People ex rel. Cummings v. Koch — 2 N.Y. St. Rep. 110

Majority

p. 110

People ex rel. John F. Cummings, appellant, v. Joseph Koch, et al., commissioners composing Board of Docks,, etc., of the city of New York.

(Supreme Court, General Term, First Department,

Filed June 1, 1886.)

Headnote

1. New York (city of)—Secretary of commissioners of docks may be. REMOVED AT WILL—CONSOLIDATION ACT, LAWS 1882, CHAP. 410, § -48.

The prohibition as to removal contained in section 48 of the consolidation act does not apply to the secretary of the dock department. He is not the head of a bureau or a regular clerk within the meaning of this section, and. can therefore be removed by the commissioners at will.

2. Same—Certiorari—Effect of failure to traverse or deny return to .

Where the relator fails to traverse or deny the sufficiency of the return to a writ of certiorari, the facts alleged therein must be taken as conclusive.

• Certiorari to review proceedings of the board of docks, by which the relator was removed from the office of secretary to said board.

By his petition upon which the writ of certiorari was issued, the relator claims that from the 16th day of November, 1881, to the 18th day of September, 1885, he being the secretary of the dock department of the city of New York, was a regular clerk appointed by the board, whose duty it was to keep the minutes of the board and its records, papers and documents, and to receive and transmit all communications to and from the board. And further, that he was head of a bureau in the department of docks, and that it was his duty to superintend the preparation of, and lay

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before the board of that department, all forms of leases, specifications, proposals and contracts, advertisements for proposals of contracts, and all notices, orders and requisitions, communications and reports of the board. It is further alleged by him, that on the 18th day of September, 1885, he was removed from such office by the respondents-without cause and without charges, and without any opportunity of defense.

The return of the respondents denies that the relator was. either a head of a bureau, or a regular clerk in their department, and alleges that the relator was only a simple secretary, holding confidential relations to them, and was authorized to receive moneys for them, and required to give a bond to the treasurer for the faithful performance of his duties. The relator himself, in his communication to the board of September 21, 1885 (Exhibit B), mentioned the relation he bore to the board as that of secretary only, and not that of either a regular clerk or the head of a bureau.

Messrs. Vanderpoel, Green & Cuminy, and Mr. Henry Thompson, for relator.

Mr. E. Henry Lacombe, counsel to the corporation, and Mr. D. J. Dean, counsel for respondents.

The character of the duties and office of the relator must be determined by the return which the respondents have made to the writ of certiorari. By proceeding to argument thereon, with no traverse of it or denial of its sufficiency, the facts therein alleged must be taken as conclusive. People ex rel. Sims v. Fire Commissioners, 73 N. Y., 439 . But the contention of the relator, when read with his protest addressed to the board, is no more than that by virtue of his duties as secretary he became either the head of a bureau or a regular clerk. If he was the head of a bureau, his office would naturally be mentioned and his duties defined somewhere in the consolidation act, which has been searched in vain for a recognition of him in that capacity, while there are sundry bureaus mentioned in the other executive departments, ranging from two to eight in number in each, specifically enumerated and provided for. See sections 123, 317, 216, 381, 429 and 534.

It is difficult to see how the limitation imposed by section 48, restricting the right of removal, can be extended by implication to cases which the statute does not distinctly cover. People ex rel. Emerick v. Fire Commissioners, 36 N. Y., 149 .

The only remaining question is whether the relator can work out a tenure of office through the clerical duties which a secretary in almost any capacity necessarily dis

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charges, and thereby be deemed a regular clerk within the sense expressed by that term in section 48 of the consolidation act. It is manifest that this is to be determined primarily by the statute, which may or may not say that an employee, having a particular appellation (as a head of a bureau) shall be removable for cause, and without an opportunity to be heard in explanation, or secondarily, by the fact that his duties are so distinctively defined as one of a •class of employees (such as regular clerks) as necessarily to ■fall within the prohibition. If the relator came within the ■description of either of these persons, he is entitled to the protection which the act gives him.' By reference, however, to section 118 of the consolidation act, it is seen that the dock commissioners must appoint a secretary and such -subordinate officers, clerks and agents as shall be necessary, etc. Here the office of secretary is distinctly mentioned, -as well as such subordinate officers, clerks and agents as may be necessary, etc. The inhibitory section (48) then applies and declares that of all these employees, those bearing a distinctive name, and so charged with precise duties which strictly appertain to their employment, namely, regular clerks, shall not be removed except as therein prescribed. The commissioners being thus empowered to employ assistants bearing different appellations, and by so much charged with diverse duties, and the statute selecting out of the whole number certain persons, namely, regular clerks, for its protection against summary removal, an elementary rule of construction would lead to the conclusion that a designation of the one would necessarily exclude the other, and that a prohibition against removing a regular clerk or a head of a bureau only left the ■commissioners free to appoint and remove the secretary at will.

The writ should be dismissed with costs.

Daniels and Brady, JJ., concur.