People ex rel. Somerville v. Williams

155 N.Y.S. 653 | N.Y. App. Div. | 1915

Howard, J.:

The relator in this case was the chief clerk in the office of the State Engineer. He was removed by that official, so the affidavit of the State Engineer alleges, because “ he was not competent to fulfill the duties of chief clerk.” The relator contends that his removal was for political reasons. He seeks reinstatement by mandamus. The law which he invokes is sections 22 and 25 of the Civil Service Law. Neither of these sections are of the slightest avail to him. Section 22 in no manner applies to his case. The language which he relies upon is quoted in his petition. It reads: “ In case of a removal, a statement showing the reasons therefor shall be filed in the department or office where such clerk, head of a bureau or person had been employed.” (Consol. Laws, chap. 7 [Laws of 1909, chap. 15], § 22, as amd. by Laws of 1910, chap. 264.) But this statement need be filed only in case of the removal of veterans of the wars and of the fire departments. Indeed section 22 applies only to these favored characters and to positions within the counties of New York city. The language is not at all ambiguous; not at all doubtful. It seems unnecessary to discuss it.

Assuming that the relator was removed because of his “ political opinions or affiliations,” can he have relief by mandamus ? That he cannot was conclusively settled in People ex rel. Garvey v. Prendergast (148 App. Div. 129). The opinion of Justice Miller, written in that case before his elevation to the bench of the Court of Appeals and while he was sitting in the Appellate Division, First Department, discloses a thorough analysis of the Civil Service Law and a careful consideration of the language of section 25. It was his deliberate opinion, after close investigation of the statute, that the remedy by mandamus, for infractions of section 25, was purposely withheld by the Legislature from persons aggrieved because of “ the manifest mischief likely to result from conferring the remedy.” The doctrine of that case has never been reversed by the Court of Appeals; and, even though we might have reached a different conclusion had the proposition come originally to us, the law has been so long established and so generally followed that we feel bound to respect it here. In fact we are already committed to this position by our decision in People ex rel. Stewart v. Carlisle (162 App. Div. 920).

The order of the Special Term should be reversed and the motion for a writ of mandamus denied.

All concurred, except Kellogg and Woodward, JJ., dissenting.

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