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In re Application of Simons

Supreme Court of New York, Appellate Division

June 23, 1911

In the Matter of the Application of JACOB SIMONS, Respondent, for a Peremptory Writ of Mandamus
JOHN C. MCGUIRE and Others, Comprising the Municipal Civil Service Commission of the City of New York, and Others, Appellants.

Page 472

APPEAL by John C. McGuire and others, comprising the Municipal Civil Service Commission of the City of New York, and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 14th day of April, 1911, granting the petitioner's motion for a peremptory writ of mandamus.


James D. Bell [Archibald R. Watson with him on the brief], for the appellants.

A. I. Nova [Mitchell May with him on the brief], for the respondent.


The question presented on this appeal is whether the position of probation officer of the Court of Special Sessions of the city of New York, created by chapter 659 of the Laws of 1910, is of such a character as to necessitate its classification in the exempt class of the municipal civil service instead of in the competitive class in which it has been placed by the municipal civil service commission of the greater city of New York, with the approval of the mayor and of the State Civil Service Commission.

The relator, Jacob Simons, who was appointed as one of such probation officers by the justices of said court, in January, 1911, without having passed a competitive examination, was unable to obtain his salary for the month of February, 1911, by reason of the refusal of the municipal civil service commission to certify the payroll, such refusal being based upon the fact that the commission had placed the position in the competitive class. He thereupon moved for a peremptory writ of mandamus to compel the certification of the payroll, and also the reclassification of his position in the exempt class, and after a contested hearing in the court below, an order was made granting the relief sought, from which the municipal and State Civil Service Commissions and the mayor appealed to this court.

Page 473

While there has been some confusion in the decisions of the courts of this State as to the circumstances under which the courts will review the determination of the civil service commissions as to the classification of a given position, and as to the proper remedy applicable thereto, it may now be regarded as settled that in a proper case such revision can be had, and that mandamus is the correct method of securing relief. ( Chittenden v. Wurster, 152 N.Y. 345; People ex rel. Chamberlain v. Knox, 45 A.D. 518; Matter of Blust v. Collier, 62 id. 478; Matter of Peters v. Adam, 56 Misc. 29; affd. on opinion of court below, sub nom. People ex rel. Peters v. Adam, 122 A.D. 898, and affd., 190 N.Y. 567; People ex rel. Schau v. McWilliams, 185 id. 92; Matter of Dill, Id. 106; People ex rel. Coit v. Wheeler, 56 Misc. 289.)

In the Peters case, the court, in commenting upon the holding of the Court of Appeals in the Schau case, to the effect that the courts will not interfere with a given classification where it is fairly debatable, further enunciated what appears to be the correct present rule, applicable to such a question, in the following words: 'But the court [of appeals] also recognized the principle that it remained a question of law whether, in a case where the facts were undisputed and only one inference could reasonably be drawn as to the confidential character of the position, a question of law is presented for the determination of the courts.'

The relator claims, and has been sustained in the court below, that the position of probation officer, by express declaration of the statute creating it, in view of the duties of the office, and under other provisions of law applicable thereto, is a confidential one, and thus falls within the decisions holding that such a position can be properly classified only in the exempt class. While the Civil Service Law does not use the expression 'confidential position,' in connection with those that shall be included in the exempt class, it does provide that, in addition to certain specified offices, 'there may be included in the exempt class all other subordinate offices for the filing of which competitive or non-competitive examination may be found to be not practicable.' (Civ. Serv. Law [Consol. Laws, chap. 7; Laws of 1909, chap. 15], § 13, subd. 4.) Confidential positions

Page 474

are, as matter of law, exempt from examinations, not by force of express statute, but because the courts, in construing the provisions of the Constitution (Art. 5, § 9), requiring merit and fitness to be ascertained by competitive examination only so far as practicable, have held that it is not practicable to determine such merit and fitness as to positions which are essentially confidential in their nature and as to their duties, as the expression 'confidential position' has been or shall be construed judicially when arising as to a given office. (Cases above cited.)

In the Chittenden case one of the first authoritative declarations of the Court of Appeals under the civil service provision of the Constitution of 1894, Judge HAIGHT laid down certain principles which have since proved valuable guides in the administration of this law, Among other things he said: 'In order to determine whether the examination of a candidate for an office is practicable, we must first ascertain the nature and character of the duties of his position. Having ascertained the facts, the question of exemption then, doubtless, becomes one of law.'

In disposing of the question now before this court, it, therefore, becomes necessary to inquire into the duties of the probation officers in question under express statutory provisions, as well as by necessary and reasonable implication as to such further duties as will be cast upon them in the actual conduct and administration of their positions.

Relator's position is one of several additional probation officers created by section 96 of chapter 659 of the Laws of 1910, which was a comprehensive act relating to the inferior courts of criminal jurisdiction in the city of New York, and defining their powers and jurisdiction and providing for their officers. It is pertinent and important to note that the very section creating these additional probation officers and continuing those already in office provides specifically that 'The chief probation officers and all other probation officers shall be deemed the confidential officers of the ...

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