People ex rel. Baldwin v. McAdoo

This is an appeal from so much of an order as denies an application for a peremptory writ of mandamus to the commissioner of police of the city of New York to recognize the relator as an inspector of police and to assign him to duty. I shall not discuss the merits of the case, inasmuch as I am of opinion that the relator has mistaken his remedy, in that it is not mandamus, but quo warranto.

On June 23, 1903, the then commissioner of police thought that .there were four vacancies in the inspectorships. The full number allowed and limited by the statute was 15. Section 276 of the charter (Laws 1901, p. 118, c. 466). One inspector had retired, two had been dismissed the force, and one had handed in his resignation, to take effect on July 12, 1903. The commissioner made requisition upon the Civil Service Commission for the names of persons eligible for four vacancies, and on June 23,1903, the secretary of the commission certified to him the names of Baldwin, the relator, Albertson, Wiegand, and Brennan. These constituted the entire list of eligibles, and the names were in the order of their respective percentages. A postscriptum in the letter of certification read:

“I beg to call your attention to the fact that John Wiegand has not filed any veteransliip proofs in this office, but it is understood that he is a veteran, and if the fact is recorded in your office he must he given the preference in appointment which is allowed under section 20 of the White civil service law.” Laws 1899, p. 808, c. 370.

On June 23, 1903, the commissioner made the following order:

“On reading and filing eligible list of the municipal civil service commission, dated June 23, 1903, ordered, tMt Sylvester D. Baldwin, Charles L. Albertson, John Wiegand, and Richard Walsh be, and hereby are, promoted to the grade of inspector of police, appointment of said Richard Walsh to take effect July 13, 1903.”

The persons named qualified, entered upon the duties of inspector, and discharged them for some months. Thereafter the First Division of this court, on certiorari, annulled the proceedings of dismissal of the two inspectors, dismissed the force prior to June 23, 1903, and reinstated them. They resumed their duties. The practical result was 17 persons serving as inspectors, when the law limited the number to 15. Therefore, under advice from the corporation counsel, and in order to heed the law, the commissioner, on December 22, 1904, ordered Baldwin and Albertson, who were captains' in the department before and on' June 23, 1903, to resume the. duties of that grade, and assigned them to specific places. On January 16, 1905, the relator, upon his petition that the commissioner had made an order "depriving the petitioner of his said office in violation of the provisions of the charter,” prayed for a peremptory mandamus to

“There are now in the police department the full number of inspectors of police allowed by law, and that there is no fund available or authority of law for the payment of any larger number of inspectors of police than those at pvesent in service.”

The facts heretofore stated appeared by the affidavits before the learned Special Term upon this application. The. allegations of the answering affidavits for the purpose of the application are true. People ex rel. Pumpyansky v. Keating, 168 N. Y. 390 , 61 N. E. 637 , and authorities cited. The direction to Baldwin and Albertson to resume their duties as captains, respectively, was proper. People ex rel. Short v. Board of Fire Commissioners, 47 Hun, 528 , affirmed 114 N. Y. 67 , 20 N. E. 824 . The learned counsel to the corporation contends "that there was in the eye of the law on June 23, 1903, but one vacancy, while the learned counsel for the relator insists that there were two. I shall consider each contention.

If it appears that the commissioner could have appointed some other than Baldwin, the relator, that he named for the vacancy some one eligible, that such a one thereupon entered upon the discharge of the duties of the office, and was in such discharge at the time of the application before the court for a mandamus, then such a one was in the possession of the office .under color of right. Hamlin v. Kassafer (Or.) 13 Pac. 778 , 3 Am. St. Rep. 176 , and authorities cited; Mechem on Public Officers, §§ 321, 322. Assuming that there was one vacancy, Baldwin, the relator, Albertson, or Wiegand, as the first three on the list certified, were eligible, unless Wiegand must be preferred as a veteran. The commissioner named all three (on the supposition, of course, that there were four vacancies). The affidavit of the chief clerk of the department of police shows that Wiegand was a veteran, and that Wiegand was sworn in office. The affidavit of the commissioner shows that the number of inspectors authorized by law is full, and that there -is no fund available to pay other than those in service. I think, then, that when the relator, alleging that he had been deprived of his office, sought to regain it by mandamus, he thereby sought to determine the title to the office when some one was in possession thereof under color of right, and that the rule of People ex rel. McLaughlin v. Board of Police Commissioners, 174 N. Y. 450 , 67 N. E. 78 , 95 Am. St. Rep. 596 , is against him, and must obtain. There is a difference between the cases of Wiegand and Albertson in view of the decision in the latter’s case, reported in 92 N. Y. Supp. 1004 .

If there were two vacancies on June 23, 1903, due to the retirement of one inspector and the resignation of another handed in before that day, to take effect on July 12, 1903, I still think that the rule of McLaughlin’s Case, supra, must obtain. The rule of the municipal civil service commission, as set forth in the answering affidavits, is that it was the duty of the civil service commission “to certify the three highest names on the list for every vacancy which was to be filled.” There were certified but four names, which con

The learned counsel for the relator contends that the relator was entitled to a preference because a rule must appfy different from that applicable from that of ordinary appointment. Section 288 of the charter provides that promotions shall be made by the police commissioner as prescribed in section 124 of the act, on a basis of seniority, meritorious police service, and superior capacity, as shown by competitive examination, and that inspectors must be selected from captains who shall have served at least two years as such. The said section 124 provides as follows:

“All appointments, promotions and changes of status of persons in the public service of the city of New York shall be made in the manner prescribed in the Constitution of the state and in accordance with the provisions of chapter 3 of the General Laws, commonly known as the. ‘Civil Service Law,’ and such amendments as may be made thereto, and the provisions of this act.”

Section 10 of the White law provides for the appointment of a city civil service commission to prescribe, amend, and enforce rules for appointments and promotions therein, and examinations therefor. The rule of the municipal civil service commission in the answering affidavit requires that in case of promotions the commission shall certify the. three persons standing highest on the elegible list. The principle applicable was competitive examinations based upon seniority, meritorious public service, and superior capacity. The fact that the relator stood highest upon such an examination did not entitle him to appointment in the sense that the commissioner’s appointment must follow the result of the examination as a mere ministerial act. For this would be destructive of the principle, of appointment lodged in the commissioner, and would practically confer it on the examiners. People ex rel. Balcom v. Mosher, 163 N. Y. 32 , 57 N. E. 88 , 79 Am. St. Rep. 552 .

Order affirmed, with $10 costs and disbursements. All concur..