Dill v. Wheeler — 100 A.D. 155

Majority

p. 155

In the Matter of the Application of Isaac S. Dill, Appellant, for a Writ of Mandamus, v. Charles B. Wheeler and Others, Constituting the Municipal Civil Service Commission of the City of Buffalo, N. Y., Respondents.

Headnote

Mandamus — it does not lie to compel a civil service commissioner to reclassify the position of battalion chief in the city of Buffalo — the mayor of the city and civil service commissioner are necessary parties — the appointment may be made subject to a qualifying examination.

A municipal civil service commission cannot be compelled by mandamus to reclassify a position which they have placed in the competitive class, as such reclassification would involve consideration, deliberation and a quasi judicial determination.

ZBven assuming that such a reclassification could be compelled by mandamus the mayor of the city and the State Civil Service .Commissioner would be necessary parties to the proceeding, as the reclassification could not be made effective without their action.

While the position of battalion chief in the fire department of the city of Buffalo cannot properly be placed in the competitive class, it may properly be placed in the non-competitive class and the appointment be made subject to a qualifying examination.

Appeal by the petitioner, Isaac S. Dill, from an order of the Supreme Court, made at the Erie.Special Term and entered in the office of the clerk of the county of Erie on the 29th day of August, 1904, denying the petitioner’s application for a writ of mandamus.

Appellant desired a writ compelling the defendants to- certify to the comptroller of the city of Buffalo his appointment as a battalion chief in the fire department in said city, so that he might draw a salary for said position, and also compelling said commission to reclassify said position of battalion chief by transferring it from the 'competitive to the exempt class in the civil service.

Edward R. O'Malley, for the appellant.

Charles B. Wheeler and Charles L. Feldman, for the respondents.

This appeal involves some questions somewhat related to those discussed in. the case of People ex rel. Schau v. Whittet ( 100 App. Div. 176 ), decided at this term. It, however, involves other questions,

p. 156

the proper • decision of which leads to'an affirmance of the order appealed from. . -

July 11, 1904, the appellant, was appointed a battalion chief in the fire department of the city of Buffalo., At that time ;the position had been placed in the competitive class. Appellant did not comply with the rules governing an appointment to such position,.. ^and, therefore, the municipal civil service commission refuses to certify his name as required by law. He, upon the other hand, claims that such classification was illegal and unauthorized and that by this proceeding he may compel a reclassification in what he claims to be the proper class. ■'

There are various and, as we think, very manifest reasons why he . should not succeed in his application for a writ of mandamus to compel the relief to which he conceives himself to be entitled.

First. Such a reclassification as he desires could not be made effective without action of the mayor of the city and the State Civil Service Commission, neither of, whom are parties in this proceeding. _ ...

Second. The action of the civil service commission in placing the position in question in the competitive class involved consideration, deliberation and a quasi judicial determination. A reclassification would involve similar elements. It' is well' settled that action by a body or person involving'those features may not be compelled by a writ of mandamus, which, generally speaking, is directed simply to the enforcement and compelling of ministerial acts. (People ex rel Sims v. Collier, 175 N. Y. 196 .)

Third. We have held in the case of People ex rel. Schau v. Whittet (supra) that, while it was improper to place this1 position in the competitive class, it might be properly placed in the non-competitive class and the appointment be made subject to a qualifying examination. Even if the appellant should be given the benefit of this decision nunc pro tune his appointment would be invalid and irregular and he would not be entitled to the relief sought.

The order appealed from should be affirmed, with costs.

All concurred.

Order affirmed, with ten dollars costs, and disbursements.

Cases cited

People ex rel. Schau v. Whittet 100 App. Div. 176 N.Y. App. Div. 1905-01-04 p. 155
People ex rel. Sims v. Collier 175 N. Y. 196 N.Y. 1903-05-22 p. 156