In the Matter of the Application of W. HOLDEN WEEKS, Respondent,
JOHN E. KRAFT, President, and WALTER C. BURTON and ELEK JOHN LUDVIGH, as Commissioners, Constituting the Civil Service Commission of the State of New York, Appellants.
APPEAL by the defendants, John E. Kraft, President, and others, constituting the Civil Service Commission of the State of New York, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 1st day of June, 1911, directing that a peremptory writ of mandamus issue requiring defendants to rescind and revoke their action in passing a resolution classifying the position of transfer tax appraiser in the exempt class.
Thomas Carmody, Attorney-General, and Franklin Kennedy, for the appellants.
Julius M. Mayer and A. S. Gilbert, for the respondent.
By chapter 483 of the Laws of 1885, 'An act to tax gifts, legacies and collateral inheritances in certain cases' was passed by the Legislature and approved by the Governor. Under this statute the surrogate appointed appraisers whose duty it was to appraise the property of persons whose estate should be subject to the payment of said tax. These appraisers were not within the provisions of the civil service statute or in any classification at that time adopted by the commissioners. Later this statute was so amended that the tax was called the taxable transfer tax and in certain counties the appraisers called the transfer tax appraisers were appointed by the State Comptroller. Such appointments commenced in about April, 1900. The State Civil Service Commission classified these transfer tax appraisers in the exempt class. During the time from 1900 to 1909 there were several different incumbents of the Civil Service Commission and there were also several different Governors and Comptrollers of the State of New York. It did not occur to them to change the classification; in fact, it was shown by the action of both the Commissioners, the Governors and the Comptrollers that the positions
were properly considered exempt and that it was not practicable to secure competent appraisers by placing them in the competitive class. Some time in November, 1909, Clark Williams was appointed Comptroller of the State of New York by the Governor. He was not elected Comptroller. He took his office on or about November 12, 1909. Twenty days thereafter, December 2, 1909, the then Civil Service Commission changed the classification of the position from the exempt class, which classification it had been in from the time of the adoption of any classification by the Commission, with the approval of the Governors of the State, placing the same in the competitive class. This change was approved by the then Governor shortly thereafter. It appears from the affidavit of John E. Kraft, the President of the Civil Service Commission that this change of classification was made merely or principally upon the opinion of the then Comptroller that examinations were practicable to test the merit and fitness of persons in such positions. Sometime thereafter an examination was held and an eligible list was prepared, but from it as yet no person has been appointed transfer tax appraiser. Thus it appears an entire change was made in the proposed method of appointment of transfer tax appraisers upon the recommendation of a man who had been twenty days in office. On April 5, 1911, on the petition of the present Comptroller of the State, elected, received February 20, 1911, asking to have the Commission reconsider the resolution placing in the competitive class the position of transfer tax appraisers, giving reasons therefor, the Commission passed a resolution changing the classification back to the exempt class. This resolution has not received the approval or disapproval of the Governor. Such classification is entirely inoperative and does not take effect until approved by the Governor. (See Civil Service Law [Consol. Laws, chap. 7; Laws of 1909, chap. 15], § 10, which says: 'Such rules and any modifications thereof shall take effect when approved by the governor. ') Hence, as the law now stands, the position is in the competitive class, and if the change proposed in the classification by the Commissioners is not approved by the Governor it will remain in the competitive class.
With this situation existing, one W. Holden Weeks, who describes himself as a citizen of the United States and of the State of New York, a resident of the borough of Manhattan, city of New York, and a transfer tax appraiser, being appointed in January, 1909, from the exempt class, applied to the Special Term for a writ of mandamus against said State Civil Service Commission, commanding it to rescind and revoke its action in passing the resolution classifying the position of transfer tax appraiser in the exempt class of the classified civil service. The Comptroller's petition was submitted about February 20, 1911, and dated that day; the resolution attacked was passed April 5, 1911, after hearing and consideration, and on April 27, 1911, Mr. Weeks verified his petition or affidavit asking for the writ herein. Return was made thereto by the State Civil Service Commission, and an affidavit was made by the Comptroller giving his reasons why he thought the position should be in the exempt class, and by the President of the Civil Service Commission giving his reasons for the action taken and proposed to be taken. The matter came on before the Special Term, which granted a peremptory writ of mandamus, and the State Civil Service Commission has appealed therefrom.
I think that the application was prematurely made. No change in classification has been effected, and until it has been done the court should not be asked to interfere with one of the Commissions of the State, which is proceeding in its own way to carry out the business of the State which has been intrusted to it by the Constitution and the statutes. The action of the Commission is a recommendation to the Governor, the executive head of the State, which the Governor may or may not approve. Unless he does approve, no change will be effected. The great State writ of mandamus should not be granted upon the application of a citizen who has no interest save that of any other citizen of the State to permit him to attack and direct this State Commission how it should perform its duties, and to reach up to and interfere with the dignified consideration of the Governor of this State of matters pending before him for official action. Mr. Weeks has no direct interest in this proposition. The Comptroller has the absolute power
under the statute now of removing him at any time. No attempt has been made to do so.
I think the application is uncalled for at this time and should not be granted. My attention has not been called to any case where the writ of mandamus has directed the Commission how it should frame its resolutions and what questions it may or may not pass upon, but the aid of said writ has been invoked to change a ...