35 N.Y.S. 349 | N.Y. Sup. Ct. | 1895
The proceeding was instituted by an alternative writ of mandamus, commanding the defendants to appoint the relator to the office of assistant sealer of weights and measures of the city of Buffalo, or show cause to the contrary. The writ was founded upon the fact that the relator had served in the army of the United States in the late war, and was honorably discharged therefrom; that he had made application to such board of police for appointment to that office, and was entitled to preference, pursuant to the statute, which provides that:
“In every public department [of the cities], and also in noncompetitive examinations under the civil service rules, laws, or regulations of the same, wherever they apply, honorably discharged Union soldiers and sailors shall be preferred for appointment and employment; age, loss of limb or other physical impairment which does 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.” Laws 1894, c. 716.
The statute also further provided that:
“The civil service rules and laws of this state shall not apply to such persons residents of this state, who served in the army or navy of the United States in the late war, and have been honorably discharged therefrom, for any position or employment, the compensation of which does not exceed four dollars a day, in the public departments and upon all public works of the state of New York, and of the several cities, counties, towns and villages thereof.” Id. c. 717.
The defendants made return to the writ, and the issues were tried, and the court found as facts that the office of assistant sealer of weights and measures is a public office of the city of Buffalo, with an annual salary attached thereto of $1,000, and with a definite term of one year; that on the 12th day of December, 1894, there were two vacancies in such office, and that the filling of them by appointment .devolved upon the defendants, constituting such board of police; that the relator was a volunteer soldier in the army of the United States in the late war, and was honorably discharged therefrom; that he
The only question requiring consideration on this review is whether the remedy adopted by the relator was available for the purpose of the relief sought by him. The purpose of the statute is to give preference to honorably discharged soldiers, in making appointment to the offices within the classes there referred to, and such is the duty devolved upon the appointing power, not, however, excluding from consideration the question of competency and fitness for the positions. Assuming that the relator was entitled to preference, as against either of those so appointed by the defendants, he has no title to the office. That, is not given by the preference, but is dependent upon appointment by the constituted authorities, without which no person can legally become an incumbent of the office. It is in that view that the relator seeks to enforce his appointment by the defendants. They have exercised their power in that respect, and the persons appointed are in the offices. But it is insisted that one of them was unlawfully placed there, by reason of such preference to which the relator was entitled, and that the defendants, having made the appointment in violation of law, cannot assert it in the denial of his right to the preference. The fact remains that there is no vacancy to 'fill. Thé offices are occupied by those having apparent authority, derived from appointment by the board having the power to make it. The appointment of the relator would not displace either of the present incumbents. It is not the province of a writ of mandamus to establish rights or to determine controversies. It is available only for the enforcement of a clear, specific, legal right, and there must also be an existing duty of the respondents to perform or execute it. The absence of either defeats the remedy. The proceeding by mandamus, in some sense, has the nature of an action between the parties, and is for the enforcement of a right in favor of the person in whose behalf the writ is granted. The duty of the respondents, without the corresponding right upon his part, would furnish no support for granting it. People v. Supervisors of Greene Co., 12 Barb. 217. The claim of the relator, upon which the proceeding is founded, is that he is entitled to the office. The question of his appointment involves the consideration of the right to the office, and, unless the latter is clear, the writ of mandamus is not the appropriate remedy to enforce the former. It cannot be assumed that the right to the office does not present a disputed question, which
The proposition is well settled that, where an office is already filled by an actual incumbent, exercising the functions of it, even when he is merely an officer de facto, under color of right, mandamus is not available to compel the admission of another claimant to the office. People v. Mayor, etc., of New York, 3 Johns. Cas. 79; People v. Goetting, 133 N. Y. 569, 30 N. E. 968. It is first to be determined, in an appropriate action in the nature of quo warranta, whether one of the persons appointed by the defendants to the office in question is rightfully in possession of it; ard if the result is judgment of ouster, a vacancy is furnished. Then it may be the duty of the board of police to fill it, and in that event, if any one person is entitled to the appointment, he may, if necessary, proceed to obtain it by means of the mandatory writ. Those questions, however, do not arise here for consideration. The conclusion of the trial court, that the writ of mandamus was not the proper remedy, is well supported by the opinion of Justice Spring, before whom the trial was had.
The judgment should be affirmed. All concur, except WARD, J., dissenting.
For dissenting opinion of WARD, J., see 35 N. Y. Supp. 749.
