People ex rel. Bender v. Milliken

CourtNew York Court of Appeals
Citation185 N.Y. 35,77 N.E. 872
PartiesPEOPLE ex rel. BENDER v. MILLIKEN et al.
Decision Date24 April 1906


Appeal from Supreme Court, Appellate Division, Third Department.

Action by the people, at the relation of Harry H. Bender, against Charles F. Milliken and others, constituting the civil service commission and others. From an order of the Appellate Division (97 N. Y. Supp. 223,110 App. Div. 579), affirming an order of the Special Term denying a motion for a writ of prohibition to restrain the commission from further proceedings in an investigation as to an alleged violation by the relator of the civil service law, relator appeals. Affirmed.

Edwin Countryman, for appellant.

Julius M. Mayer, Atty. Gen. (Horace McGuire, of counsel), for respondent Civil Service Commission.

Nelson S. Spencer, for respondents Edwin H. Goodwin and others.


The relator is the fiscal supervisor of state charities, an office created by chapter 252, p. 665, of the Laws of 1902. Complaint having been made to the respondents, the members of the state civil service commission, by one Doty, a clerk in the office of the relator, that he had been solicited to make a political contribution from his salary in the year 1902, the respondents proceeded to investigate the complaint, and examined witnesses as to the subject-matter thereof. They entitled their proceedings ‘In the Matter of Alleged Violation of Section 24 of the Civil Service Law in the Department of the Fiscal Supervisor of State Charities.’ The testimony taken by them tended to show that the solicitations were made by one Prescott, and it possibly, to some extent, reflected on the relator; the complainant testifying that after the solicitation by Prescott he spoke of the matter to the relator, who replied: ‘I will talk with you about this some other time.’ The testimony of other employés in the office was to the effect that they had made such contributions to the relator personally, but it was asserted that they were made voluntarily and without solicitation. After this testimony was taken, one of the respondents moved that the hearing be suspended and a copy of the minutes and evidence be sent to the relator and Prescott in order that they might have a chance to answer, and that a date be fixed in the future to give them an opportunity to make any defense. The motion was carried, and in accordance with this the following letter was sent by the secretary of the commission: ‘Albany, July 17, 1905. Mr. Harry H. Bender, Fiscal Supervisor of the State Charities, Albany, N. Y.-My dear Mr. Bender: By direction of the state civil service commission, I transmit to you herewith a copy of the affidavit of Edwin A. Doty, and testimony taken by the state civil service commission July 14, 1905, in the matter of the alleged violation of section 24 of the state civil service law, in the office of the fiscal supervisor of state charities. If you desire a hearing in this matter, will you kindly indicate an early date for the same. Very respectfully, John C. Birdseye, Secretary.’ At the subsequent hearing the relator appeared by his counsel and protested against the authority of the respondents to prosecute the investigation. The protest having been overruled, an alternative writ of prohibition was served on the respondents, to which they duly made a return. After a hearing on the return, the application for the writ was denied by the Special Term, and the order denying the writ has been affirmed by the Appellate Division as a matter of law and not of discretion.

We are of opinion that the action of the courts below was proper. ‘A writ of prohibition is that process by which a superior court prevents an inferior court or tribunal from usurping or exercising a jurisdiction with which it has not been vested by law.’ Spelling on Extraordinary Remedies, § 1716, Courts almost universally preserve the original common-law features of the writ of prohibition, and confine its use to the prevention of usurpation or excess off jurisdiction by courts and bodies possessing, for certain purposes and in certain instances, quasi judicial powers.’ Id. § 1722. ‘The office of a writ of prohibition is to restrain subordinate courts and inferior tribunals of every kind from exceeding their jurisdiction.’ Quimbo Appo v. People, 20 N. Y. 531. It does not lie to prevent action by administrative or legislative bodies. Spelling on Extraordinary Remedies, § 1722. See cases there cited. The learned counsel for the appellant does not gainsay this principle, but insists that theaction of the respondents was of a judicial character; and he further insists that the attempt of the Legislature to confer on the commission judicial powers was unconstitutional and invalid. We entertain a contrary opinion as to the proceedings sought to be restrained. They are administrative, not judicial. By subdivision 3, § 6, of the civil service law (Laws 1899, p. 797, c. 370), the state civil service commission is directed to ‘Make investigations concerning and report upon all matters touching the enforcement and effect of the provisions of this act and the rules and regulations prescribed thereunder, concerning the action of any examiner or subordinate of the commission and any person in the public service, in respect to the execution of this act, and in the course of such investigations each commissioner and the secretary and the chief examiner shall have power to administer oaths.’ The commission is further authorized to subpoena and require the...

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13 cases
  • Nicholson v. State Commission on Judicial Conduct
    • United States
    • New York Court of Appeals
    • July 1, 1980
    ...9, 376 N.E.2d 171); it may not be sought to control merely legislative, executive or administrative acts (see People ex rel. Bender v. Milliken, 185 N.Y. 35, 77 N.E. 872; Matter of Kaney v. New York State Civ. Serv. Comm., 190 Misc. 944, 77 N.Y.S.2d 8, affd. 273 App.Div. 1054, 81 N.Y.S.2d 1......
  • North Bellmore Teachers Ass'n v. Board of Ed. of Union Free School Dist. No. 4
    • United States
    • United States State Supreme Court (New York)
    • November 15, 1971
    ...classical doctrine is that prohibition does not lie to prevent action by legislative or administrative bodies, People ex rel. Bender v. Milliken, 185 N.Y. 35, 39, 77 N.E. 872, 873; cf. Thomson v. Tracy et al., 60 N.Y. 31, 37; Matter of DeSantis v. Brown, 37 A.D.2d 865, 325 N.Y.S.2d 60 (3d D......
  • Dunham v. Ottinger
    • United States
    • New York Court of Appeals
    • November 16, 1926
    ...of Hirshfield v. Cook, 227 N. Y. 297, 125 N. E. 504;Matter of Hirshfield v. Hanley, 228 N. Y. 346, 127 N. E. 252;People ex rel. Bender v. Milliken, 185 N. Y. 35, 77 N. E. 872;People v. Ellenbogen, 114 App. Div. 182, 99 N. Y. S. 897, affirmed, 186 N. Y. 603, 79 N. E. 1112;Matter of Union Ban......
  • Terrell v. King
    • United States
    • Supreme Court of Texas
    • March 7, 1929
    ...of the Legislature. Interstate Commerce Commission v. Brimson, 154 U. S. 474, 14 S. Ct. 1125, 38 L. Ed. 1056; People ex rel. Bender v. Milliken, 185 N. Y. 35, 77 N. E. 872. No less effect should be given to the designation outside experts by the Governor, by direction of the Legislature, th......
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