People ex rel. Fonda v. Morton

• Decision Date: 07 January 1896
• Citation: 42 N.E. 538,148 N.Y. 156
• Parties: PEOPLE ex rel. FONDA v. MORTON et al.
• Court: New York Court of Appeals Court of Appeals

148 N.Y. 156

42 N.E. 538

PEOPLE ex rel. FONDA

v.MORTON et al.

Court of Appeals of New York.

Jan. 7, 1896.

Appeal from supreme court, general term, Third department.

Proceedings on the relation of Fred P. Fonda against Levi P. Morton and others for a writ of mandamus. From an order of the general term, without opinion, affirming an order of the special term denying the writ, relator appeals. Affirmed.

F. M. Danaher, for appellant.

Henry C. Nevitt, for respondents.

ANDREWS, C. J.

The relator, an honorably discharged Union soldier, was appointed on the 29th of January, 1888, an orderly in the capitol at Albany, at a salary of $60 a month, and continued to act as orderly until the 28th of February, 1895, when he was discharged by the superintendent of public buildings, with the approval of the trustees, consisting of the governor of the state, the lieutenant governor, and the speaker of the assembly. His duties were to wash and clean floors, and to act as policeman and guide in the capitol. After his discharge he applied for a peremptory writ of mandamus directing his reinstatement in his position, claiming that his discharge was unlawful. It appeared from the return to his application that he was discharged for cause, or, as stated therein, for ‘incompetency and conduct inconsistent with said position.’ The relator, without denying the fact so alleged in the return, insisted, notwithstanding, that he was entitled to the peremptory writ, and the fact so returned must be taken as true in this proceeding. The discharge of the relator was not preceded by formal charges, or by notice to the relator, or an opportunity to be heard as to the cause of his dismissal. This presents the only question in the case,-whether the relator was entitled to a notice and hearing before he could be removed. By section 4, subd. 3, of the public building law (chapter 227 of the Laws of 1893), which was a substantial re-enactment of chapter 349 of the Laws of 1883, the superintendent of public buildings is authorized, ‘subject to approval of the trustees, to appoint all persons necessary in the maintenance department of the public buildings and grounds under his charge, and suspend and remove any of them, and prepare rules and regulations for their government.’ In the appropriation bills passed by the legislature in each successive year, commencing with 1886, there was inserted in the clause making an appropriation for the care of the public buildings, the salary of the superintendent, and the services of orderlies and watchmen, and other expenses, a proviso that the orderlies and watchmen who should receive any portion of the money so appropriated ‘shall be persons who are citizens of the state of New York, and who served in the Union army or navy during the late war, and have been honorably discharged therefrom; and such honorably discharged persons shall not be subject to civil service rules of examination.’ Laws 1886, p. 650. If there was no other legislation affecting the present question, the right to discharge orderlies employed in the capitol, summarily, would admit of no question. The power to remove employés is given, in express terms, by the public building act, to the superintendent, with the approval of the trustees, without qualification; and, even in the absence of such specific power, the rule is well settled that the power to appoint to the public service carries with it, to the appointing power, in the absence of limiting words or of a fixed term, the right to remove the appointee at pleasure. People v. Robb, 126 N. Y. 180, 27 N. E. 267, and cases cited.

But the relator relies upon chapter 716 of the Laws of 1894, which was an act amending chapter 312 of the Laws of 1884, entitled ‘An act respecting the employment of honorably discharged Union soldiers and sailors in the public service of the state of New York,’ as containing a limitation upon the power of removal of Union soldiers and sailors employed in the public service, applicable to the position of the relator. The original act of 1884 related to preferences in public employment only, and declared that honorably discharged Union soldiers and sailors, not incapaciated, and possessing the requisite qualifications, should be preferred for appointment and employment in the public departments and upon all public works of the state. This act was amended by chapter 464 of the Laws of 1887 by extending it so as to subject cities, towns, and villages to the same rule, and a section was added enjoining upon all officials and persons possessing the power of appointment a faithful compliance with the act. The obligation to give preference was, after the passage of the original act and the amendment of 1887, and cognate acts, sought to be enforced in the courts by Union soldiers, applicants for appointment to public office; among others, by an applicant for the office of superintendent of pubic works of a village (People v. Village of Saratoga Springs, 54 Hun, 16, 7 N. Y. Supp. 125); for employment as court crier (People v. Wendell, 57 Hun, 362, 10 N. Y. Supp. 587); for the office of village attorney (People v. Village of Little Falls [Sup.] 8 N. Y. Supp. 512, 960); collector of taxes (People v. Barden [Sup.] Id. 960); health inspector (People v. Summers [Sup.] 9 N. Y. Supp. 700); and in other cases. These attempts generally failed. The relator in such an application could not show that he was entitled in preference to other Union soldiers, and the decision of the appointing power as to fitness, actual or relative, must generally, from the nature of the case, be final. This court in People v. Lathrop, 142 N. Y. 113, 36 N. E. 805, had occasion to consider whether the act of 1884, giving preferences in public employments to Union soldiers and sailors,...