8 N.Y.S. 401 | N.Y. Sup. Ct. | 1890
We concur in the views expressed by Mr. Justice Andrews at special term. It will be unnecessary to repeat the principal statements of fact and law contained in his careful opinion. The only doubt which we entertained upon the argument was as to the remedy. Upon that head two views of the statute (Laws 1887, c. 464) may be taken. In one view the act is simply a general instruction to public officials, which can only be enforced by dischpine or punishment; in the other, a specific duty is imposed, and a specific right conferred, upon individuals. Upon full consideration the latter view seems more in consonance with the legislative intent. It is impossible to read this act without a realizing sense of the legislative determination to
The material fact is that Sullivan is an honorably discharged soldier. This is clearly sworn to, and the facts with regard to it are stated in detail. The respondent below neither denied the fact, nor controverted the proof of the fact. The veteran’s right to preferment depends upon the fact, not upon the official’s willingness or unwillingness to credit the fact. In People v. Board of Assessors, 52 How. Pr. 140, it was distinctly held by this general term j that Mr. Gilroy’s form of denial was unauthorized, and that it really amounted to nothing. This is conceded in the appellant’s points, the denial being supported only upon the contention that the commissioner’s knowledge or infer-
We also think that the act is sufficiently comprehensive to embrace ordinary laborers. There are no words of limitation, and we fail to see, in the expression, “employment upon all public works of the state of Eew York, and of the cities, towns, and villages thereof,” anything to justify the idea of exclusion by implication. It would be strange if “employment upon the public works did not include the workers who do most of the work. The opposite construction is contended for because of the use in the proviso of the words, “business capacity necessary to discharge the duties of the position involved.” We do not think that this proviso has the effect of limiting the employment of veterans to business positions. The purpose is rather to qualify them for such positions when, spite of “age,loss of limb, or other physical impairment,” sufficient capacity exists to discharge the duties. It would be absurd to say that age, loss of limb, or other physical impairment, should not be deemed to disqualify for duties requiring health, strength, and stout arms. Clearly what was meant was that physical incapacity, compatible with the due performance of non-physical duties, should not disqualify for non-physical employments.
Lastly, we think that the constitutionality of this act is reasonably free from doubt. It does not seek to abridge rights guarantied by the constitution. It does not discriminate as to eligibility to or qualification for office. It simply regulates the agencies for service upon the public works of the municipality. We suppose that this entire subject is under legislative control. The legislature may lawfully provide for the doing of public work in such manner and with such agencies as it deems proper; and we know of no provision of the constitution which confers upon any citizen a right to appointment or employment upon such work, or which limits the legislative choice as to the appropriate means of performance. Finally, the mandamus will be precise and effective. The papers show that there is work to be done, and that to do it others have been really preferred over the relator. This is the truth, however the act may be colored. The scheme of the statute cannot thus be reversed, and the course adopted in the department should not be permitted. With questions of original preferment, where others than the veterans are already employed, we have nothing at present to do. The relator here had already secured his preferment. Upon evidence satisfactory to an agent of the present commissioner, or of his predecessor, Sullivan’s name had been placed upon the list of honorably discharged Union soldiers in the department. Without questioning this fact, the relator was summarily deprived of his vested preferment. That preferment should be restored to him as summarily as it was taken away. The order appealed from should therefore be affirmed, with costs. All concur.