34 N.Y.S. 49 | N.Y. Sup. Ct. | 1895
The charter of the city of Albany (Chap. 298, Laws 1883, tit. 12, § 1) provides that “ the street commissioner * * * shall appoint two superintendents of streets * * * who' shall hold their places during the pleasure of the commissioner, and shall perform such services as the street commissioner may direct.”
In June, 1886, the relator, Jones, was appointed one of the superintendents of streets of the city of Albany, and by virtue of such appointment, and subsequent reappointments, continued to hold such position until September 27, 1894, when the street commissioner, assuming to act in pursuance of the provision of the charter above quoted, undertook to remove him, and if such provision of the charter was not superseded or repealed by chapter 577, Laws 1892, hereafter quoted, did remove him and did appoint the defendant Baker in his place. Since September 27, 1894, the defendant has' exercised the duties of said office and the relator has not been permitted to exercise them.
Prior to his appointment as superintendent of streets the relator had been a member of the volunteer fire department of the city of Albany, and had served therein the time required by law and had been honorably discharged.
If this act governs the case, then the relator, Jones, was not lawfully displaced and is entitled to the office, and the defendant is not entitled to it.
I think it was intended by chapter 577, Laws of 1892, to prevent the removal, “ except for cause shown after a hearing had,” .of the particular persons favorably designated in the act, holding a position by appointment in the city of Albany for no definite term and receiving a salary from the city.
It is true that the general rule is that the provisions of a late general law do not repeal the provisions of an earlier special act enacted for a particular place and purpose, unless the intent to repeal is manifest in the general act. But it is manifest, I think, from the act of 1892 itself that it was intended to operate in every city of the state. If not in Albany, then why in any other city; for Albany is as plainly designated as any other. The act was intended to apply to every officer holding by appointment and coming within the unexcepted specified conditions of the act.
The important question is whether the superintendent of the streets of Albany falls within any of the conditions which except the officer from the special favors of the act itself. The relator was appointed for no definite term; for if 'the appointment was to hold during the pleasure of the commissioner, the duration of that pleasure has no time limit of continuance ; if the provision of the charter, “ during the pleasure
The act of 1892 contains this exception: “ But this provision shall not be construed to apply to the position of private secretary, or chief clerk, or deputy of any official or department, or to any other person holding a confidential relation to the appointing officer.” Plainly the private secretary, chief clerk and deputy of an official were regarded by the framers of the act as holding a confidential relation to the officer appointing them, and since there might be other officers holding similar confidential relations, but not readily or fully mentionable, the final general clause was intended to embrace them all.
It is important to understand what relations the superintendent of streets holds to the commissioner of streets. The provision of the charter already quoted defines them thus: He “ shall perform such services as° the commissioner may direct.” The commissioner of streets has very large powers in regard to placing and keeping the streets, parks, out-door public places and public sewers in the city in good condition and repair. The commissioner may be called the director, the superintendents the performers of his directions, in respect to these duties. When we speak of one officer as the deputy of another we mean that one is deputed to act in the name and right of the other, like an agent for his principal. Doubtless we are all apt to think that whatever the principal can do his deputy can also do. We should think so in this case, if, instead of naming the subordinate officer a superintendent of streets, he had been named deputy commissioner. But clearly whatever the commissioner directs the superintendent to do he could do himself if he chose to do it, and he cannot direct him to do anything which he might not rightfully do himself; so that, in giving the" superintendent directions, he deputes him to perform some part of his own functions, and to that extent the superintendent is the commissioner’s deputy. Why is it that the statute does not spec
The evidence as to the practical administration of the duties of the department tends to show the intimate relations which the superintendents hold to the commissioner.
The case of People ex rel. Rossney v. Armbruster, 59 Hun, 586, is much like this, and may he cited as authority for the conclusion here announced.
Judgment is directed for the defendant, with costs.
