In re Christey

• Decision Date: 12 May 1914
• Citation: 211 N.Y. 333,105 N.E. 419
• Parties: In re CHRISTEY.
• Court: New York Court of Appeals Court of Appeals

211 N.Y. 333

105 N.E. 419

In re CHRISTEY.

Court of Appeals of New York.

May 12, 1914.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Application by Arthur B. Christey for a writ of mandamus against John F. Cochrane, as Comptroller of the City of Buffalo, and another. From an order of the Appellate Division, Fourth Department (147 N. Y. Supp. 1103), affirming an order of the Special Term (84 Misc. Rep. 172,145 N. Y. Supp. 685) granting a peremptory writ of mandamus requiring the defendant Cochrane to reinstate the applicant in the position of Auditor of the City of Buffalo, and requiring and commanding the defendant Joseph M. Gleason forthwith to vacate such position, defendants appeal. Reversed.

One Anselm J. Smith was appointed auditor of the city of Buffalo January 4, 1886, and served continuously in said office to the time of his death, December 27, 1913. January 1, 1902, the defendant Gleason was appointed by Mr. Smith to the position of clerk in the office of the auditor and continued to serve in that position until subsequent to January 1, 1914. During the year 1913, William G. Justice was comptroller of the city of Buffalo; he was succeeded by the defendant John F. Cochrane, who assumed the duties of the office January 1, 1914.

On December 29, 1913, Mr. Justice, pursuant to the provisions of section 58 of the charter of the city of Buffalo, appointed the applicant, Arthur B. Christey, to be auditor of the city of Buffalo, which appointment was approved by the common council of the city on December 31, 1913. On the same day the applicant caused to be served upon the mayor, comptroller, and common council of the city, and the defendant Cochrane, as comptroller-elect of the city, notice that he (the applicant) was an honorably discharged soldier of the Spanish American War, and that he had also served as such during the incidental insurrection in the Philippines, and as such honorably discharged soldier he claimed the rights and privileges conferred upon him by statute and by the Civil Service Law.

January 14, 1914, the defendant Cochrane, as comptroller, notified the applicant that he had been removed from the office of auditor, and thereupon the comptroller with the approval of the common council of the city appointed the defendant Gleason to the position of auditor. On the same day Gleason subscribed the oath of office and filed the same with his bond with the city clerk. The applicant again notified the defendant Cochrane as comptroller of his claim to immunity from removal, and thereupon secured a peremptory writ of mandamus to compel his reinstatement, and requiring the defendant Gleason to forthwith vacate the position of auditor of said city.

Upon appeal, the order granting such mandamus was affirmed, and the defendants Cochrane and Gleason appeal to this court.William S. Rann, Corp. Counsel, of Buffalo (Jeremiah J. Hurley, of Buffalo, of counsel), for appellant Cochrane, as comptroller.

Daniel J. Kenefick, of Buffalo, for appellant Gleason.

Simon Fleischmann, of Buffalo, for respondent.

HOGAN, J. (after stating the facts as above).

[1] Numerous cases involving the rights of veterans to be retained in office have been presented to the courts of this state for determination. In a number of opinions reference has been made to the beneficent purposes of the laws enacted for the protection of veterans, and the reported cases indicate the care exercised by the courts in the preservation of the rights of veterans under the statute. Nearly 20 years ago this court construed the Veteran Act, and Judge Andrews, writing, said:

‘It was intended to create a privileged class entitled to preferential employment in subordinate positions in the public service; the foundation of the preference being meritorious service as soldiers and sailors in the war. * * * The preference is given not only in clerical or other subordinate positions, but to every person seeking public employment as a laborer on the canals or on the streets of a city, or in any capacity however humble.’ People ex rel. Fonda v. Morton, 148 N. Y. 156, 162, 163,42 N. E. 539, 540.

A few years later, in People ex rel. Jacobus v. Van Wyck, 157 N. Y. 495, 503,52 N. E. 559, 561, Chief Judge Parker, writing for this court, quoted the language of Chief Judge Andrews from the Fonda Case, and wrote:

‘This interpretation of the statute is in accord with the general understanding of it, and is borne out by the title of the act, which is ‘An act respecting the employment of honorably discharged Union soldiers and sailors in the public service of the state of New York, relative to removals.’ Certainly the title does not suggest that public officers, vested with discretion in the performance of their duties, subject to no direction, but on the contrary empowered to appoint clerks and other subordinates and fix their compensation, were intended to be affected by the statute, the purpose of which was stated in its title. And as the term ‘position’ that the statute makes use of is an indefinite one and may include officers or be limited to cases of employés, it is proper to refer to the title of the statute to determine its scope and intent. People ex rel. Westchester Fire Insurance Co . v. Davenport, 91 N. Y. 574;People ex rel. Collins v. Spicer, 99 N. Y. 225 ;Bell v. Mayor, etc., 105 N. Y. 139 .

‘Thus referring to the title, and according to it its proper weight, we readily perceive that the word ‘position’ in the connection in which it is used is intended to embrace all subordinate places in the public service, and that the statute is limited in its operations to those engaged in the public employment, as that term is ordinarily used, which does not include the more important municipal offices.

‘So far as we have observed, the view taken by Chief Judge Andrews, that the veteran acts apply only to subordinate positions, it in harmony with all judicial expression on the subject, and is not only justified but required by the statute when its provisions are read in connection with its title.’

We have called attention to the language adopted by this court in the cases cited, because of the criticisms made in this case upon the decisions, and for the purpose of restating the principles of law which must govern in the construction of the statutes as they exist at the present time.

In the Jacobus Case Chief Judge Parker said:

‘It will be difficult at times to determine whether a given position is a subordinate one or not, and possibly no rule can be laid down by which one class can always be readily distinguished from the other.’

[2] Following the decision in the Jacobus Case, it is necessary to ascertain whether or not the position of auditor of the city of Buffalo is an independent office charged with the performance of important public duties, or a subordinate position, and for that purpose reference must be had to the charter and ordinances of the city to ascertain the method of appointment to the office of auditor, the sources and nature of the duties imposed upon the person so appointed, the character and extent of the powers to be exercised, and to what officer or body the auditor is inferior or subordinate (if any).

Section 58 of the charter of the city of Buffalo (Laws 1891, c . 105) provides that the auditor shall be appointed by the comptroller with the advice and consent of the common council.

Section 17, subd. 2, of the charter, as amended by chapter 120 of the Laws of 1909, authorized the common council from time to time to enact ordinances--

‘to prescribe the duties of all officers or persons, elected or appointed under this act not herein prescribed; to prescribe methods of auditing and paying any and every indebtedness of the city and any and every claim against the city; to prescribe the manner in which and the purposes for which the moneys annually appropriated may be used; to prescribe the methods by which the city may incur indebtedness; to prescribe the methods by which each and every official or person in the employ of the city shall keep or asist in keeping account of the receipts and disbursements of moneys belonging to the city, and of work done for or supplies or materials furnished to the city; any provision of this act to the contrary notwithstanding.’

Subsequent to the amendment of 1909 the common council of the city of Buffalo did enact ordinances, so far as important here, as ordinances, so far as important here, as follows:

The first sentence of subdivision 18 of section 8, c. 3, provided:

‘The comptroller, by and with the advice and consent of the common council, shall appoint an auditor, whose duty it shall be to examine all claims of every kind against the city, and to certify in writing as provided in the ordinances

.’

As heretofore stated, the power of the comptroller to appoint an auditor existed under section 58 of the city charter.

What claims do the ordinances require shall be certified in writing by the auditor? The form of the claim is provided for by section 8, which requires that all claims of every nature against the city (except for principal and interest upon bonds of the city and for salaries or wages of employés) must be in writing and verified by the claimant as just and correct. If for work, labor, or services of any kind, merchandise, materials, or articles of any kind, for which the cost does not exceed $500, the claims must state the place where, the time...