66 Department of Public Works Art. V, § 3 would be unconstitutional. People v. Angle, (1888) 109 N. Y. 564, 17 N. E. 413, affirming 47 Hun 183, 14 N. Y. St. Rep. 199. That rule was abrogated, however, by the adoption in 1894 of section 9 of this article requiring that appointments and promotions in the civil service of the state . . . shall be made according to merit and fitness,” and it is now well settled that appointments in the department of public works are subject to the regulations of the general civil service laws of the state. "The constitution as it now exists must be read and considered in all its different parts, and each provision must be given its appropriate place in the system and some office to perform, and at the same time all must be so construed as to operate harmoniously. The application of these familiar rules of constitutional construction removes all doubt or difficulty with respect to the question under consideration, and the conclusion must follow that, while the power of appointment and removal is still with the superintendent of public works, it is subject to legislative regulation as to the mode and manner, and is brought within the operation of general laws on that subject.” Per O'Brien, J., in People v. Roberts, (1896) 148 N. Y. 360, 42 N. E. 1082, 31 L. R. A. 399, affirming 91 Hun 101, 34 N. Y. S. 641, 36 N. Y. S. 677; Seeley v. Stevens, (1907) 190 N. Y. 158, 82 N. E. 1095, reversing 119 App. Div. 910, 104 N. Y. S. 1145. Thus, the removal of honorably discharged soldiers holding office in the department of public works is governed by chapter 370, Laws of 1899, which provides that “No person holding a position by appointment or employment in the state of New York, . . . who is an honorably discharged soldier . . . shall be removed from such position or employment, except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges and with the right to such employee or appointee to review by a writ of certiorari.” That statute does not impair, but regulates the mode and manner of exercise of the power of removal vested in the superintendent. Seeley v. Stevens, supra. Legislative control of disbursements of superintendent.— The superintendent of public works is not entirely independent of the legislature in the discharge of the duties imposed on him. Funds are necessary for the performance of those duties and are obtainable only through the legislature. That body may, therefore, direct how money appropriated shall be expended. Thus it may prescribe the rate of compensation to be allowed those employed on the public canals, and chapter 380, Laws of 1889, fixing such a rate, is constitutional. Clark v. State, (1894) 142 N. Y. 101, 36 N. E. 817. Judicial interference with discretion of superintendent.— The superintendent of public works “is an administrative officer. . . . His duties are ministerial, not judicial. In the discharge of the important and responsible duties of his office he is frequently called upon to exercise discretion, and when he honestly and fairly exercises such discretion his conduct is not subject to the control or direction of the courts." He cannot, however, arbitrarily refuse to exercise his discretion in a matter; and where he makes such a refusal, action may be compelled by the courts. Wright v. Shanahan, (1891) 61 Hun 264, 16 N. Y. S. 785. In that case it appeared that Owasco lake had been appropriated by the state as a reservoir for canal purposes and that flushboards had been used on top of the dam at the outlet of the lake for the purpose of storing the water therein, the boards being removed when not needed, as in times of freshet. The defendant, the superintendent of public works, refused, however, to remove the boards at any time and maintained them during freshet though their maintenance at such times caused the waters of the lake to overflow their banks and to seriously damage the plaintiff's land. The court held that the plaintiff was entitled to a mandatory injunction directing the defendant to cause the flushboards to be raised from time to time so as to allow the water to flow over the dam unobstructed during such times as the said boards were not thereon for the purpose of storing water for canal purposes. Art. V, §§ 4, 5 State Prisons; Canal Fund and Board § 4. Superintendent of state prisons; appointment, powers and duties. Prison officers. Clerks of prisons appointed by comptroller. Removal of superintendent. A Superintendent of State Prisons shall be appointed by the Governor, by and with the advice and consent of the Senate, and hold his office for five years, unless sooner removed; he shall give security in such amount, and with such sureties as shall be required by law for the faithful discharge of his duties; he shall have the superintendence, management and control of State prisons, subject to such laws as now exist or may hereafter be enacted; he shall appoint the agents, wardens, physicians and chaplains of the prisons. The agent and warden of each prison shall appoint all other officers of such prison, except the clerk, subject to the approval of the same by the Superintendent. The Comptroller shall appoint the clerks of the prisons. The Superintendent shall have all the powers and perform all the duties not inconsistent herewith, which were formerly had and performed by the Inspectors of State Prisons. The Governor may remove the Superintendent for cause at any time, giving to him a copy of the charges against him, and an opportunity to be heard in his defense. Amendment of 1876, Art. V, § 4; amended, Const. 1894, Art. V, § 4. See also Const. 1846, Art. V, § 4. Legislative control of appointments by wardens.- The power of appointment conferred upon the wardens of state prisons by this section, "subject to the approval of the same by superintendent," is subject to the control of the legislature. People v. Lathrop, (1893) 71 Hun 202, 24 N. Y. S. 754, affirmed, 142 N. Y. 113, 36 N. E. 805. § 5. Commissioners of land office. Commissioners of canal fund. The Lieutenant-Governor, Speaker of the Assembly, Secretary of State, Comptroller, Treasurer, Attorney-General and State Engineer and Surveyor shall be the commissioners of the land office. The Lieutenant-Governor, Secretary of State, Comptroller, Treasurer and Attorney-General shall be the commissioners of the canal fund. The canal board shall consist of the commissioners of the canal fund, the State Engineer and Surveyor and the Superintendent of Public Works. Powers of Officers; Suspension of Treasurer; Inspection Art. V, §§ 6-8 Const. 1846, Art. V, § 5; amended, Const. 1894, Art. V, § 5. Relation to section 6.— Under section 6 of this article the legislature has authority to prescribe the powers and duties of the commissioners of the land office. Rumsey v. New York, etc., R. Co., (1891) 130 N. Y. 88, 28 N. E. 763. § 6. Powers and duties of boards and officers. The powers and duties of the respective boards, and of the several officers in this article mentioned, shall be such as now are or hereafter may be prescribed by law. Const. 1846, Art. V, § 6. Relation to article 5, section 3.- The officers created by article 5, section 3, are not subject to the provisions of this section. Any other construction would render superfluous those parts of section 3 giving the legislature the power to modify the duties imposed by the superintendent of canals on his assistant superintendents and to alter the rules made by him for the use and management of the canals. People v. Angle, (1888) 109 N. Y. 564, 17 N. E. 413, affirming 47 Hun 183, 14 N. Y. St. Rep. 199. Commissioners of land office. By virtue of this section the legislature has authority to prescribe the powers and duties of the commissioners of the land office. Rumsey v. New York, etc., R. Co., (1891) 130 N. Y. 88, 28 N. E. 763. § 7. Suspension of state treasurer. The Treasurer may be suspended from office by the Governor, during the recess of the Legislature, and until thirty days after the commencement of the next session of the Legislature, whenever it shall appear to him that such Treasurer has, in any particular, violated his duty. The Governor shall appoint a competent person to discharge the duties of the office during such suspension of the Treasurer. Const. 1846, Art. V, § 7. § 8. Weighing, measuring and inspecting commodities; offices abolished. All offices for the weighing, gauging, measuring, culling or inspecting any merchandise, produce, manufacture or commodity whatever, are hereby abolished; and no such office shall hereafter be created by law; but nothing in this section contained shall abrogate any office created for the purpose of protecting the public health or the interest of the State in its property, revenue, tolls or purchases, or of supplying the people with correct standards of weights and measures, or shall prevent the creation of any office for such purposes hereafter. 66 Aim and scope of prohibition.— The prohibition of this section was aimed directly at the compulsory maintenance of a host of public officers to inspect and test the quantity and quality of articles with a view to the security of traffic in them. But beyond the scope of that evil the prohibition does not extend. Accordingly, the Act of 1857 (ch. 405), reorganizing the warden's office of the port of New York, the object of which is to provide competent and independent officers to collect and perpetuate testimony in respect to the condition of vessels and their cargoes, for the guidance of parties interested, so far as they may voluntarily act thereupon, or may be justified or required so to do by the law governing the case, is not in violation of this section. Tinkham v. Tapscott, (1858) 17 N. Y. 141. In that case, the court, said: The question is whether the wardens hold office for the weighing, measuring, culling or inspecting of merchandise, produce, manufacture or other commodity in the sense of the constitution. I am of opinion that they do not. The convention did not intend to prescribe the act of examination, or to forbid all official agencies to which such an act was incident. They found that a system had prevailed under the acts of the state, by which many commodities were forbidden to be sold for exportation, and that some were forbidden to be sold at all without the allowance of a public officer; and they found a large number of offices established to execute this system. They abolished all these offices, and forbade the legis lature to recreate them. There were at the same time laws in existence providing for the examination of damaged vessels and their cargoes, similar to those contained in the statute under consideration, but in some particulars less exclusive in their character. These laws provided for an examination of the vessels and cargoes, but for a totally different purpose than the one contemplated by the inspection laws. The latter were intended to protect and preserve the integrity of sales of merchandise and other personal property. The former looked to nothing of that kind. They had no reference whatever to any sale except that of damaged goods, or as to them the officers were to do nothing to affect the interests of buyer and seller. They were merely to ascertain and preserve the evidence as to the cause of the damage and the amount of the sales and the charges upon them for the benefit of absent parties. So as to their other duties. They consisted in the ascertainment of certain facts, and the pronouncing of certain opinions, of interest to parties who were not present to attend to their own concerns. Their design, and the intention of the present revised act, may be expressed to be to facilitate the adjustment of controversies between parties interested in maritime adventures, by means of examinations and entries made at the time and place, as near as may be, where the causes of such controversies occurred. There is scarcely anything in common in the scope and design of the two systems, and I am of opinion that the constitutional prohibition did not at all affect the legal provisions respecting marine surveys which existed when the constitution was adopted, and that it has no reference to the provisions contained in the act under examination." Power of legislature under section.— This section "authorizes the legislature to enact statutes to compel the use of correct weights and measures by persons dealing with the public, and there is no restriction in the constitution upon the power of the legislature to compel persons to pay for reasonable and necessary unsolicited services rendered to carry into effect such statutes." Ford v. New York Cent., etc., R. Co., (1898) 33 App. Div. 474, 53 N. Y. S. 764. Furthermore, "the legislature may delegate power to a municipal corporation reasonably to regulate by ordinance the compulsory inspection of weights and measures, fix reasonable fees therefor, and provide that such fees shall be a debt, though the services were unsolicited, payable by the person for whom the inspection is made to the inspector." Ford v. New York Cent., etc., R. Co., (1898) 33 App. Div. 474, 53 N. Y. S. 764. See also Ford v. Standard Oil Co., (1898) 32 App. Div. 596, 53 N. Y. S. 48; People Rochester, (1887) 45 Hun 102. Civil Service Art. V, § 9 9. Civil service. Preference to honorably discharged soldiers and sailors. Appointments and promotions in the civil service of the State, and of all the civil divisions thereof, including cities and villages, 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; 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. Const. 1894, Art. V. § 9. I. In general, 393. II. Appointment and promotion, 395. III. Examinations, 396. IV. Veterans, 399. I. IN GENERAL. Relation to article 5, section 3.- Since by article 5, section 3, the superintendent of public works is vested with the exclusive power to appoint and remove his subordinates, the rule formerly obtained that the civil service laws of the state did not apply to appointments made by that official, any limitation on his discretion to appoint being regarded as in derogation of his constitutional power. People v. Angle, (1888) 109 N. Y. 564, 17 N. E. 413. That rule was abrogated, however, by the adoption of this section and it is now well settled that appointments in the department of public works are subject to the general civil service laws of the state. "The constitution as it now exists must be read and considered in all its different parts, and each provision must be given its appropriate place in the system and some office to perform, and at the same time all must be so construed as to operate harmoniously. The application of these familiar rules of constitutional construction removes all doubt or difficulty with respect to the question under consideration, and the conclusion must follow that, while the power of appointment and removal is still with the superintendent of public works, it is subject to legislative regulation as to the mode and manner, and is brought within the operation of general laws on that subject." Per O'Brien in People v. Roberts, (1896) 148 N. Y. 360, 42 N. E. 1082, 31 L. R. A. 399, affirming 91 Hun 101, 34 N. Y. S. 641, 36 N. Y. S. 677. Thus, the removal of honorably discharged soldiers holding office in the department of public works is governed by chapter 370, Laws of 1899 which provides that " no person holding a position by appointment or employment in the state of New York, who is an honorably discharged soldier . . . shall be removed from such position or employment, except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges and with the right to such employee or appointee to review by a writ of certiorari." That statute does not impair, but regulates the mode and manner of exercise of the power of removal granted the superintendent of public works by article 5, section 3. Seeley v. Stevens, (1907) 190 N. Y. 158, 82 N. E. 1095, reversing 119 App. Div. 910, 104 N. Y. S. 1145. |