62 A.D. 219 | N.Y. App. Div. | 1901
Lead Opinion
The relator, a resident of the borough of Richmond, New York city, an honorably discharged soldier of the United States in the late Civil war, was employed in July, 1898, as warrant clerk in the auditor’s office at a salary of $1,200 a year and was transferred from the borough of Richmond to the borough of Manhattan on December 15, 1899 ; he was discharged from such employment on January 12, 1901, without charges, notice or opportunity to be heard, for the alleged reason that the appropriation available for the maintenance of the department in which he was employed was. not sufficient to provide for the retention of the number employed"there, and owing to “ the exigencies of economy in the public service,” his services were dispensed with, it being averred by the respondent that he was the least efficient man in the bureau and the one who would be the least missed.
After his' discharge the relator commenced a .proceeding for a peremptory writ of mandamus to compel his reinstatement by an order to show cause, upon the return of which the respondent interposed an affidavit in which he alleged that he did not at the time of relator’s discharge know that he was an honorably, discharged soldier; the peremptory writ was denied and the relator withdrew the proceeding. Thereafter, on the 9th day of March, 1901, the
The comptroller had the undoubted right to dispense with relator’s services for the reasons which he assigns, if at the time he did not know that the relator was a veteran, and, therefore, entitled to protection under the provisions of the Constitution. (People ex rel. O'Brien v. Cruger, 12 App. Div. 536; People ex rel. McDonald v. Clausen, 50 id. 286.) Before the comptroller was called upon to recognize the preference to which the relator is entitled, the latter was required to bring the knowledge of his right to preference home to the comptroller. As, however, the status of the relator does not depend upon the knowledge of the comptroller of the fact which entitles the former to a preference, it is sufficient for the relator, even after a dismissal, to bring such knowledge home to the comptroller and accompanying the same with a demand for reinstatement, he is entitled thereto, if, in law, he enjoyed a preference in employment, and has not been guilty of such laches as constitutes a waiver of his legal right. In the present case it sufficiently appears that the relator laid before the comptroller the facts showing that he is a veteran, and accompanied the same with a demand that he be reinstated in the position from which he had been removed. This evidence and the demand was seasonably made, and if the relator was, under the law, entitled to be retained, it became the duty of the comptroller to reinstate him in the position which he had formerly held.
It is said, however, that his application for a peremptory writ of mandamus must be denied for the reason that the opposing papers put in issue a material averment of the moving papers. Such is the established rule of law if an issue is thus raised. The petition upon which the relator bases his application is verbose in statement and contains much irrelevant and unnecessary matter, and this fact’ enabled the comptroller to interpose several denials to the matter averred in the petition. But the matters to which
In order that a denial shall raise an issue it must present an honest dispute as to a material fact requiring determination, otherwise no issue is made. (Matter of Sullivan, 55 Hun, 285.)
The preliminary question, therefore, must be resolved in favor of the relator. This brings us to the main question in the case, which is one not entirely free of difficulty. The Constitution (Art. 5, § 9) and chapter 370 of the Laws of 1899 furnish the authority upon which the relator’s legal rights are to be determined. In Matter of Keymer (148 N. Y. 219) the court held chapter 344 of the Laws of 1895, which provided that competitive examinations for appointment in the civil service should not be deemed practicable or necessary as applied to honorably discharged soldiers and sailors of the late Civil war, for appointment to positions -where the compensation or other emoluments of the office did not exceed four dollars a day, void, as being an invasion of the provisions of the article of the Constitution to which we .have referred. And therein the rule was announced that the measure of preference for veterans was to be found in the constitutional provisions, and that it could not be extended or enlarged. This case reviews the civil service legisla-
This view finds further support in the provisions of section 21 of chapter 310 of the Laws of 1899, which, among other things, provides that, in cities of the first class, if the position held by the veteran becomes unnecessary or is abolished for reasons of economy or otherwise, he shall not be discharged from the public service, but shall be transferred to any branch of said service in such position as he may he fitted to fill, and receive the same compensation therefor. It is manifest from this provision of the statute that the intent of the Legislature was to secure the retention of the veteran in his employment, and, in any event, to retain him in the public service in some position. Language could scarcely be stronger indicating the legislative intent to prefer the veteran in his tenure of employment, and it would seem to be a clear violation,
The express command of the Constitution is that the Legislature shall enact laws for the enforcement of the section which gives to hohorably discharged soldiers their preference. In Matter of Breckenridge (160 N. Y. 103) this provision, as contained in chapter 184 of the Laws of 1898, which, as we have seen, the present law has re-enacted, was' the' subject of construction, and it was therein held that, where the position had been abolished or become unnecessary, he could not be transferred except there was an existing vacancy in the department in which he served; that it was riot the legislative intent that a vacancy should be created for the purpose. of his transference. The court divided upon this subject, the minority holding to the view that the statute was mandatory and compelled his transfer, and the majority holding as. above stated.. It is, therefore, evident that there was no division whatever in the minds of the court upon the question as to the intent of .the Legislature- to give q preference in retention, of the veteran in the public service. Upon this subject the language of the-prevailing opinion is quite significant, i. e., “ The legislative intent was to secure the retention in the public service of the veteran, who is thrown out of office by its abolition, * ■* *. The municipality itself appears to be laid under the obligation to retain the applicant. * * .* The law is capable of a reasonable and perfectly fair construction ; under which the veteran, who loses his office through its abolition, is not to be discharged from the public service if there is in any branch of that service a position, with equal emolument, which he is qualified to fill.”
In that case the position was abolished and its duties were devolved upon other persons in other positions of service in the department. Ho one remained holding or discharging solely the distinct duties attached to the position which was occupied by the relator therein, up to the time of the abolition of the office, and as there was neither position nor vacancy the right which the law conferred upon the veteran entirely failed. In the present case the position of warrant clerk- still remains, its duties are presently performed by sixteen other persons, who are not veterans and who are
If these views are correct, it follows that the relator was improperly discharged, and is, therefore, entitled to a peremptory writ of mandamus to compel his restoration to the position from which he was removed. The order should, therefore, be reversed, with costs and disbursements, and the motion granted, with ten dollars costs.
Patterson and Laughlin, JJ., concurred; McLaughlin and O’Brien, JJ., dissented.
Dissenting Opinion
Certain material allegations set out in the moving papers were denied, and this in and of itself was a sufficient ground for denying the application. (People ex rel. Corrigan v. Mayor, 149 N. Y. 215; Matter of Haebler v. New York Produce Exchange, Id. 414.) For instance, the comptroller denied that he knew, at the time the relator was dismissed, that he was a veteran of the Union army, and in connection with such denial alleged that he had no knowledge of that fact, nor had his attention been called to it by the relator or by any one else. He also alleged that, at the time the relator was dismissed, •“ it was found absolutely necessary to reduce the pay rolls of the Finance Department over $30,000.
In view of the denials contained in the opposing papers, coupled with the affirmative allegations that the dismissal of the relator was made necessary by reason of insufficient appropriation, and that there were no vacant positions to which the relator could be transferred, I do not see how the court could direct the reinstatement of the relator to the position formerly held by him by a peremptory writ of mandamus. The fact that the respondent did not know, at the time of- the dismissal, that the relator was a veteran must.be taken as true (Matter of Haebler, supra), and, therefore, the act of the respondent in removing him was not illegal. (People ex rel. O’Brien v. Cruger, 12 App. Div. 536 ; People ex rel. McDonald v. Clausen, 50 id. 286.) This seems to be conceded in the prevailing opinion; but it is claimed that when knowledge of the fact that the relator is a veteran was brought home to the comptroller, accompanied with a demand for reinstatement, the relator thereupon became entitled to be reinstated ; in other words, an act of the comptroller, legal in the first, instance; was made illegal by information thereafter acquired by him. This reasoning to me seems fallacious. The legal rights of the parties must be determined as of the time when the relator was dismissed, and nothing which either of them could thereafter do could make illegal an act theretofore legal. If it be true that the relator had the right to insist upon a preference in employment, he lost that right by failing to give the comptroller the information prior to his dismissal, and he could not,, after he had been dismissed, regain what he had lost by doing what would have prevented the loss, had he seen fit to act before -the comptroller did.
But I am of the opinion even though the comptroller had knowl
Section 20 of chapter 370 of the Laws of 1899 provides, and this is the only provision of the statute which gives a preference, that veterans “ 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,” and that the employment or retention in the position to which the appointment had been made might be terminated, is perfectly evident from the following section (§ 21), which provides that, in cities of the first class, if the position occupied by a veteran “ shall become unnecessary or be abolished for reasons of economy or otherwise,” the veteran “ shall not be discharged from the public service, but shall be transferred to any branch of the said service for duty in such position as he may be fitted to fill, receiving the same compensation therefor.”
Here the position filled by the relator had become unnecessary and was abolished for reasons of' economy, and if the comptroller had been notified of the fact of the relator’s being a veteran he
For the foregoing reasons I am of the op^mon that the application for a peremptory writ of mandamus was properly denied.
O’Bbieh, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.