People ex rel. Moriarty v. Creelman

152 A.D. 147, 136 N.Y.S. 811, 1912 N.Y. App. Div. LEXIS 8499

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 11, 1912
• Status: Published

Opinions

Laughlin, J.:

The record does not show when the bureau of fire prevention was established, or when the position of inspector was created. It appears, however, that the examination to which the relator desires admission is the first that has been held by the municipal civil service commission for the position. The relator was appointéd to the position temporarily on the 15th day of March, 1912, and it is fairly to be inferred that the bureau and position had then recently been established and created under the general authority conferred upon the fire • commissioner by section 12Y of the Greater New York charter (Laws of 1901, chap. 466, as amd. by Laws of 1911, chap. 899) “ to organize the fire department into such bureaus, as may be convenient and necessary for the performance of the duties imposed upon him,” and which, as amended in 1911, also expressly provided for a bureau of fire prevention. Evidently, shortly before the creation of the bureau, this section was amended by chapter 899 of the Laws of 1911, which took effect on the 19th day of October,. 1911, and shortly after the- creation of the bureau, this section was amended by chapter 458 of the Laws of .1912, which became of force on the 18 th day of April, 1912, so as expressly to provide that the fire commissioner shall establish a bureau of fire prevention to perform the duties and 'exercise the powers with respect to the prevention of fires, which are devolved upon the fire commissioner by law or ordinance; ánd the fire commissioner was thereby authorized to appoint an official .to have charge of the bureau and to be known as the chief of the bureau, and “ such other officials and subordinates in each borough as maybe necessary.” By the amendment of 1912 the Legislature also provided that in the performance of their official duties, all officers and employees of the bureau of fire prevention “shall have the powers and perform the duties of peace officers, but their power to make arrests and to serve process in criminal actions shall be restricted to cases arising under laws or ordinances relating to fires, fire perils and fire prevention.”

On the 20th day of March, 1912, a public notice in the name of the municipal civil service commission, signed by its secretary, was given that the commission would receive applications for the position of inspector, bureau of fire prevention, grades 2 and 3, from that day until the third day of April thereafter, and that application blanks would be mailed upon request; and with respect to the subjects of examination, the rating, the experience required, and the duties to be performed, and the eligibility of applicants as to age, and with respect to the number of positions and salaries it provided as follows:

“The subjects and weights of the examination are as follows: Experience, 3; Report, 1; Duties (special practical paper), 3; Duties (application of laws), 3.

“Seventy per cent is required on each of the 'Duties ’ papers and 70 per cent on all.

“ The duties of the Inspector will be to inspect buildings, with a view to noting all hazardous conditions of construction, occupancy and use as loft, shop, factory, tenement, theatre, etc., to ascertain sufficiency of means of escape; to investigate complaints, or reports, of officers of the Fire Department, as to fire risks, and to recommend such proper safeguards as may reduce or prevent fire dangers.

“The candidate should have had experience as builder, architect or inspector, together with a knowledge of fire breeding causes, electric wiring, explosive materials, fire protection devices, means of extinguishing fires, methods of inspection and familiarity with the laws of the Bureau of Buildings, Tenement House, Labor and Fire Prevention and Municipal Explosives Commission, so far as they affect inception of fires and protection of life.

“ Physical examination will precede mental. Dates will be announced later.

“Minimum age is 25; maximum age is 45. ¡Numerous appointments will be made.. Salaries; $1,200, $1,500, $1,800 per annum.”

The relator was twenty-three years of age on the 26th day of March, 1912. He obtained an application blank and duly filled it out, stating truthfully his age, and subscribed his name and attempted to file it with the commission; but it was rejected, solely, upon the ground that he was under the age of twenty-five years.

The questions presented by the appeal are, whether the municipal civil service commission was authorized by law to prescribe a minimum age as a condition precedent to admitting an applicant to the' examination, and if so, whether the commission took the requisite action to adopt a regulation prescribing a minimum age, and if so, whether the exercise of the authority and discretion vested in the commission has been so arbitrary and unreasonable as to render its action illegal.

, The Constitution and laws of this State recognize, and at common law it was the rule, that for all ordinary purposes of transacting business, holding public office and discharging the duties of citizenship, full competency arid discretion are attained at the age of twenty-one years. (See Const, art. 2, § 1; Pub. Off. Law [Consol. Laws, chap. 47; Laws of 1909, chap. 51], § 3.) A higher minimum limitation of eligibility for certain public offices has been prescribed by the Constitution and by many statutory enactments (See Const, art. 4, § 2; Greater N. Y. Charter, § 1353; Inferior Criminal Courts Act [Laws of 1910, chap. 659], §§ 13, 52, as amd. by Laws of 1912, chap. 464), and in some instances a maximum age has been prescribed. (Greater N. Y. Charter, §§ 284, 734, as respectively amd. by Laws of 1912, chaps. 480, 462; Const, art. 6, § 12.) With respect to positions in the civil service of the State the Legislature has not prescribed either minimum or maximum limitations; but the State Civil Service Commission, by virtue of the authority conferred by the Legislature by section 10 Of the Civil Service Law (Consol. Laws, chap. 7; Laws of 1909, chap. 15), which authorizes the Commission to “from time to time make rules for the classification of the offices, places and employments in the classified service of the State, and from time to time rules for the classification of the offices, places and employments in such civil divisions thereof, except cities, as after due inquiry by the commission shall be found practicable, and for appointments and promotions therein and examinations therefor, not inconsistent with the Constitution and the provisions of this chapter,” and to “amend the same from time to time,” has prescribed in subdivision 3 of rule IX that no application for examination shall be accepted unless the applicant is within the age limitations fixed by the Commission for entrance to the 'position to which he seeks to be appointed, and rule XXIII provides that the Commission shall prescribe and enforce suitable regulations for carrying into effect the provisions of said rules and those of the Civil Service Law and of section 9 of article 5 of the Constitution. Although the authority to make rules is vested in the State Civil Service Commission, the rules do not take effect until approved by the Governor. (Civil Service Law, § 10.) By subdivision 1 of section 6 of the Civil Service Law it is provided that the rules of the State and municipal commissions, prescribed pursuant to the provisions of that law, shall have the force and effect of law. Section 10 of the Civil Service Law also provides that “ Subject to the provisions of this chapter and of the rules established thereunder, the commission shall make regulations for and have control of examinations for the service of the State, and the civil divisions thereof, except cities * *

It has been assumed by the State Civil Service Commissioners, and, so far as the reported cases show, their action has been acquiesced in without question, that by virtue of the statute and of the rule herein quoted they were vested with authority and discretion to prescribe minimum and maximum age limitations for applicants for admission to examinations, and in some instances they prescribed the minimum age as fourteen years and in others twenty-five years, or under and over majority, and for all positions not otherwise prescribed they have prescribed generally the minimum age as twenty-one years, with no maximum limit. (See Regulation IV, subd. 5, State Civil Service Regulations.) The municipal civil service commission has prescribed, by regulation entitled “ Age Limitations,” a minimum limitation of eighteen years for the positions of clerk, second grade, stenographer and typewriter, axeman and junior draughtsman, and twenty-three years for patrolman, thirty years for police matron, and twenty-one years for fireman, prison keeper and police doorman, and twenty-one years “ for all other positions Unless otherwise prescribed,” and with respect to most of these positions it has also prescribed a maximum age limitation, which in some instances was also fixed by statute.

By section 11 of the Civil Service Law the municipal civil service commission, is authorized, subject to the approval of the mayor and of the State Civil Service Commission, to “Prescribe, amend and enforce rules for the classification of the offices, places and employments in the classified service of such city, and for appointments and promotions therein and examinations therefor; and for the registration and selection of laborers for employment therein, not inconsistent with the Constitution and the provisions of this chapter,” and to “ amend the same from time to time.” Pursuant to these statutory provisions a rule for the municipal civil service of the city of New York was adopted which provides as follows: “Where the duties of any classified position are of a character requiring the appointment of persons with particular' limitations of age the Commission may, subject to the provisions of the Civil Service Law relating to veterans, fix such limitation by Regulation.” (Municipal Civil Service Regulation, VII, subd. 6.) Said section 11 of the Civil Service Law also provides that, subject to. the provisions of the chapter in which said section is contained, and of the municipal civil service rules, “ the municipal commission of any city shall make regulations for and have control of examinations and registrations for the service of such city, and shall supervise and preserve the records of the same.”

No decision is cited in which the authority of the State or municipal civil service commission to prescribe minimum and maximum age limitations has been considered, and we have found none, with the exception of People ex rel. Kittenger v. Board of Civ. Serv. (20 Misc. Rep. 217), in which the relator was a veteran protected as to age by statutory provisions which are now section 21 of the Oivil Service Law.

It is manifest that the Legislature possesses authority to prescribe minimum and maximum age limitations with respect to persons entering the State and municipal civil service, and if this were not so the validity of numerous statutes that have been enacted on this subject would doubtless have been brought in question, instead of having been acquiesced in as constitutional (See People ex rel. Rossner v. Scannell, 49 App. Div. 244; People ex rel. Smith v. Creelman, 149 id. 716), and any authority it possesses in this regard doubtless may for the purpose of administration be delegated. (People ex rel. Percival v. Cram, 50 App. Div. 380; reversed on another point. 164 N. Y. 166; Opinion of the Justices to the House of Representatives, 138 Mass. 601; Village of Saratoga Springs v. Saratoga G., etc., Co., 194 N. Y. 123; People ex rel. Joline v. Willcox, 129 App. Div. 267; affd., 194 N. Y. 383.) It thus appears that it has for a long time heen assumed that the Legislature delegated some authority and discretion to the State and municipal civil service commissions, with respect to minimum and maximum age limitations, and this has been acquiesced in, not only by the Legislature, but apparently by the public and by those directly interested and affected thereby. It is evident that there should be some limitation in these respects, for otherwise those manifestly too old to be depended upon to perform public duties and, where the position is not a public office requiring majority for eligibility, young children would be entitled to enter the examinations. I am of opinion, therefore, that the court should hesitate before declaring that it is not competent for the civil service commissions to prescribe minimum and maximum age limitations where the Legislature itself has not done so. I am of opinion, however, although there is no precedent on the precise point, that any legislative authority or discretion vested in the commissioners with respect to the minimum and maximum age limitations, must be exercised with due regard to the rights of citizens who have attained their majority and are otherwise qualified to enter the public service, and if the commissioners make a regulation arbitrarily without any reasonable basis by which citizens are precluded from entering the examination the regulation should be declared to be illegal and the commission should be commanded to disregard it. (See People ex rel. Schau v. McWilliams, 185 N. Y. 92; Matter of Simons v. McGuire, 204 id. 253; Baird v. Supervisors, etc., 138 id. 95, 112.)

In so fair as the duties of the position in question are the same as the duties performed by patrolmen, the action of the commission in prescribing a minimum age limitation of twenty-five years, when the minimum age limitation it has prescribed for patrolman is only twenty-three years, is unreasonable and cannot be sustained. The theory upon which :it is sought to sustain the minimum limitation of twenty-five years is that three examiners in the employ of the commission consulted with the fire commissioner and the chief of the bureau of fire prevention, with respect to the duties of this position, by direction of the chief examiner of the commission, who was authorized by subdivision 3 of rule VII of the municipal civil service rules to consult “when necessary, with appointing officers concerning the qualifications required for particular positions,” and they advised that “ they did not think that men under twenty-five years of age would as a general rule, possess ” the experience specified in the published notice of the commission herein quoted, “ and recommended in consequence that applications be not received from men under twenty-five years of'age,” and the three examiners, in their report to the chief examiner, recommended such limitation, which was approved by him and by the president of the municipal civil service commission. I am of opinion that this was an arbitrary limitation,' and that it does not rest upon any proper basis.

The .commission would doubtless have a right to require a reasonable practical experience to fit the applicant for the duties, as a condition of admitting him to the examination; but it is quite evident that that cannot be accomplished by this age limitation. There is nothing in the nature of the duties to afford a reasonable basis for a determination in advance of an examination that no person can possibly be qualified to perform the duties unless he has attained the age of twenty-five years. Indeed the reason assigned for prescribing this limitation is not that no person could possibly have had proper experience before attaining such age, but that ordinarily they would not have it. In the case of a policeman, it may fairly be said that mature age is required for the exercise of the authority and discretion with which he is clothed and vested, but there is nothing in the nature of the other duties of such inspectors upon which it may be said that no person who has attained his majority can be qualified to properly discharge the duties of the position.

Moreover, it would seem that an inspector in the bureau of fire prevention becomes a member of the fire, department, and if so the Legislature itself in section 734 of the Greater New York charter (as amd. by Laws of 1907, chap. 602), has prescribed the minimum age of eligibility as twenty-one years, and if that provision he applicable it would not be competent, in any event, for the municipal commission to prescribe a different age. Ho argument of counsel has been based on the provisions of that section, nor has the attention of the court been drawn thereto by the points, or on the argument. It is, however, in the same title and chapter of the charter as said section VPi which authorizes the creation of the position in question and it provides, among other things, that “Ho person shall be appointed to membership in the fire department * * * who is not over the age of twenty-one and under the age of thirty years, except that after a person’s name is placed on the eligible list, he may he appointed while his name continues on the same list, although meanwhile he may have attained such age. ” By chapter 462 of the Laws of 1912, which took effect on the 18th day of April, 1912, said section was amended so as to prohibit the appointment of a person “who is not over the age of twenty-one, and at the' date of the filing of' his application for civil service examination was under the age of twenty-nine years.” Unless there be some other statute which we have not found, inspectors of the bureau of fire prevention, which is a bureau of the fire department, are members of the fire department regardless of whether they become members of the uniformed force — on which point we are not informed — and it would seem that the Legislature itself has determined the minimum and maximum age of eligibility and did not intend to vest authority in the commission to further limit eligibility within the ages specified in the statute.

It does not appear that the minimum age of twenty-five years was prescribed by any regulation adopted by the commission, as would be required to make it effective (See People ex rel. Carroll v. Civil Service Bd., 5 App. Div. 164; People ex rel. Van Petten v. Cobb, 13 id. 56), for the only adoption of the regulation was the approval of the report of the examiners by the president of the commission; but if we were to dispose of the appeal upon that ground, the objection might be removed and the other questions, which have been fully argued, would arise again. I am of opinion, therefore, that the appeal should be disposed of upon the broader ground that the commission was not vested with authority or discretion to fix the minimum age limit for this position at twenty-five years, and that, therefore, the relator was entitled to enter the examination.

It follows that the order should be reversed, with ten dollars costs and disbursements, and a peremptory writ of mandamus should- issue, requiring the commission to accept the relator’s application and to admit him to the examination.

Clarke and Dowling, JJ., concurred; Ingraham:, P. J., and Miller, J., dissented.