188 N.Y. 489 | NY | 1907
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *491 Section 1571 of the Greater New York charter, amongst other things, provides as follows: "The coroners *492 in each borough shall have an office in said borough and shall appoint a clerk who shall receive an annual salary to be fixed by the board of estimate and apportionment and the board of aldermen, and such and so many assistant clerks as shall be provided for in the annual budget. They shall also appoint a stenographer in each borough," etc.
Under and in accordance with the terms of this provision the relator was appointed and entered upon the discharge of his duties as clerk to the coroner of the borough of Richmond. Concededly he was a member of a volunteer fire department in the county of Richmond at the time of its disbandment on November 1st, 1905, and as such came within the provisions of section
There was no evidence that relator held "the position of private secretary, cashier or deputy," and, therefore, came within the exceptions to the limitation upon the right of removal expressed in the section as above quoted.
Thereafter concededly he was removed and dismissed from his position without any hearing whatever. Save for one reason hereinafter to be referred to it is undisputed that upon the record as now presented the relator was entitled to a writ of mandamus compelling his reinstatement, if the place to which he had been appointed, and from which he was removed, was a clerical or subordinate position as distinguished from a public office. The learned Appellate Division, *493 in reversing the order made by the Special Term granting the writ, reached the conclusion that he had been appointed to and was holding an "office," and that, therefore, he could not secure relief by a writ of mandamus but must resort to an action of quo warranto directed against the occupant appointed after his removal.
We think that the court took an erroneous view of the nature of relator's position, and that most clearly the latter was not an office as defined by the law in connection with such a proceeding as this.
The statute under which relator was appointed furnishes the test by which to determine this question. Such statute first directs attention to the coroner as the head of the department of government under consideration. It then provides that he "shall appoint a clerk * * * and such and so many assistant clerks as shall be provided for * * * also appoint a stenographer." This statute does not assign any original, independent or governmental duties to the position of clerk thus created any more than it does to that of assistant clerk or stenographer. Its plain meaning as a whole is that the coroner charged with various statutory duties and responsibilities shall have the power to appoint a clerical force which, under his direction and subject to his orders and control, shall assist him in the administration of the duties of his office by performing such routine and subordinate duties as may be assigned to them. There is entirely lacking any suggestion of those powers and responsibilities and of that independent action upon the part of one of these clerks which are inevitably incidental to a public office.
We think that what was said in the case of People ex rel.Corkhill v. McAdoo (
We do not think that the authorities cited by the learned Appellate Division as supporting their conclusions do justly bear that construction.
In O'Hara v. City of New York (
The case of Martin v. City of New York (
The case of People ex rel. McLaughlin v. PoliceCommissioners of Yonkers (
The other reason before referred to which is briefly urged in opposition to relator's proceeding is in substance that he having been appointed to his position of clerk under a statute which prescribed no definite term of office held subject to the pleasure of his superior and could be removed at any time. We think that this contention is unfounded. While the statute giving the coroner the right to appoint a clerk did not fix the term of office, still that statute must be construed with reference to others, and the Civil Service Law, to which we have already referred, and the applicability of which is not questioned, prohibited the removal of the relator except under the conditions there specified.
Finally, it is contended that certain errors were committed upon the hearing at Special Term which required reversal of the order there made, and our attention is directed to the following questions, objections and rulings:
(By defendant's counsel): "Describe briefly the duties of the position held by Hoefle? [Objected to.] The Court: He was a clerk; he was not a deputy; he had no right to sign the Coroner's name to anything. Mr. Hughes: Does your Honor exclude the question? The Court: Yes. [Exception.] Mr. Pinney (relator's counsel): I withdraw the objection if your Honor please. I don't want any exception in this record. (By defendant's counsel): Q. What are the duties of the successor of Hoefle? [Objected to.] Q. Specify the nature of his successor's work in the coroner's office? [Objected to as incompetent, immaterial, irrelevant and not binding upon this relator who was appointed by another coroner, and because in no event has this coroner any power under section 1571 of the Charter of the city of New York to impose any other than clerical duties. Objection sustained; exception.] * * * Q. In your absence from the office who represents you? [Objected to because he cannot under *497 the law have any representative who may act as his deputy. Objection sustained; exception.]"
It is now said in substance that it was the purpose by this examination to demonstrate that the position formerly held by relator was that of deputy, cashier or private secretary and that, therefore, he came within the exceptions of section
There was no exclusion of any competent evidence in regard to the duties performed by relator. It is not apparent that the defendant who took office sometime after relator's removal had any knowledge of the duties performed by him. Moreover the objection originally interposed to the question asked of defendant was subsequently withdrawn and an opportunity afforded for examination which was not improved, and thus the evidence upon this point was confined to the testimony given by the relator himself, which clearly indicated that he was not discharging the duties of any of the excepted positions.
We think that the questions asked of defendant with reference to the duties performed by relator's successor were also properly excluded. It well might be argued that relator was entitled to have the legality of his removal tested by conditions as they existed at the time it occurred and that if he was not then performing the duties of one of the positions excepted from the force of section 21, his reinstatement could not be defeated by showing that subsequently the duties of one of such positions were being discharged by the person appointed in his place. But in our opinion there is another answer than this. We think that when the statute excepted from the limitations upon the power to remove certain persons like relator the office of deputy, cashier or private secretary, it contemplates only positions brought within these excepted classes by the terms of the laws which created or authorized and defined them, or at the most positions which under some sufficient authority at the discretion of the appointing or superior *498 power have been invested with the duties and character of one of the excepted positions. We do not believe that it was the purpose to allow the head of a department at will by assigning temporarily certain duties to a position created as an ordinary clerkship, to transform it into the office of private secretary, cashier or deputy and thus secure freedom of removal for the purpose of defeating such an application as this. This view is sustained by other provisions of the Civil Service Law such as are found in section 12, relating to the exempt class, which refer to and distinguish the different positions of clerk, secretary and deputy and speak of them as "authorized by law," rebutting any inference that an official at will might create a secretaryship, for instance, from a clerkship through assignment to the latter of certain duties. The intent to make definite and to restrict rather than to enlarge the scope of the exceptions to the limitations upon the power of removal may be found from the fact that the statute originally excepted not only the position of private secretary or deputy, but also that of "any other person holding a strictly confidential relation to the appointing officer." It is quite manifest that the limitations upon the power to remove veterans and others would cease to be very efficacious if every official and head of a department might avoid them by changing clerks into officials and employees of a character placed beyond the protection of these limitations.
It is briefly suggested in a somewhat incidental manner upon the brief of the counsel for the appellant that the position held by the relator is in the exempt class under the civil service regulations. We cannot find that any such issue, of whatever importance it might be, was raised by the return or considered in the courts below.
The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs to the relator in both courts.
CULLEN, Ch. J., O'BRIEN, EDWARD T. BARTLETT, HAIGHT, VANN and CHASE, JJ., concur.
Order reversed, etc. *499