People ex rel. Fox v. Hayden

The judgment of the General Term, from which this appeal is brought, affirmed upon a writ of certiorari, the determination of the commissioners of police and excise of the city of Brooklyn dismissing the relator from the place of boiler inspector in that city. It appears from the relator’s affidavit and the defendant’s return to the writ that on or about April 10,1879, the relator wras appointed such inspector, that he retained the place till February 29, 1890, when he wras removed by the defendant, Henry I. Hayden, commissioner of the department of police and excise, without cause and without a hearing. The defendant in his answer or return to the writ, states that he assumed the duties of the office about the 1st of February, 1890, and that with a view of reducing the

In order to get as clear a view as possible of the question it is necessary to refer to some statutory provisions concerning the office from -which the relator was dismissed.

By chapter .883 of the Laws of 1867 the Metropolitan police board was intrusted with the inspection of steam boilers in the city of Brooklyn, and was authorized to appoint members of the “ Metropolitan Sanitary Company ” to make the inspection. Subsequently the duty of making such inspection was conferred upon the board of police of the city of Brooklyn, and it was authorized to detail to such duty members of the police force competent therefor. (Laws 1871, ch. 194, § 53.) The amended charter of the city, passed in 1873, imposed upon the police board this same duty of inspection, and for the purpose of executing it power was given and the board was directed to appoint “ not to exceed four boiler inspectors who shall he skilled machinists.” (Laws 1873, ch. 863, tit. 11, § 52.) The charter also contained a provision which had existed for many years before, to the effect that members of the police force could be removed only for cause, after notice and a hearing (Laws 1873, tit. 11, § 12, ch. 863 ; Laws 1870, ch. 136, § 13; Laws 1871, ch. 194, § 16), and the more recent act to revise and combine in a single act all existing and local laws affecting public interests in the city of Brooklyn has retained the provision. (Laws 1888, ch. 583, § 13.) In the act last mem tioned (§ 52) provision is made for the inspection of boilers by persons who are practical engineers, and after providing for such inspection under rules to be prescribed by the commissioners of police and excise it is provided, in section 55, “For the purpose of carrying out the provisions of the last two sections the said commissioner shall appoint not to exceed six

. Thus the statute authorized the appointment of six persons possessing certain qualifications, to an office that had attached to it very important duties of a public nature and in which the public were interested. The duration or term of the office was not fixed nor were the powers and privileges enumerated specially, but for brevity the authors of the law referred to, another provision of the statute prescribing the powers, duties and privileges of the members of the police force. They were to possess the same powers and privileges as members of the police force. The precise inquiry is what is meant by the word privileges. The learned counsel for the defendant contends that the term was intended to express something less than a right resting in discretion and which might be granted or withheld at the pleasure of some superior power. The words “privileges” and “rights” when used in statutes are sometimes synonymous and we think are clearly so in the statute in question. A statute providing as this does that certain persons shall hold office during good behavior and shall not be removed therefrom except for cause and after notice and a hearing, confers very substantial rights upon such persons, but such rights are very frequently and appropriately enough termed privileges also. The learned counsel for the defendant seems to concede in his argument that the provisions of section 42 of title 11 of the charter, providing for pensions to members of the police force on account of injury, long service, or inability caused by long service or age, for the benefit of themselves or their families, constitute a privilege which attaches to the office of boiler inspector also, under the terms of the statute. If this is so it furnishes a very strong reason why the relator should be exempt from an arbitrary dismissal without cause and at the mere will of the appointing power. The rights and privileges of receiving a pension from the government, based upon long service, carries with it the idea of permanency in the service for which the pension is

All concur.

Order reversed.