People ex rel. Hannan v. Bd. of Health of Troy

• Decision Date: 05 October 1897
• Citation: 47 N.E. 785,153 N.Y. 513
• Parties: PEOPLE ex rel. HANNAN v. BOARD OF HEALTH OF CITY OF TROY et al.
• Court: New York Court of Appeals Court of Appeals

153 N.Y. 513

47 N.E. 785

PEOPLE ex rel. HANNAN

v.BOARD OF HEALTH OF CITY OF TROY et al.

Court of Appeals of New York.

Oct. 5, 1897.

Appeal from supreme court, appellate division, Third department.

Application by William H. Hannan for a writ of mandamus to compel the board of health of the city of Troy and others to reinstate relator in the position of register to such board. From a judgment of the appellate division (44 N. Y. Supp. 597) affirming an order granting the writ, defendants appeal. Reversed.

William J. Roche, for appellants.

Thomas S. Fagan, for respondent.

VANN, J.

On the 20th of April, 1888, the board of health of the city of Troy, which was then organized pursuant to chapter 270 of the Laws of 1885, assumed to appoint the relator to the position of registrar of vital statistics, in the place of Samuel E. Hutton, who had resigned on the same day. At the time of such appointment, the relator had not passed, nor, so far as appears, has he at any time since passed, the examination required by the statutes regulating the civil service of the state. Laws 1883, c. 354; Laws 1884, c. 410. He assumed the duties of the position, and continued to discharge them until the 4th of June, 1896, when the new board of health, organized under chapter 661 of the Laws of 1893, without preferring charges or giving him an opportunity to be heard, dispensed with his services, and in his place employed one Edward Bolton, who has ever since performed the same duties, and has received the compensation allowed by law. The relator, who is an honorably discharged Union soldier, instituted this proceeding to compel the defendants, composing the board of health of the city of Troy, ‘to recognize and restore’ him to said position, upon the ground that said board had no power to discharge him until after a hearing upon due notice, founded upon a charge of misconduct or incompetency. No question is raised as to the regularity of the appointment of Mr. Bolton, who is not a party to the proceeding, provided there was a vacancy to be filled; and it is not denied that the defendants had authority to remove the relator at any time they saw fit, without hearing or notice, unless he was protected by some statute. People v. Lathrop, 142 N. Y. 113, 36 N. E. 805;People v. Morton, 148 N. Y. 156, 42 N. E. 538. He bases his claim to protection upon an amendment to the civil service act, passed in 1896, which, after giving preference ‘for appointment, employment, and promotion’ to ‘honorably discharged Union soldiers,’ provides that ‘no person holding a position by appointment or employment in the state of New York or of the several cities, counties, towns or villages thereof * * * who is an honorably discharged soldier, sailor or marine, having served as such in the Union army or navy during the war of the Rebellion, and who shall not have served in the Confederate army or navy, shall be removed from such position or employment, except for incompetency or misconduct shown, after a hearing upon due notice, upon the charge made.’ Laws 1896, c. 821; Laws 1894, c. 716; Laws 1884, c. 312. If, therefore, the relator held the position in question within the meaning of this statute, the action of the defendants in removing him without an opportunity to be heard was unauthorized, and he is entitled to relief. If, however, the words ‘holding a position,’ as used in the act, means only a lawful, as contrasted with a de facto, title, the statute has no application, and affords no protection to the relator. When the legislature forbade the summary removal from office or employment of a veteran of the late war holding a position in the state, or one of its political divisions, it did not refer to a usurper, or to one who simply had possession of an office without lawful authority, but to one who held his position according to law, and by virtue of a valid appointment or employment. In a civilized community, ‘holding a position’ means lawfully holding it, and it would be unreasonable to declare that the legislature meant by that expression to include those who held office by force, fraud, mistake, or without any right thereto. A statute should receive a sensible construction, in conformity to reason and justice, unless the language used is so clear and explicit as to prevent it. It is to be presumed that the legislature did not intend to work public mischief, and when the words of a statute admit of two constructions, one of which is just and reasonable, and the other not, the former will be preferred. Smith v. People, 47 N. Y. 330;Rosenplaenter v. Roessle, 54 N. Y. 262;Penoyar v. Kelsey, 150 N. Y. 77, 83,44 N. E. 788. We do not think it was the intention of the act to legalize illegal appointments throughout the state, even if the appointees were veterans, as that would not only be unjust to worthy veterans who had duly qualified for appointment by passing the civil service examination, but also might lead to serious public inconvenience. Laws 1886, c. 29, § 2. Both the title and the text of the statute, as amended at different times, indicate an intention to retain in the public service qualified and legally appointed soldiers of the late war, subject to removal only ‘for incompetency or misconduct shown.’ Laws 1884, c. 312; Laws 1887, c. 464; Laws 1894, c. 716; Laws 1896, c. 821. The words ‘incompetency,’ ‘removed,’ and ‘appointment,’ as used in the act relied upon by the respondent, in the absence of anything to indicate a different intention, imply a legal appointment; and, if the legislature had intended to make valid all invalid appointments, the presumption is that it would have issued its command upon so important a subject in clear and express terms. The object of the act was to protect those lawfully appointed or employed from removal without a chance to be heard.

As the position in question was subject to the civil service statute and rules, the failure of the relator to pass the examination required made his appointment illegal, for it was expressly prohibited by the act ‘to regulate and improve the civil service of the state,’...