8 N.Y.S. 512 | N.Y. Sup. Ct. | 1889
The statute under which this application is made provides1 that “honorably discharged Union soldiers and sailors shall be preferred for appointment and employment;” and that “age, loss of limb, or other physical) impairments which do not in fact incapacitate, shall not be deemed to disqualify them, provided they possess the business capacity necessary to discharge the duties of the position involved.” The statute, it will be seen, does not provide the person appointed or employed shall be such discharged soldier. The intention of the statute was not to compel the appointment of, but merely to give a .preference in such appointment to, such discharged soldiers. It is not necessary to trust to implication, because the statute, in express terms, recognizes the principle that the applicant must be competent to perform the duties of the office, as well as be an honorably discharged Union soldier. The trustees, in this instance, had other duties to perform, in connection with the selection of a village attorney, besides merely satisfying themselves he was such discharged soldier. The position was an important one. The person selected needed to have at least fair legal attainments, to be strictly honest, and to have peculiarly good common sense and judgment. All these things would, as to this position, go to make up what the statute designates as “business capacity necessary to discharge the duties of the position involved. ” The village might suffer very largely, in damages and costs, if the selection of a proper and competent person was not made for this position. The duty of making such a selection is imposed upon the trustees of the village, and not upon the court. They have made the selection, and now it is claimed the court should review their decision,and should determine whether they have acted honestly or wisely, or as they should have done. Moreover,the court is asked to set aside their decision, and compel them to perform this duty in a particular way,—that is, by discharging the person appointed and employed as village attorney, and appointing and employing the relator. I do not think the court has any such power. The performance of the duty of determining as