Edkins v. Wotherspoon — 173 A.D. 330

Majority

p. 330

In the Matter of the Application of Charles Edkins, Appellant, for a Writ of Mandamus against William W. Wotherspoon, as Superintendent of Public Works of the State of New York, Respondent.

Third Department,

May 3, 1916.

Headnote

Civil service — discharge of veteran fireman — abolition of unnecessary-position by State officer — Civil Service Law construed — when veteran entitled to transfer to other position.

Where it is admitted that the State Superintendent of Public Works, by abolishing the position of one of three reservoir tenders and placing his duties upon the other two employees, saved $300 a year to the State, the good faith of the Superintendent in abolishing the position is

p. 331

established, and indicates that the discharge of the employee was not made because of political bias.

Every public official has an inherent right and a right under the Civil Service Law to abolish positions for reasons of economy.

Tire fact that an employee is a veteran fireman does not require that he be continued in the State service in a useless position.

Although the Civil Service Law requires a veteran employee to be transferred for duty in such position as he may befitted to fill, there must be another position vacant to entitle him to a transfer, and a public official is not obliged to discharge other employees to open a position for a veteran.

Appeal by the petitioner, Charles Edkins, from, an order of the Supreme Court, made at the Chemung Special Term and entered in the office of the clerk of the county of Madison on the 19th day of August, 1915, denying appellant’s application for a writ of mandamus to restore him to the position of reservoir tender or to some other similar position which he was competent to fill upon the ground that he was an exempt fireman under section 22 of the Civil Service Law (Consol. Laws, chap. 7 [Laws of 1909, chap. 15], as amd. by Laws of 1910, chap. 264).

M. J. White [ Walter 8. Archibald of counsel], for the appellant.

Egburt E. Woodbury, Attorney-General [James S.Y. Ivins, Deputy Attorney-General, of counsel], for the respondent.

Prior to April 13, 1915, the relator and two other men were holding positions as tenders of certain reservoirs owned by the State in Madison county. On that date the Superintendent of Public Works abolished one of those positions, discharged one of the men in consequence thereof, and put the work of the three men upon the remaining two. The relator, who was a veteran fireman, was the person discharged. He claims that he was discharged for political reasons in violation of section 22 of the Civil Service Law (Consol. Laws, chap. 7 [Laws of 1909, chap. 15], as amd. by Laws of 1910, chap. 264), and asks for a writ of mandamus commanding either that he be reinstated or that he be transferred to a similar position. The Special Term has denied his application for either a peremptory or an

p. 332

alternative writ. On this appeal the request for an alternative writ is not pressed, the relator contending that, under the facts disclosed by the record, the position previously held by the relator has not been abolished, but has been maintained and filled by one of the other reservón' tenders. The relator admits that the rearrangement, that is, the retention of two men to do the work previously done by three, has resulted in a saving of $300 a year to the State. It seems to us that this admission establishes the good faith of the Superintendent of Public Works, and disposes of the assertion that the position has not been abolished. This admission also strongly corroborates the Superintendent’s assertion that the relator was not discharged because of political bias.

Every public official has an inherent right, and a right under the Civil Service Law (§ 22), to abolish positions for reasons of economy. Indeed, it may be said to be the duty of an official, who discovers that more persons are employed in his depart - ment to do the work than are needed, to abolish all the superfluous positions. Therefore, in this instance, the Superintendent of Public Works exercised a right and performed a duty authorized by statute and by conscience — a right too frequently neglected. In abolishing the position in question the incumbent happened to be a veteran fireman; but that fact did not require the Superintendent of Public Works to continue a useless position. Under section 22 of the Civil Service Law the Superintendent was only required to transfer the employee “ to any branch of the said service for duty in such position as he may be fitted to fill.” But in accomplishing this mandate of the law the Superintendent was not obliged to sacrifice positions held by other persons in order to save the position held by this veteran fireman. (People ex rel. Davison v. Williams, 213 N. Y. 130 .)

The relator in his petition asks, if he cannot be restored to his old position, to be transferred to a similar position. But the Superintendent swears in his answer that there is no such position vacant; and this is not disputed. The burden is on the relator to show that a vacancy does exist which he is fitted to fill before he can require the Superintendent to put him into such position. (Matter of Breckenridge, 160 N. Y. 103 .)

p. 333

There must be a vacancy or there can be no transference; and the Superintendent was not obliged to discharge some other person not an exempt fireman in order to make a place for the relator. (Matter of Breckenridge, supra.)

It follows that the order of the Special Term should be affirmed, with costs.

Order unanimously affirmed, with ten dollars costs and disbursements.

Cases cited

People ex rel. Davidson v. Williams 213 N. Y. 130 N.Y. 1914-11-17 p. 332
Breckenridge v. Scannell 160 N. Y. 103 N.Y. 1899-10-03 p. 332