People ex rel. Hoefle v. Cahill

• Decision Date: 21 May 1907
• Citation: 188 N.Y. 489,81 N.E. 453
• Parties: PEOPLE ex rel. HOEFLE v. CAHILL, Coroner of Borough of Richmond in City of New York.
• Court: New York Court of Appeals Court of Appeals

188 N.Y. 489

81 N.E. 453

PEOPLE ex rel. HOEFLE

v.CAHILL, Coroner of Borough of Richmond in City of New York.

Court of Appeals of New York.

May 21, 1907.

Appeal from Supreme Court, Appellate Division, Second Department.

Proceedings by the people, on the relation of Charles Hoefle, against Matthew Cahill, coroner of borough of Richmond in city of New York. Plaintiff appeals from an order of the Appellate Division, Second Department (102 N. Y. Supp. 325) reversing an order of the Supreme Court at Special Term directing a peremptory writ of mandamus to issue. Reversed.

George M. Pinney, Jr., for appellant.

Wm. B. Ellison, Corp. Counsel (James D. Bell, of counsel), for respondent.

HISCOCK, J.

Section 1571 of the Greater New York charter (Laws 1901, p. 646, c. 23), amongst other things, provides as follows: ‘The coroners in each borough shall have an office in said borough and shall appoint a clerk who shall receive an annual salary to be fixed by the board of estimate and apportionment and the board of aldermen, and such and so many assistant clerks as shall be provided for in the annual budget. They shall also appoint a stenographer in each borough,’ etc. Under and in accordance with the terms of this provision the relator was appointed and entered upon the discharge of his duties as clerk to the coroner of the borough of Richmond. Concededly he was a member of a volunteer fire department in the county of Richmond at the time of its disbandment on November 1, 1905, and as such came within the provisions of section 21 of the Civil Service Law (chapter 370, p. 809, Laws 1899, as amended), which, amongst other things, enacted that ‘no person holding a position by appointment or employment in the state of New York * * * who shall have served the term required by law in the volunteer fire department of any city, town or village in the state, or who shall have been a member thereof at the time of the disbandment of such volunteer fire department shall be removed from such position except for incompetency or misconduct shown after a hearing upon due notice upon stated charges. * * * Nothing in this section shall be construed to apply to the position of private secretary, cashier, or deputy of any official or department.’ Laws 1904, p. 1694, c. 697.

There was no evidence that relator held ‘the position of private secretary, cashier or deputy,’ and therefore came within the exceptions to the limitation upon the right of removal expressed in the section as above quoted. Thereafter concededly he was removed and dismissed from his position without any hearing whatever. Save for one reason hereinafter to be referred to, it is undisputed that upon the record as now presented the relator was entitled to a writ of mandamus compelling his reinstatement, if the place to which he had been appointed, and from which he was removed, was a clerical or subordinate position as distinguished from a public office. The learned Appellate Division, in reversing the order made by the Special Term granting the writ, reached the conclusion that he had been appointed to and was holding an ‘office,’ and that, therefore, he could not secure relief by a writ of mandamus, but must resort to an action of quo warranto directed against the occupant appointed after his removal. We think that the court took an erroneous view of the nature of relator's position, and that most clearly the latter was not an office as defined by the law in connection with such a proceeding as this. The statute under which relator was appointed furnishes the test by which to determine this question. Such statute first directs attention to the coroner as the head of the department of government under consideration. It then provides that he ‘shall appoint a clerk * * * and such and so many assistant clerks as shall be provided for * * * also appoint a stenographer.’ This statute does not assign any original, independent, or governmental duties to the position of clerk thus created any more that it does to that of assistant clerk or stenographer. Its plain meaning as a whole is that the coroner charged with various statutory duties and responsibilities shall have the power to appoint a clerical force which, under his direction and subject to his orders and control, shall assist him in the administration of the duties of his office by performing such routine and subordinate duties as may be assigned to them. There is entirely lacking any suggestion of those powers and responsibilities and of that independent action upon the part of one of these clerks which are inevitably incidental to a public office.

We think that what was said in the case of People ex rel. Corkhill v. McAdoo, 98 App. Div. 312,90 N. Y. Supp. 689, with reference to the position of complaint clerk in the police department, is entirely applicable. The court there said: ‘We are of opinion, however, that the position held by the relator, and which is not prescribed by the statute, is that of a regular clerk, whose duties relate, not to the public, but to the police commissioner, who is charged with the discharge of the duties of the office, and who is authorized ‘to appoint and remove * * * such clerks * * * and other subordinates, assistants and employés as may be reasonably necessary to the proper performance of the duties and execution of the powers and functions of the police department created by this act, or of any of the component parts thereof, and to prescribe their respective ranks and duties.’ * * * It is clear, we think, that the relator, appointed under this authority to aid and assist the police commissioner in the discharge of the duties which he owes to the public, is not a public officer. [Citations.] The essential element in a public office is that the duties to be performed shall involve the exercise of some portion of the sovereign power, whether great or small. 23 Am. & Eng. Ency. of Law (2d Ed.) 322, and authorities cited in the notes; Attorney General v. Drohan, 169 Mass. 534, 535, 48 N. E. 279,61 Am. St. Rep. 306. And it can hardly be contended that a clerk, performing routine duties in strict subordination to a public officer, and with no authority under the statute to do anything except where it is authorized and directed by such officer, is exercising any of the sovereign powers. He is merely doing the detail work of the officer who is exercising the sovereign powers delegated to him by law, and under the authorities cited last above the relator is not a public officer.' See, also, People ex rel. Coveney v. Kearny, 44 App. Div. 449,61 N. Y. Supp. 41;People ex rel. Jacobus v. Van Wyck, 157 N. Y. 495, 504, 506,52 N. E. 559. We do not think that the authorities cited by the learned Appellate Division as supporting their conclusions do justly bear that construction. In O'Hara v. City of New York, 46 App. Div. 518,62 N. Y. Supp. 146, the plaintiff was seeking to recover the salary attached to a position from which he had been improperly removed, and the substantial question under consideration was whether he had been...