Opinion

People ex rel. Balcom v. Mosher

  • 45 A.D. 68
  • 61 N.Y.S. 452
Court
Appellate Division of the Supreme Court of the State of New York
Filed
Nov 15, 1899
Status
Published
Author
Landon
On the bench
Herrick, Landon
Cited by
7 cases

The opinion

Landon, J. (dissenting.):

In construing section 9 of article 5 of the Constitution, so far as needful here, I think it is only necessary to read its plain words. They seem to me to import that “ merit and fitness ” can be ascertained to some extent by examinations; that to the extent that it is *86 practicable thus to ascertain “ merit" and fitness ” it must be done-The Legislature is required to provide for the enforcement of the section. Thus the Legislature is required to prescribe the extent to which it is practicable to ascertain “ merit and fitness ” by examinations. These examinations must be competitive, “ so far as practicable.” The Legislature must determine how far it is practicable. It should give to the word “ competitive” its obvious meaning,, and, therefore, give the preference to the person who “ wins out ” in the competition.

To the extent that the more recent provision of the Constitution specifies the tests of eligibility, or permits them to be specified by the Legislature, to that extent the earlier provision (§ :2, art. 10), giving the power of appointment without specifying such tests of eligibility, must harmonize.

And, therefore, I think the order appealed from should be affirmed.

■ Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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