# People Ex Rel. Sweet v. . Lyman

> New York Court of Appeals · December 6, 1898 · 157 N.Y. 368

URL: https://www.frixlaw.com/law-library/cases/3607758

## Case

- **Full name:** The People of the State of New York Ex Rel. William H. D. Sweet, Appellant, v. Henry H. Lyman, State Commissioner of Excise, Respondent
- **Court:** New York Court of Appeals
- **Decided:** December 6, 1898
- **Citations:** 157 N.Y. 368; 1 Liquor Tax Rep. 416; 11 E.H. Smith 368; 52 N.E. 132; 1898 N.Y. LEXIS 588
- **Precedential status:** Published
- **Opinion:** Dissent by Bartlett
- **Judges:** Bartlett, Haight, Martin
- **Cited by:** 62 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3607758

## Opinion text

Bartlett, J.
(dissenting). I agree with Judge Haight for reversal but place my vote on the grounds stated in his opinion and the additional ground based on the civil service provisions of the Constitution (Art. Y, § 9).
The fundamental law commands that appointments and promotions in the civil service shall be made according to
*392
merit and fitness, to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive. It then further commands that the honorably discharged soldiers and sailors 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.
In my opinion, when the name of a veteran is duly reached on the eligible list, he is entitled, under the provisions of the Constitution and the law enacted to carry them out,-to an absolute appointment, and thereafter can be removed only for incompetency or misconduct. (Ch. 821, Laws 1896.)
The provisions for a probationary appointment of three months (Laws 1883, ch. 354, § 2, and rule 12 of the Civil Service Board) are contrary to the letter and spirit of the Constitution, and consequently void. The rule enacted by legislative authority, and as amended in 1896, provides : “ At the end of such term, if the conduct, capacity and fitness of the probationer are satisfactory to the appointing officer, his retention in the service shall be equivalent to his absolute appointment; but if his conduct, capacity and fitness be not satisfactory, he may be discharged at any time.”
If this rule and the legislation upon which it is based can stand, it may be well asked what has become of that protection which the Constitution is supposed to afford the veteran after his merit and fitness have been ascertained by a competitive examination and his name entered on the eligible list?
It comes to this, that he receives his absolute appointment only if his conduct, capacity and fitness are satisfactory to the appointing officer. To my mind, this amounts to a practical repeal of the constitutional provisions to which reference has been made.
If the act of 1883 and the rule framed in pursuance of it stand, the legislature can repeal the act of 1896 and all other acts standing in the way, and appointments will depend upon the whim, the caprice, of an appointing officer if he is disposed to abuse the power with which he is vested.
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It is no answer to say that the law presumes an officer will perform his duty properly.
The civil service policy of the state, which was finally placed iu the Constitution, seeks to do away with this abuse of power and patronage.
I am not content to rest my vote solely on tlie act of 1896.
Martin, J., reads for affirmance. Parker, Ch. J., Gray and Vann, JJ., concur. Haight, J., concurs so far as it relates to the civil service provisions of the Constitution and statutes, hut dissents as to the portion relating to the Veterans’ Act upon the grounds specified in his opinion.
Haight and Bartlett, JJ., read for reversal, and O’Brien, J., concurs.
Order affirmed, with costs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3607758. Public record. Not legal advice.