70 N.Y.S. 901 | N.Y. App. Div. | 1901
Lead Opinion
The relator, a resident of the borough of Richmond, Hew York, an honorably discharged soldier of the United States in the late Civil War, was employed in July, 1898, as warrant clerk in the auditor’s office at a salary of $1,200 a year, and was transferred from the borough of Richmond to the borough of Manhattan ón De-: cember 15, 1899. He was discharged from such employment on January 12,1901, without charges, notice, or opportunity to be heard, for-the alleged reason that the appropriation available for the maintenance of the department in which he was employed was not suffieientto provide for the retention of the number employed there, and, owing to “the exigencies of economy in the public service,” his services, were dispensed with, it being averred by the respondent that he was-the least efficient man in the bureau, and the one who would be the least missed. After his discharge the relator commenced a proceed
The comptroller had the undoubted right to dispense with relator’s services for the reasons which he assigns, if at the time he did not know that the relator was a veteran, and therefore entitled to protection under the provisions of the constitution. People v. Cruger, 12 App. Div. 536, 42 N. Y. Supp. 398; People v. Clausen, 50 App. Div. 286, 63 N. Y. Supp. 993. Before the comptroller was called upon to recognize the preference to which the relator is entitled, the latter was required to bring the knowledge of his right to preference home to the comptroller. As, however, the status of the relator does not depend upon the knowledge of the comptroller of the fact which entitles the former to a preference, it is sufficient for the relator, even after a dismissal, to bring such knowledge home to the comptroller; and, accompanying the same with a demand for reinstatement, he is entitled thereto, if, in law, he enjoyed a preference in employment, and has not been guilty of such laches as constitutes a waiver of his legal right. In the present case it sufficiently appears that the relator laid before the comptroller the facts showing that he is a veteran, and accompanied the same with a demand that he be reinstated in the position from which he had been removed. This evidence and the demand were seasonably made, and if the relator was, under the law, entitled to be retained, it became the duty of the comptroller to reinstate him in the position which he had formerly held. It is said, however, that his application for a peremptory writ of mandamus must be denied, for the reason that the opposing papers put in issue a material averment of the moving papers.- Such is the established rule of law if an issue is thus raised. The petition upon which the relator bases his application is verbose in statement, and contains much irrelevant and unnecessary matter, and this fact enabled the comptroller to interpose several denials to the matter averred in the petition. But the matters to which the denials, are interposed were not essential to a statement of fact showing relator’s right to a preference, if, under the law, he wras entitled thereto. There is no denial of the fact that the relator was regularly appointed to the position which he held prior to his removal; that he was in fact a veteran; that he was removed without a hearing, and without charges being preferred against him; that at the time of his removal there were persons retained in precisely similar positions in the comptroller’s office, who were not veterans, or protected by the veteran’s act or otherwise; and that he furnished the comptroller with proof of the fact
The preliminary question, therefore, must be resolved in favor of the relator.
This brings us to the main question in the case, which is one not entirely free of difficulty. The constitution (article 5, § 9) and chapter 370 of the Laws of 1899 furnish the authority upon which the relator's legal rights are to be determined. In Re Keymer, 148 N. Y. 219, 42 N. E. 667, 35 L. R. A. 447, the court held chapter 344 of the Laws of 1895, which provided that competitive examinations for appointment in the civil service should not be deemed practicable or necessary as applied to honorably discharged soldiers and sailors of the late Civil War for appointment to positions where the compensation or other emoluments of the office did not exceed four dollars a day Amid, as being an invasion of the provisions of the article of the constitution to which we have referred; and therein the rule was announced that the measure of preference for veterans was to be found in the constitutional provisions, and that it could not be extended or enlarged. This case reviews the civil service legislation of the state in relation to the preference which had from time to time been bestowed upon veterans. Prior to 1897 the law as it existed, independent of the constitution, provided that veterans should be preferred for appointment, employment, and promotion. Under such law it was held in McCloskey v. Willis, 15 App. Div. 594, 44 N. Y. Supp. 682, that a veteran was entitled to retention in employment in the same position as against the right of another employé therein, not a veteran; that, if the exigencies of the public service required, for matters of economy, the dismissal of a part of the force, the veteran was entitled to be retained as against all other persons not entitled to a preference. This decision proceeded exclusively upon a construction of the statutory provision, and the constitutional provision does not seem to have been adverted to or considered. It is not, therefore, to be regarded as a controlling authority upon the construction of the constitutional provision. Chapter 184 of the Laws of 1898, which amended chapter 119 of the Laws of 1888, provided that, if the position held by an honorably discharged soldier, sailor, or marine, or volunteer fireman should become unnecessary or be abolished for reasons of economy or otherwise, such soldier, sailor, marine, or fireman should not be discharged from the public service, but should be transferred to any branch of the said service for duty in such position as he might be fitted to fill, receiving the same com
This view finds further support in the provisions of section 21 of chapter 370 of the Laws of 1899, which, among other things, provides-that, if the position held by the veteran becomes unnecessary, or is abolished, for reasons of economy or otherwise, he shall not be discharged from the public service, but shall be transferred to any branch of service in such position as he may be fitted to fill, and receive the same compensation therefor. It is manifest from this provision of the statute that the intent of the legislature was to secure the retention of the veteran in his employment, and, in any event, to retain him in the public service in some position. Language could scarcely be stronger indicating the legislative intent to prefer the veteran in his tenure of employment, and it would seem to be a clear violation, both of constitution and legislative intent, to permit of his discharge for reasons of economy, although the position which he filled still remains and continues. The express command of the constitution is that the legislature shall enact laws for the enforcement of the section which gives to honorably discharged soldiers the preference. In Re Breckenridge, 160 N. Y. 103, 54 N. E. 670, this provision, as contained in chapter 184 of the Laws of 1898, which, as we have seen, the present law has re-enacted, was the subject of construction, and it was therein held that, where the position had been abolished, or become unnecessary, he could not be transferred, except there was an existing vacancy in the department in which he served; that it was not the legislative intent that a vacancy should be created for the purpose of his transference. The court divided upon this subject, the minority holding to the view that the statute was mandatory, and compelled his transfer, and the majority holding as above stated. It
“The legislative intent was to secure the retention in the public service of the veteran who is thrown out of office by its abolition. * * * The municipality itself appears to be laid under the obligation to retain the applicant. * <= * The law is capable of a reasonable and perfectly fair construction, under which the veteran who loses his office through its abolition is not to be discharged from the public service if there is in any branch of that service a position, with equal emoluments, which he is qualified to fill.”
In that case the position was abolished, and its duties were devolved upon other persons in other positions of service in the department. No one remained holding or discharging solely the distinct duties attached to the position which was occupied by the relator therein up to the time of the abolition of the office, and, as there was neither position nor vacancy, the right which the law conferred upon the veteran entirely failed. In the present case the position of warrant clerk still remains. Its duties are presently performed by 16 other persons, who are not veterans, and who are not otherwise-protected. There was here no abolition of the position; there was simply a reduction in the number of persons engaged to fill it on account of a lack of sufficient appropriation to pay for the service. The position, however, remains, and, so long as the relator properly.discharged his duties, and was not subject to be removed for dereliction therein on charges preferred, he was entitled to be retained as against other persons employed in this position, who were not, as against him, preferred for service. In this respect the reasoning of the court in McCloskey v. Willis, supra, finds precise application. The fact that the relator was the least efficient of those employed neither authorized nor justified his removal. Such fact is not made one of the grounds for discharging him from public service. The law evidently contemplates, as we have before observed, that the person thus .preferred may be lacking in efficiency, but, so long as such inefficiency does not render him incompetent for the proper discharge of the duties entailed by the position, and there is no dereliction of duty, he may not be removed therefrom, either arbitrarily or upon charges.
If these views are correct, it follows that the relator was improperly discharged, and is therefore entitled to a peremptory writ of mandamus to compel his restoration to the position from which he was removed. The order should therefore be reversed, with costs and disbursements, and the motion granted, with $10 costs.
PATTERSON and LAUGHLIN, JJ., concur.
Dissenting Opinion
Certain material allegations set out in the moving papers were denied, and this in and of itself was a sufficient ground for denying the application. Corrigan v. City of Brooklyn, 149 N. Y. 215, 43 N. E. 554; Haebler v. Produce Exchange, 149 N. Y. 414, 44 N. E. 87. For instance, the comptroller denied that
“Indeed, his counsel puts his case for him very frankly when he says the respondent is bound to make an office for the appellant, even if it should be necessary to dismiss from the service others who are not protected under the veteran act. That is a view which I think we should not take of this act. I do not think we should impute to the legislature the absurdity of intending to saddle an unnecessary office holder upon the city; or the injustice*910 •of intending that some faithful, and possibly more efficient, officer who happens not to be a veteran must be discharged to make room for the ineum'ibent.”
For the foiegoing reasons, I am of the opinion that the application for a peremptory writ of mandamus was properly denied.
O’BRIEN, J., concurs.