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People ex rel. Murphy v. Bingham

Supreme Court of New York, Appellate Division

January 15, 1909


Appeal from Special Term, New York County.

Application by the People, on the relation of Francis C. Murphy, for a peremptory writ of mandamus against Theodore A. Bingham, as Police Commissioner of the City of New York. From an order denying the writ, petitioner appeals. Affirmed.

[114 N.Y.S. 703] J. Grattan MacMahon, for appellant.

Theodore Connoly (Thomas F. Noonan, on the brief), for respondent.



The application was for a peremptory writ of mandamus to compel the respondent, as police commissioner of the city of New York, to recognize the petitioner as a telegraph operator with the rank and compensation of lieutenant of police from the 16th day of April, 1907, and to accord to him all the rights, privileges, and emoluments of the position and grade of lieutenant of police.

On the 11th day of April, 1896, after passing a civil service examination, petitioner was duly appointed a patrolman on the police force of the city of New York. After the incorporation of Greater New York and on the 27th day of June, 1900, he was, by an order in writing made by the then chief of police, duly transferred to the central office squad in the borough of Manhattan, and by the same order detailed or assigned to duty in the telegraph bureau, which has since been designated " Bureau of Electrical Service." This detail or assignment was in accordance with a practice sanctioned by rule 10H of the rules and regulations of the police department, which provided as follows:

" The force of the telegraph bureau shall consist of superintendent of police telegraph, assistant superintendent of police telegraph, chief lineman, linemen and battery men, and members of the police force duly assigned thereto, who shall wear such uniform and insignia of office as may be prescribed by the police commissioner."

The claim of the petitioner is that the police force was reorganized by chapter 160, p. 209, of the Laws of 1907, which, among other things, amended section 276 of the Revised Charter of Greater New York (Laws 1901, p. 118, c. 466) by declaring that telegraph operators should have the rank of lieutenants of police, and that as he was then serving in the telegraph bureau under said detail, and had been for about seven years, this constituted him a permanent member of the telegraph force with the rank and salary of lieutenant. The petitioner was not required, under this detail or assignment, to perform duties calling for technical knowledge or special skill. It appears by the affidavit of respondent, which must, for the purpose of this appeal, be accepted as true, that petitioner was not required to send or receive messages by telegraphy, and that he merely operated the telephone switchboard, making connections in answer to telephone calls. The grade of sergeant intervenes between that of patrolman and lieutenant of police, and the petitioner never passed a civil service examination for promotion from patrolman to sergeant or to telegraph operator or lieutenant. It appears that the positions of sergeant and lieutenant [114 N.Y.S. 704] of police were classified in the municipal civil service as competitive at the time chapter 160, p. 209, of the Laws of 1907, became in force, although the office of lieutenant did not come into actual existence until that time; but there was no eligible list of lieutenants. Neither the official title nor rank of the petitioner has ever been changed on the records of the department. He apparently accepted the detail to the telegraph bureau without complaint and has acquiesced therein ever since without protest, receiving and receipting for his salary as patrolman, and bearing that rank and not the rank of sergeant, which was borne by all other members of the telegraph bureau other than patrolmen so detailed.

The learned counsel for appellant, to succeed in this proceeding, must show not only that the amendment made in 1907 to section 276 of the Greater New York Charter was intended to make patrolmen thus detailed or assigned to duty lieutenants of police, but, that being a promotion in rank and in pay, that it could be done by the Legislature without violating the state Constitution, which requires that both appointments and promotions in the civil service shall be made according to merit and fitness, to be ascertained, so far as practicable, by examinations which, so far as practicable, shall be competitive. Section 9, art. 5. The respondent claims that this question has been authoritatively decided adversely to appellant by Campbell v. Partridge, as Com'r, etc., 89 A.D. 497, 85 N.Y.Supp. 853, affirmed 179 N.Y. 530, 71 N.E. 1136.There the patrolman was detailed or assigned to duty in the telegraph bureau on the 2d day of August, 1900, after the enactment of the Greater New York Charter, and on the theory that this was a permanent appointment he contended that by virtue of section 276 of such charter he became a sergeant of police with an increased salary. It was held that this would constitute a promotion and could only be made after a competitive civil service examination.

It is claimed in behalf of appellant that the case at bar is clearly distinguishable from the Campbell Case upon the ground that here the detail or assignment was made before the enactment of the statute under which the claim is made. That is an important distinction, for while it is quite clear that the commissioner of police could not make the promotion without a civil service examination (see, also, People ex rel. Gilhooley v. McAdoo, 108 A.D. 1, 95 N.Y.Supp. 400, affirmed 185 N.Y. 537, 77 N.E. 1194), it does not follow that the Legislature itself, which has here directly given the promotion, if one it be, to those who then were in office, could not do so upon the theory upon which it must be presumed that this was given, that an examination was either unnecessary or impracticable. Of course, it is competent for the Legislature to amend or repeal expressly or by implication and to override the civil service law and the rules regulating appointments and promotions in the civil service of the state and in the political divisions thereof, provided such legislation does not run counter to the constitutional provisions already cited. There are recent decisions which tend to sustain the authority of the Legislature to reclassify public officials so as to change their grade and salary by [114 N.Y.S. 705] either promoting or reducing them without any civil service examination (Fay et al. v. Partridge, 174 N.Y. 527, 66 N.E. 1107, and Sugden v. Partridge, 174 N.Y. 95, 66 N.E. 655); but we deem it unnecessary to decide whether chapter 160, p. 209, of the Laws of 1907, if intended to apply to and to promote the petitioner, would be constitutional in that regard, for we are of opinion that it was not intended to affect patrolmen detailed or assigned to duty in the telegraph bureau.

By virtue of section 273 of the Greater New York Charter (Laws 1897, p. 93, c. 378), which became of force on the 1st day of January, 1898, all of the police forces then existing within the area of the greater city were consolidated into one department and continued under a single management. Section 276 of the Greater New York Charter, as originally enacted, classified the members of the then existing telegraph forces of the former cities of New York and Brooklyn, as members of the police force by the following provision in the enumeration of such force, to wit:

" The members of the telegraph force as specified in section 277 of this act." Laws ...

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