20 N.Y.S. 21 | N.Y. Sup. Ct. | 1892
This is an appeal from an order directing the issuance of a peremptory writ'of mandamus commanding the appellants to appoint the relator superintendent of the poor of the city and town of Newburgh. The order of the special term was based upon an affidavit of the relator, which stated that he was an honorably discharged Union soldier, residing at the city of Newburgh, and on the 4th day of-April, 1892, he filed with the commissioners of the almshouse an application for the appointment of superintendent of the almshouse of that city and town; that on the 5th day of April, 1892, at a regular meeting of the commissioners, in disregard of his petition, and in defiance of the law, they appointed Chauncey F. Gardner, who was not a discharged Union soldier, such superintendent for the ensuing year. The affidavit then closed with a prayer for the issuance of a peremptory writ which should command the defendants to appoint the relator such superintendent. The affidavit was silent respecting the qualifications of the relator and his competency to perfoim the duties of the office which he sought. It did not state his age, or whether he had lost a limb, or sustained any other physical impairment which might incapacitate or disqualify him. In opposition to the motion the defendants presented the affidavit of the president of the board of commissioners of the almshouse of the city and town of Newburgh, which consists of six members, in which it was stated that, by the law under which the board was organized,' it was made the duty of the commissioners to appoint an officer denominated the “superintendent of the poor of the city and town of Newburgh;” that it was the duty of such officer to reside at the almshouse, and have the control and management of the paupers therein, who numbered then about 100, to act as secretary of the board, and keep its minutes, to keep the accounts of the board, to purchase supplies for the almshouse and temporary relief, to ket-p an office in the city and receive applications for relief, to examine into the circumstances of the applicants, and keep a record of such examinations, and, generally, to perform the duties devolving by law upon the board, as its executive officer; that the office was a very important one, and required for its proper discharge very considerable ability, business capacity, and experience. The affidavit further stated that the board met at its annual meeting on the 4th day of April, 1892, for the purpose, among other things, of appointing a superintendent of the poor; that the relator applied for such appointment upon the ground that he was an honorably discharged Union soldier; that the relator was personally known to most of the members of the board, and, in their judgment, he does not possess sufficient business capacity, knowledge, and experience to fit him for a proper discharge of the duties of that office; that the other applicants were William A. Dressier, who
The statute under which this proceeding was instituted is this: “Section 1. In every public department and upon all public works of the state of New York, and of the cities, towns, and villages thereof, and also in noncompetitive examinations under the civil service laws, rules 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. Sec. 2. All officials or other persons having power of appointment to or employment in the public-service, as set forth in the fust section of this act, are charged with a faithful compliance with its terms, both in letter and spirit, and a failure therein shall be a misdemeanor. Sec. 3. This act shall take effect immediately. "■ Chapter 464, Laws 1887.
It was the intention of this statute to give to honorably discharged Union soldiers and sailors a preference for appointment and employment in every-public department and upon all public works of the state of New York and of the cities, towns, and villages thereof, and also in noncompetitive examinations under the civil service laws, rules and regulations of the same, wherever they apply, without disqualification by reason of age, loss of limb, or other physical impairment which does not in fact incapacitate, provided they possess the business capacity necessary to discharge the duties of the position involved; but the proviso governs the operation of the whole statute. If the soldier or sailor possesses the business capacity necessary to discharge the duties of the position involved, he has the preference. If he is destitute of such capacity, he is not within the provisions of the law, and can derive no benefit therefrom. Capability is the prerequisite to the reception of the-preference. It was not the design of the statute to debase the public service by requiring the appointment of incompetent men to discharge the duties-of public positions, or to elevate heroism above competency, independent of other considerations. Patriotism is to be honored and rewarded in appropriate ways, but not by the distribution of public offices. Such being the manifest design of the statute, its application to this ease is simple and easy. It was the duty of the almshouse commissioners to appoint a superintendent of the poor of the city and town of Newburgh. It was an important office, and required the exercise of great care, discretion, knowledge, and business capacity. The incumbent is required to take charge of the inmates of the almshouse, disburse the poor fund and keep the accounts, act as secretary and executive officer of the board, and purchase the supplies. The selection of a fit person to discharge such duties and fill the office was intrusted to the board, and it was the peculiar province of that body to make the selection of the officer subject to no judicial control. The power of appointment was vested in the commissioners; they were personally acquainted with the relator, and, in their judgment, he did not possess sufficient business capacity, knowledge, and experience to fit him for a proper discharge of the duties of this office,
In no view, therefore, can the relator maintain this proceeding, and the order should be reversed,.with $10 costs and disbursements, and the motion for a writ of mandamus should be denied, with $10 costs.