over all others, not soldiers or sailors, who have also been placed upon such list as the result of the examinations to which they have been subjected.

This conclusion leads to a denial of the application for a mandamus, but as the question is a new one, about which there has arisen differences of opinion amongst persons learned in the law, it is denied without costs; denied not as a matter of discretion, but as a matter of law.

INFERIOR COURTS OF CRIMINAL JURIS

time claimed that a public officer, when once chosen to hold office for a specified term at a fixed compensation, was thereby vested with a property right in the office and in the compensation provided by the Legislature, and that a contract was created between the public and the officer which could not be impaired without doing violence to the Federal

NEW YORK.

Opinion of Louis Marshall, Joseph H. Choate, Elihu Root, William B. Hornblower, Joseph Larocque, Charles C. Beaman and James C. Carter as to the constitutionality of a bill entitled "An act in relation to the inferior courts of criminal jurisdiction in the city and county of New York.

TH

THE power of the Legislature to deal with the offices of police justice of the city of New York involves consideration of such immense importance to the public, and has been so persistently questioned by the present incumbents of those offices, that a careful examination into the nature of the office of police justice is of the first importance. The office of police justice is not one of constitutional creation. It is purely statutory in its origin; the Legislature being authorized by the Constitu tion to establish inferior local courts of civil and criminal jurisdiction. Pursuant to this authority alone, the offices of police justices of the city of New York came into being. Their appointment is vested in the mayor of the city of New York. Their salaries and terms of office and their powers and duties are specified in sections 1541 to 1568 of the New York Consolidation Act. These powers have from time to time been altered by the Legislature. The new Constitution does not recognize these police justices as such. None of the inferior local courts, either of civil or criminal jurisdiction, existing at the time of the adoption of the new judi ciary article, is mentioned or erected into a tribunal superior to the Legislature which created it. The manifest purpose of that article is to reduce the number of constitutional courts to a minimum, to abolish many of those theretofore existing, and to prohibit the creation of courts which can in any manner develop by process of evolution into constitutional tribunals. The Legislature, having thus created these offices, has been in no manner forbidden to further legislate with respect to them or to exercise such authority over the office, as well as over the incumbents thereof, as lies within the legitimate purview of the law-making power.

Foremost among the powers which have been conceded to American legislatures by the most uniform consensus of judicial opinion with respect to this subject is that providing for the abolition of offices of legislative creation, and restricting or enlarging the duties and functions pertaining thereto, and the reduction or abolition of the compensation which is incidental to a public office. It was at one

this view is fallacious; that the relation described does not constitute a contract; neither does an appointment or election to office constitute property in any constitutional sense. Wholesome considerations of public policy lie at the foundation of the adjudications which have asserted these doctrines. Nowhere has the reason been better stated than by Mr. Justice Daniels in Butler v. Pennsylvania, 10 How. (U. S.) 402 (416), where he says: "The promised compensation for services actually performed and accepted, during the continuance of the particular agency, may undoubtedly be claimed, both upon the principles of compact and of equity; but to insist beyond this on the perpetuation of a public policy, either useles or detrimental, and upon a reward for acts neither desired nor performed, would appear to be reconcilable with neither common justice nor common sense. The establishment of such a principle would arrest necessarily everything like progress or improvement in government, or, if changes should be ventured upon, the government would have to become one great pension establishment on which to quarter a host of sinecures. It would especially be difficult, if not impracticable, in this view, ever to remodel the organic law of a State, as constitutional ordinances must be of higher authority and more immutable than common legislative enactments, and there could not exist conflicting constitutional ordinances under one and the same system. It follows, then, upon principle, that, in every perfect and competent government, there must exist a general power to enact and to repeal laws, and to create and change or discontinue the agents designated for the execution of those laws. Such a power is indispensable for the preservation of the body politic, and for the safety of the individuals of the community. It is true that this power, or the extent of its exercise, may be controlled by the higher organic law or Constitution of the State, as is the case in some instances in the State Constitutions, and as is exemplified in the provision of the Federal Constitution relied on in this case by the plaintiffs in error, and in some other clauses of the same instrument; but where no such restriction is imposed, the power must rest in the discretion of the government alone. The Constitution of Pennsylvania contains no limit upon the discretion of the Legislature, either in the augmentation or diminution of salaries, with the exception of cers in the State are dependent upon legislative discretion."

The courts of this State have adopted the same doctrine, notably in Connor v. The Mayor, 5 N. Y. 285; People v. Devlin, 33 id. 372; People, ex rel. Ryan, v. Greene, 58 id. 295-304; Nichols v. McLean, 101 id. 533; Fitzsimmons v. City of Brooklyn, 102 id. 536.

In Nichols v. McLean, Judge Andrews states the rule as recognized in this State to be as follows: "It is true that in this country offices are not hereditaments, nor are they held by grant. The right to hold an office and to receive the emoluments belonging to it does not grow out of any contract with the State, nor is an office property in the same sense that the cattle or land are the property of the owner. It is, therefore, the settled doctrine that an officer acquires no vested right to have an office continued during the time for which he was elected or appointed, nor to have the compensation remain unchanged. The Legislature may abolish an office during the term of an incumbent, or diminish the salary, or change the mode of compensation, subject only to constitutional restrictions."

It has likewise been held in People v. Devlin, supra, that an act changing the compensation of a public officer after he has entered upon the performance of his duties is not an ex post facto law. To the same effect is the decision in Coulter v. Murray. 4 Daly, 506, which related to the act providing for the appointment of police justices in the city of New York, from which the present incumbents derive their authority.

It is, however, urged that section 1543 of the Consolidation Act provides that: "The salaries of police justices appointed thereunder shall be $8,000 a year, which shall not be diminished during the term of office." As has been seen under the authorities above cited, such a provision does not constitute a contract; it is nothing more than a deciaration of public policy made by one Legislature, which has no binding force upon a succeeding legislative body possessed of equal constitutional As was said in Newton v. Commissioners, 100 U. S. 559: "Every succeeding Legislature possesses the same jurisdiction and power with respect to them (public interests) as its predecessors. The latter have the same power of repeal and modification which the former had of enactment; neither more nor less. All occupy in this respect a footing

powers.

In the same connection the court said that "the legislative power of a State, except so far as restrained by its own Constitution, is at all times absolute with respect to all offices within its reach. It may at pleasure create or abolish them or modify their duties. It may, also, shorten or lengthen the term of service, and it may increase or diminish the salary or change the mode of compensation."

As has been seen, there is nothing in the Constitution which prohibits the Legislature from abolishing the offices of police justice of the city of New York. Neither is there anything in the Constitution which prohibits the Legislature from altogether abolishing the compensation which is now fixed by section 1541 of the Consolidation Act. There are but two provisions in the judiciary article touching the subject of the compensation of ju dicial officers. Section 12 declares that the compensation of the judges of the Court of Appeals and the justices of the Supreme Court shall not be increased or diminished during their official terms, and section 15 makes like provision as to county judges and surrogates. The Constitution is silent with respect to all other judicial officers. Hence, the Legislature is absolutely unrestricted in dealing with the compensation of other judicial officers.

But it is urged that section 22 of article VI of the Constitution places the police justices now in office beyond the reach of the Legislature. That section provides: Justices of the peace and other local judicial officers provided for in sections 17 and 18, in office when this article takes effect, shall hold their offices until the expiration of their respective terms."

It may be premised that reading article VI as an entirety it is manifest that this article was not intended to go into effect until January 1, 1896. That purpose is expressed in section after section, and since all its parts are interwoven and interdependent, it would be a most remarkable result if an isolated section of the article should be deemed in force now, while the article in all of its salient features is not to go into effect until a year hence.

But, irrespective of this consideration, there is nothing in section 22 which impairs the right of the Legislature to abolish the office of police justice, or to restrict the Legislature from dealing with the compensation of these offices. This section does not transform a local judicial officer, created by the Legislature, into a constitutional officer. Neither does it in any way deal with the office. That has

of perfect equality. This must necessarily be so in already been done by the Legislature, and no limithe nature of things. It is vital to the public wel- | tations are attached to the legislative power. The

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