People ex rel. Ray v. Henry

| N.Y. App. Div. | Jan 15, 1900

Herrick, J.:

The relator contends that she has been removed from the office of general supervisor of the House of Refuge for Women at Hudson, N. Y., in violation of the civil service laws and the rules, and regulations of. the Civil Service, Commission, and for that reason seeks a reinstatement. .

In the view that I have taken of this case, it is of no copsequence whether the rules promulgated.by the State Civil Service Commission in terms apply to the relator’s case or# not, and I, therefore, decline to discuss that question.

There is no fixed or definite term of office for a general supervisor of the House of Refuge for Women at Hudson, or for any ■other officer or employee of that institution, so far as I can discover from an examination of the statutes of the State.

The Legislature has conferred upon the superintendent of that institution power to appoint and remove all subordinate female officers and employees, subject to the approval of the board. (Subd. 3, § 144, chap. 546, Laws of 1896; The State Charities Law.) The relator was a subordinate female officer or employee of that institution.

Section 3 of article 10 of the Constitution of the State reads as follows: “ When the duration of any office is not provided by this Constitution, it may be declared by law, and if not so declared, such office shall be held during the pleasure of the authority making the appointment.” ■ ,

It may be that a law making the term of office to last during good behavior, as- is frequently done, would be a compliance with this section of the .Constitution. But neither the statute in relation to the House of Refuge for Women at Hudson, the Civil Service Law ■or any law of the State that I have been able to find, fixes any such tenure of office for persons occupying the jiosition formerly held by the relator. Indeed, the law in relation to subordinate female offi•cers and employees of the House of Refuge for Women at Hudson makes the term of such officers and employees dependent upon the will and pleasure of the general superintendent, subject to the approval of the board of managers, thus negativing the idea of any fixed tenure of office for such female subordinate officers or employees; and in the absence of any law declaring the duration of such term of office, it is, in the words of the Constitution, to “ be held during the pleasure of the authority making the appointment.”

That authority in this case was the defendant, the superintendent ■of said house of refuge. Assuming that the rules promulgated by tlie Civil Service Commission are in their terms applicable to persons holding positions like those of the relator, it must be obvious that such rules cannot in any way limit or restrain the power conferred by the Constitution. To hold otherwise, would be to deprive the appointing authority of the power expressly1 conferred upon it by the section of the Constitution I have cited.

It, therefore, becomes of no consequence whether the rules of the Civil Service Commission were complied with or not; the defendant could have removed the relator without any charges, without assigning any cause, and. without giving notice to any person, except the relator herself; because no duration being fixed for such office by the law, she held her position only during the defendant’s pleasure, and when the defendant signified her pleasure that the relator’s •occupancy should cease, that ended her right to hold it.

The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements of this appeal, and the motion for the writ of peremptory mandamus denied.

All concurred.

Order reversed, with ten dollars costs' and disbursements, and motion for writ of peremptory mandamus denied.