the class subject to competitive examination were the subordinates of the superintendent of public works, and of the superintendent of State prisons, and among others, clerkships of the kind to which the relator claims to have been appointed. Section 7 provided that, “After the termination subordinate places, clerks and officers; included in of eight months from the expiration of the present session of the Legislature, no officer or clerk shall be appointed, and no person shall be admitted to or be promoted, in either of the said classes now existing, or that may be arranged hereunder pursuant to said rules, until he has passed an examination or is shown to be specially exempted from such examination in conformity herewith." That section was amended by chapter 681 of the Laws of 1894, which amendment provided amongst other things as follows: "It shall be the duty of the said commission to certify to the comptroller the name of every officer, clerk or other person in the public service of the State, in either of said classes, appointed or employed therein in pursuance of law and of the rules and regulations made in pursuance of law, stating in each case the title or character of the office or employment, and the date of the commencement of service by virtue thereof; and, in like manner to certify to the comptroller, the name of each officer, clerk, or other person, in the public service of the State, in either of the said classes, appointed or employed therein in violation of law or of the rules and regulations made in pursuance of law; and to certify to the comptroller, in like manner, every change occurring in any such office or employment forthwith, on the occurrence of the change. It shall be unlawful for the comptroller to draw his warrant for the payment of any salary or compensation to any officer, clerk or other person in the public service of the State, in either of said classes, who is not so certified as having been appointed or employed in pursuance of law and of the rules and regulations made in pursuance of law." The power of the Legislature to make laws, and of the governor and civil service commission to make rules and regulations, which should subject appointees of the superintendent of public works to examinations, and to limit his appointments to those who should pass such examinations and be placed upon the eligible list of the civil service of the State, was challenged in the case of the People, ex rel. Killen, v. Angle, 109 N. Y. 564. It was there held that it was the intention of the Constitution to confer upon the superintendent of public works the power to select and appoint his subordinates "subject only to his sense of duty and the obligations of his oath of office," and that it plainly intended "to leave to the superintendent, exclusively, the determination of the propriety of such appointments, and the sufficiency of the qualifications possessed by proposed appointees. And that the provisions of chapter 354 of the Laws of 1883, and of the rules and regulations adopted by the governor and civil service commission, were limitations and restrictions upon such power of appointment by the superintendent, which the Legislature had no power to impose, and that therefore his subordinates “did not come under the operation of the act creating the civil service commission." The principle of that decision applied as well to subordinates of the superintendent of State prisons, and of the agents and wardens of each prison, and to the clerks of such prisons to be appointed by the comptroller. It will be observed, however, that the civil service law was not declared unconstitutional as a whole, and it can hardly be said to have been declared unconstitutional at all, but simply that it did not and could not include within its limits certain classes of officers; as to all others, it remained upon the statute book a living and effective law, and so remained, with these exemptions from its provisions, down to the 1st of January, 1895. It will be observed that the duty of classifying the various officers and employes of the State, and of making rules and regulations providing for the examination of candidates, and other details, is devolved upon the governor of the State, and that he is to determine how far it is practicable to include in any classification the subordinate places, clerks or officers in the public service of the State. That the civil service commission, so-called, is merely to aid him, as he may request, in the discharge of his duties; he is in law, and in fact, the responsible head of the civil service of the State; he is not only to see that the laws are executed, but he is in addi-did the old Constitution. (See section 3, article 5.) tion, within the limitations of the Constitution and the acts of the Legislature, to make the laws, that is the rules and regulations, by which the civil service of the State is to be governed. The new Constitution, adopted in 1894, contains the same provision as to the appointment of subordinates by the superintendent of public works, as It also contains, however, an entirely new section, being section 9 of article 5, reading as follows: "Appointments and promotions in the civil service of the State, and of all the civil divisions thereof, Pursuant to said act of 1883, the governor of the including cities and villages, shall be made accordState promulgated rules and regulations for the gov-ing to merit and fitness, to be ascertained, so far as ernment of the civil service, and a classification of practicable, by examinations, which, so far as prac ticable, shall be competitive; provided, however, that honorably discharged soldiers and sailors from the army and navy of the United States in the late civil war, who are citizens and residents of this State, shall be entitled to preference in appointment and promotion, without regard to their standing on any list from which such appointment or promotion may be made. Laws shall be made to provide for the enforcement of this section." It is contended by the relator that the same language being used in the present Constitution as in the old, that the same interpretation should be given; while, on behalf of the comptroller, it is contended that the power of appointment given by section 3 to the superintendent of public works is limited by the provisions of section 9 of the same article. This conflict makes necessary both an interpretation and a construction of the Constitution as it now is. Some discussion has been indulged in as to whether the present Constitution is a new Constitution or an amended one. To me it seems to be a matter of little consequence, whether we consider the present Constitution as an entirely new instrument, coming into existence January 1, 1895, or whether we consider it as an amended Constitution; in either event the same rules of construction will govern, for it has been held, "that an amended constitution must be read as a whole and as if every part had been adopted at the same time," and as one law, and effect must be given to every part of it, each clause explained and qualified by every other part." (People, ex rel. Killeen, v. Angle, 109 N. Y. 564-75.) The first rule in interpreting and constructing a constitution is to give to it the effect and meaning by its framers, and by the people who adopted it. And the first rule for ascertaining what that intent the fundamental law. Legislation aims at arranging the mechanism of the State for the benefit of its members, and the question of intention, necessarily, is often of great importance and must be open to judicial inquiry; but the Constitution which underlies and sustains the social structure of the State, must be beyond being shaken, or affected, by unnecessary construction, or by the refinements of legal reasoning. We may be compelled to have resort to such in the presence of contradictions or of meaningless clauses, but not otherwise." (The People v. Rathbone, 145 N. Y. 434-38.) Let us turn to the language of the Constitution. "Appointments and promotions in the civil service of the State, and of all the civil divisions thereof, including cities and villages, shall be made," etc. This language is general, and in itself contains no limitations or restrictions, and is apt language to cover all appointments under the State government without any exception, and “we are not at liberty to presume that the framers of the Constitution and the people who adopted it did not understand the force of language." (The People v. Purdy, 2 Hill, 31.) Standing alone there would be no question but that, under the language of section 9, article 5, just quoted, was included appointments of the kind in question, but we must not lose sight of the rule of construction that all parts of a constitution must be construed together. Section 3 of article 5 confers upon the superintendent of public works the power of appointing his subordinates, and as we have seen, the court of last resort in construing the same language in the old Constitution, held that that was an untrameled and unrestricted power. The relator has invoked the rule that, "Where a clause of a constitution, which has received a settled judicial construction is adopted in the same and meaning was, is, that is to be gathered, if pos- words by the framers of another constitution, it sible, from the plain and ordinary meaning of the words used. will be presumed that the construction thereof was likewise adopted." (Black's Const. Law, 68.) Thus these two sections are brought into apparent conflict and one of the conditions arises, mentioned in the case of the People v. Rathbone, where we are compelled to resort to construction; and when we are, the same rules apply as in construing a statute. "In the construction of constitutional provisions, * * * "The intent of the law-makers is to be sought for. And when it is discovered it is to prevail over the literal meaning of the words of any part of the law. And its intent is to be discovered, not alone by considering the words of any part, but by ascertaining the general purposes of the whole, and by considering the evil which existed calling for a new enactment, and the remedy which was sought to be applied." (People, ex rel. Jackson, v. Potter, While it is true as a general proposition, as stated include, subordinates of the superintendent of pub above, that where a clause from a former constitution is adopted in a new constitution, it is to be given the same construction as was formerly given to it, still I think that rule is subject to limitations and restrictions. All parts of the Constitution are to be read together, and a construction given that will harmonize the several parts with each other, and in construing a clause of it taken from a preexisting Constitution we must see whether there are any provisions in the new Constitution different from those from which the clause in question was taken, and which must be read in connection with it, and whether they in any way enlarge, modify, limit or restrict its meaning. Where the new constitution contains some provisions of the old, and some that are new, I apprehend that in construing such provisions the same rules of construction must govern as apply to amendments to a constitution. In giving construction to the provisions of the Constitution, its history and the conditions and circumstances attending its adoption must be kept in view, and the effect of subsequent amendments are to be determined by the same rules, applicable to the interpretation of statutes. (Sweet v. City of Syracuse, 129 N. Y. 316-30.) We must examine the history of the Constitution and the laws as they previously existed, and the evils, if any, that were intended to be cured by such new provisions. We have examined somewhat the history of the law as it existed prior to January 1, 1895, when the new Constitution went into effect. It is to be pre sumed that in framing the Constitution the convention had in view the then existing laws. (People v. Rathbone, 145 N. Y. 435-38.) Under the old Constitution, subordinate clerks, officers and employes in the civil service of the State were appointed to, and held their positions under radically different laws, some under a law providing for appointments based upon fitness and merit to be ascertained by examination, while the subordinates in the great department of public works and in the State prisons of the State, embracing a large proportion of all the appointees in the civil service of the State, were wholly exempt from any such test. This anomalous condition of the public service under the law, of course, was known to the framers of the Constitution. We must also assume that they knew that the Legislature had passed a law with the intention of making all subordinate clerks, officers and employes in the civil service, subject to civil service regulations; that it was the apparent intent of such law to include, and its language was sufficient to lic works, and of State prisons. That the governor of the State so understood the intent of that law, and classified the subordinates and appointees in such departments, and that the court of last resort held that under the Constitution the Legislature had no power to subject such subordinates and appointees to any such classification, because the same was a limitation upon and a restriction of the power of appointment conferred by the Constitution upon the superintendents of such departments. Bearing these things in mind, it would seem from a reading of these sections of the Constitution, that the framers thereof intended by section 9 to limit or modify the power of appointment conferred by section 3, and that the power of appointment conferred by section 3 is to be exercised, subject to the principles declared in section 9. If, however, these considerations are not sufficient to render the meaning and intent of the Constitution entirely clear, there are other methods of arriving at the meaning of its framers and of the people who adopted it, to which we may resort, and those are receding and considering the proceedings and debates of the convention which framed the instrument under consideration. The proceedings of a convention are not always to be relied upon to determine the intent with which any portion thereof was adopted. Different members of such convention may have diverse reasons for voting for its adoption; and it is sometimes impossible to find from such proceedings that the members united upon any single reason, or had a common interest concerning such clause in the Constitution. (Legal Tender Cases, 110 U. S., 421-43.) Still the proceedings of constitutional conventions have always been resorted to by the courts, not as conclusive and binding upon them, but as persuasive aids to assist them in determining the true intent and meaning of the instruments framed by such conventions. "One mode of construing the Constitution is to take the Constitution as we find it, without reference to the manner in which its different parts were prepared and adopted; another is to look at the proceedings of the convention, and endeavor thereby to discover the probable intention of the framers of the Constitution, as we now find them. In either case we must also look at the actual state of things which existed when the Constitution was framed and adopted." (Clark v. The People, 26 Wend. 599; People v. Purdy, 2 Hill, 31.) And, "where the proceedings point out the purposes of the provisions, the aid will be valuable and satisfactory." (Cooley's Cons. Lim., 3 Ed., 66.) Turning then to the proceedings of the convention, we find that section 9, when first reported from the committee having it under consideration, read as follows: "Appointments and promotions in the civil service of the State, and of cities, shall be made according to merit and fitness, to be ascertained by examination, which, so far as practicable, shall be competitive. Laws shall be made to provide for the enforcement of this section." The gentleman having it more particularly in charge for the committee, Mr. Gilbert, in opening the debate upon the question of its adoption, after discussing the principle of appointments to, and promotions in the civil service, upon merit to be ascertained by examination, said: "This principle as the Constitution now stands cannot be applied to public works and to State prisons. The Court of Appeals has so held in respect to one of those departments, and the principle which applies to one will apply with equal force to the other. So that the committee, and a very large number of petitioners of high character, all concur in this, that we want the principle incorporated into the Constitution, and we want to provide for its application in State prisons and in the public works, as well as in the other departments of the State." (Pages 2438-39, Proc. of Con.) * * * And when the subject was again under discussion, the same gentleman stated: "The Court of Appeals has held that appointments cannot be made in the prison service and in the public works service under the rules of the civil service. The case came up as to one of them, but the same reason that applied to that one obtains as to the others. So that I may say that under the law as it now stands, and under the Constitution as it now exists, the civil service rules cannot be applied to the prison service or to the public works service. I think that is reason enough for the passage of the main proposition." (Pages 2552-53.) Mr. Root said: "As the matter stands to-day, the court of last resort has ruled that the principle of civil service cannot be applied to the important positions in the State prisons and public works department, and the effect of this amendment will be to extend this reform to State prisons and canals." (Page 2559.) upon a trivial excuse that was presented, we voted t down." (Page 2561). Much discussion was had in the convention over the proposition to amend the section as presented to the convention, so as to extend its provisions to all the civil divisions of the State, “including cities and villages," and over that portion thereof which was finally adopted referring to honorably discharged soldiers and sailors; but nowhere do I find that any opposition was made to extending the operations of the civil service law to the canals or public works department and the State prisons of the State, or any answer made to the arguments of Mr. Gilbert or Mr. Root in favor of adopting the proposed section in order that such departments might be subjected to the operations of the civil service laws. After the convention had adopted the Constitu tion as a whole, it adopted and issued an address to the people explaining its work and the different new provisions of the proposed Constitution. Among other things, that address contained the following: "10. We have declared in the Constitution the principle of civil service reform, that appointments and promotions are to be based upon merit, and ascertained, so far as practicable, by competitive examination. We sought by this to secure not merely the advantage derived from declaring the principle but the practical benefit of its extension to the State prisons, canals and other public works of the State, to which, under the existing Constitution, the court of last resort has decided that civil service rules cannot be applied." (Proceedings of Cons. Con., page 2683). I, therefore, take it that the convention had, as to such departments, “a common intent," and intended, by adopting the section in question, to bring the subordinates of the superintendent of public works and of the superintendent of State prisons within the operation of the civil service law, and by the language used intended to, and supposed they had, modified the effect of the language used in sections 3 and 4 of Article V, in reference to appointments to be made by the superintendents of public works, and of State prisons, and had nullified the effect of the decision in the case of The People, ex rel. Killeen, v. Angle. Mr. Lauterbach said: "In behalf of regularity and order in the appointment of the State prison officials and others, as to whom our attention was called during the process of the investigation by the charities committee, I think it would be a serious error on the part of this convention, if, owing to any flippant spirit in which the matter has been considered, or on account of some local interest that might be prejudiced, we go to the people from this convention while our party has announced itself in favor of civil service reform, that in this convention, I merit, to be ascertained as far as practicable, by But enough law is already in existence to enforce the provisions of the Constitution as to the department of public works, to determine this case. As before stated, all parts of the Constitution are to be read together, and the sections under consideration must be read in connection with section 16 of article 1, which 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 Legis-Constitution was framed and adopted, a statute in It seems to me, therefore, that in reading section 3 in connection with section 9, and considering the language used, the history and condition of the law as it was under the old Constitution, taken in connection with the proceedings in the Constitutional Convention, that it was the plain intent of the framers of the Constitution, and of the people who adopted it, that all appointments in the civil service of the State should be made according to examination, and that they intended to extend that principle so as to include the subordinates and appointees of the superintendents of public works and of State prisons; and that the power of appointment conferred upon the superintendent of public works by section 3 was intended to be subject to the principles and limitations contained in section 9. The relator contends, however, that section 9 is not self-executing, and that there has been no legislation to enforce it; that the section itself in terms recognizes the fact that legislation is needed to put it in force, by the clause, "laws shall be made to provide for the enforcement of this section," and that until new laws are made to enforce its provisions, the section in question is of no force and effect, and that appointments are to be made as before its adoption. The same contention was made in the matter of Sweeley, 12 Misc. Rep. 174 (affirmed in the Court of Appeals, not yet reported), and it was there held that pre-existing civil service laws were continued, and that the then relator was subject to them. This case perhaps presents the case in a little different aspect. There it was held that the law under which the then relator sought appointment had been abrogated by the new Constitution, and that there being other laws upon the statute books not in conflict with the new Constitution, which were applicable to the relator's case, that no new legislation was necessary. It is said that such a construction renders unnecessary and meaningless the clause, "laws shall be made to provide for the enforcement of this section." I think that is a mistaken view, for full force and effect can be given to that clause without holding that it is necessary to re-enact all the civil service laws of the State. When we consider, as before stated, that the framers of the Constitution are presumed to have known the laws of the State, and if they did, they must have known that they did not extend to "all the civil divisions thereof, including cities and villages," and that to give full force and effect to that section of the Constitution, additional laws would have to be passed extending and enlarging the existing civil service laws of the State. lature 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 construing the Constitution in connection with pre-existing laws, we must keep in mind that the Constitution was not framed for a people entering into a political society for the first time, but for a community already organized, furnished with legal and political institutions, adapted to all or nearly all the purposes of civil government." And that it was not intended to abolish these institutions, except so far as they were repugnant to the Constitution then framed. (People v. Draper, 15 N. Y. 532.) The members of the Constitutional Convention being assumed to know the nature and effect of then existing laws, and having provided for their continuance, where, in harmony with the new Constitution, we must also assume that they depended upon them to carry into effect the details of the Constitution, being supplemented by such new legis-/ lation as should be necessary. The civil service laws of the State are in harmony with the present Constitution, they are therefore of the same force and effect as if they had been passed after the present Constitution took effect, and can be used, as far as they go, to enforce its provisions. It is also claimed in behalf of the relator, that assuming that it was intended by section 9 to bring the appointees of the superintendent of public works within the provisions of the civil service law, and admitting that the civil service laws are continued in force, that there is still necessity for legislation to bring him within their provisions. To support this contention he relies upon that portion of section 9 in question, which says that the merit and fitness of appointees "shall be ascertained, so far as practicable, by examination." And his contention is that it is necessary for the legislature to determine whether it is practicable to ascertain the merit and fitness of appointees under the superintendent of public works by examination, and that until such determination is made, that there is no means of enforcement as to that department, the principles of section 9. I do not think this contention can prevail. While probably the Legislature has the power under this section to determine what officers and appointees it is practicable to classify under the civil service, and in what cases it is practicable to ascertain the fitness and merits of candidates for positions by examination, still I do not think that it is necessary for the Legislature to act in that respect in order to enforce the application of section 9 to the department of public works, because there was, when the |
