85 N.Y.S. 406 | N.Y. App. Div. | 1903
Lead Opinion
The facts involved in this appeal are not in dispute, and as they are fully and correctly set out in the opinion of Mr. Justice Laughlin it is unnecessary to restate them. Under the statute the position held by the relator having been abolished and his name returned as an employee suspended without pay, it was the duty of the municipal civil service commission to determine whether the duties of the newly created positions were the same or similar to those performed by the relator in the position previously held by him. If they were similar, then the relator was entitled to have his name certified to and be appointed by the president of the borough to one or the other • of such new positions — otherwise not. (Revised Greater N. Y. Charter [Laws of 1901, chap. 466], § 1543.) The municipal civil service commission determined that the duties of the newly created positions were not similar to those performed by the relator in his former position and refused to certify his name. Therefore the president of the borough' had no right' to make the appointment. The act of the commission in making this determination was quasi judicial in character. It necessarily required the commission to pass upon questions of fact and involved the exercise of judgment upon its part, and this, as it seems to me, was the end of the matter. It is a universal rule that in the discharge of duties involving the exercise of judgment or discretion a public official must be left free to act and cannot, by mandamus, be compelled to act one way or the other; in other words, in such cases the courts
Here, from the very nature of things, the municipal civil, service commission must have exercised its judgment upon the facts as to. whether the duties of the positions referred to were similar, and its conclusion cannot be reviewed by mandamus. To hold otherwise is to nullify the statute which confers upon the commission the duty of making the determination by substituting in its place a court or jury to pass upon the facts, and this the court ought not to do in the absence of legislative authority.
The case in principle is precisely like People ex rel. Sims v. Collier (175 H. Y. 196), and upon reason as well as upon the strength of this authority it seems to me that the order appealed from should be reversed and the Writ quashed, with fifty dollars costs and disbursements.
Van Brunt, P. J„ concurred; Patterson and Laughlin, JJ., dissented.
Dissenting Opinion
This proceeding was instituted for the purpose of procuring the reinstatement of the relator to a position in the municipal civil service which was abolished, or his appointment to a corresponding position, or one of which the duties were the same or similar. On
On the 22d day of January, 1902, the president of the borough notified the relator by a letter that the position held by him was abolished, upon the ground that it was no longer deemed necessary,
The appellants contend that the president of the borough cannot be required to appoint the- relator because the position is already filled and the occupant is not a party to this proceeding and will not be bound thereby. The notice of the application for the writ was addressed to the occupants of these respective positions and the papers were served upon them. They appeared by the corporation counsel in opposition to the motion. On the 1st day of August, 1902, during the pendency of the proceeding, the municipal civil service commission certified one Washington W. Weeks, a veteran, for appointment to the position which has now been awarded the relator. He was appointed thereto and still holds the position. Weeks was called as a witness upon the trial of the issues of fact. He received and accepted service of notice of the application for the writ based on the findings of the jury, and appeared generally by the corporation counsel without having, so far as the record shows, made any special objection that he had not been given sufficient notice to be bound by the proceeding. We have held that where the right to a position may be determined by mandamus, and it has been filled by an appointment which the relator claims is illegal, the occupant should be made a party to the proceeding in order that he will be bound by the determination, and that the taxpayers will not be obliged to pay two salaries or to further litigate the right thereto (Matter of Jones v. Willcox, 80 App. Div. 167, 169, and cases cited), but it is not essential that the occupant should be named in the title of the proceeding, for the mandamus, if awarded, would not run against the occupant. It is sufficient that he have notice of the proceeding and an opportunity to present any evidence of his right to hold it as against the relator. It is sufficient, therefore, in such cases, where the occupant is not required to do anything in the event that the writ is awarded, that the notice of motion or order to show cause be addressed to and that the papers be served upon him. The occupant Weeks having been appointed pending the liti
The important question presented by the appeal is whether the relator has a remedy by mandamus. It is claimed, in effect, by appellants that the provisions of said section 1543 authorize the municipal civil service Commission to determine whether the duties of a newly created position are the same or similar to those previously -performed by an employee whose position has been abolished, and that their determination in this regard is not subject to review. This brings us to a consideration of the provisions of the statute, which are as follows:
“No regular clerk or head of á bureau or person holding a position in the classified municipal civil service, subject to competitive examination, shall be removed until he has been allowed an opportunity of making an explanation; and in every case of a removal the true grounds thereof shall be forthwith entered upon the records of the department, or board or borough president, and a Copy filed with the municipal civil service.
The right to reinstatement to the same office, position or employment, or. a corresponding or similar office, position or employment, if there be any need for his services in such capacity within one year, is clearly given to the suspended employee by this statute. The facts from which this statutory right flows have been found by the jury in favor of the relator, and are amply supported by the evidence. We have, therefore, the case of a clear legal right, for the enforcement of which the writ of mandamus is the ordinary remedy. It remains to be seen whether, on account of the other provisions of the section, the courts are powerless to enforce this statutory right. The Legislature undoubtedly intended that the municipal civil service commission should in such case inquire into the facts as to the duties of the old and new positions and classify and certify the suspended employees for reappointment according to whether the duties of the newly created positions, or of any other corresponding office or' position which he claimed are the same or similar, and the orderly execution of the statute would seem to require this. But they were vested with no discretion. If the facts upon which the right depends exist, it is their duty to certify his name for appointment, and it is the duty of the appointing power to appoint him whether his name be thus certified or not. It is unlike the case of a physical or mental examination, which is administrative in its character and cannot be fully laid before the courts for review. (People ex rel. Mack v. Burt, 65 App. Div. 158; Matter of Allaire v. Knox, 62 id. 29; affd., 168 N. Y. 642; People ex rel. Buckley v. Roosevelt, 19 App. Div. 431; Matter of Walker v. Maxwell, 68 id. 196 ; Keim, v. United States, 177 U. S. 290.) If the duties were in fact the sanie or similar, they had no alternative but to certify the relator as eligible for appointment before making a certification from any other eligible list. The performance of this duty, in which they exercised no discretion, is not administrative and is quite unlike the determination of the question as to whether a particular position shall be subject to competitive
(Matter of Jones v. Willcox, 80 App. Div. 167.)" Where, however, a clear legal right exists and there is no other adequate remedy, it is
It follows, therefore, that the order should be affirmed, with fifty dollars costs and disbursements.
Patterson, J., concurred with Mr. Justice Laughlin in the conclusion reached by him.
Order reversed and writ quashed, with fifty dollars costs and disbursements.
Sie.
Concurrence Opinion
I concur with Mr. Justice McLaughlin in the result. It would .seem to be a case where in the light of the facts now disclosed the commissioners should reconsider their decision, but even that I do not think we can compel by mandamus.