People ex rel. Jacobus v. Van Wyck

• Court: New York Court of Appeals
• Writing for the Court: PARKER
• Citation: 52 N.E. 559,157 N.Y. 495
• Decision Date: 10 January 1899
• Parties: PEOPLE ex rel. JACOBUS v. VAN WYCK, Mayor.

157 N.Y. 495
52 N.E. 559

PEOPLE ex rel. JACOBUS
v.
VAN WYCK, Mayor.

Court of Appeals of New York.

Jan. 10, 1899.

Appeal from supreme court, appellate division, First department.

Mandamus by the people, on the relation of John W. Jacobus, against Robert A. Van Wyck, as mayor of the city of New York. An order granting a peremptory writ (53 N. Y. Supp. 71) was reversed by the appellate division (Id. 914), and relator appeals. Affirmed.

Bartlett, J., dissenting.

Elihu Root and [157 N.Y. 495]Henry L. Stimson, for appellant.

John Whalen, [157 N.Y. 496]Theodore Connoly, and Terence Farley, for respondent.

[157 N.Y. 498]PARKER, C. J.

The order appealed from must stand, because: (1) In the language of this court in People v. Jeroloman, 139 N. Y. 14, 18,34 N. E. 727, ‘the order of the general term of the supreme court [in this case, the appellate division] does not state upon what ground the decision is based, and the writ may have been refused as a matter of discretion. We do not look into the opinion for the grounds upon which the court proceeds in such cases.’ The record discloses that the orders in the two cases are in all essential respects alike, and therefore the decision in Jeroloman's Case is controlling in this one. (2) If the merits be open for consideration, then should the order be affirmed on the ground that the position of assessor in New York is not affected by chapter 821 of the Laws of 1896, entitled ‘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?’

The relator, Jacobus, was in office as one of the assessors of the city and county of New York at the time that city, with Brooklyn and various other communities, became united into one municipality, under and by virtue of chapter 378 of the Laws of 1897. Promptly upon the inauguration of the new city government, the mayor appointed five persons to constitute the board of assessors, as section 943 of the charter required him to do. But the appellant insists that, while the mayor obeyed that section of the statute, he disobeyed section [157 N.Y. 499]127 of the charter, which made it his duty to retain in like position, and under the same conditions, all persons who were, at the termination of the former municipal government, entitled to serve during good behavior, or who could not be removed except for cause; that the two sections should be read together, and, reasonably construed, they mean that, while the mayor has the power and it is his duty to appoint a board of assessors, still, if there should happen to be at the time of the

[52 N.E. 560]

appointment an incumbent of a similar position who was an honorably discharged veteran, then he should select that person as one of his appointees.

The question that we think is involved on this review is whether the office in controversy is within the provisions of the so-called ‘Veteran Acts.’ This query is important to a class, for it involves the claim of right to a continuance in office in other than subordinate positions, during life, or good behavior rather, of what has become a very large class, namely, all honorably discharged soldiers, sailors, or marines who have served as such in the Union army or navy during the Rebellion or in the Mexican war, or who shall have served the term required by law in the volunteer fire department of any city, town, or village in the state. Laws 1896, c. 821; Laws 1898, c. 184. It is important to the public, for there are many positions in the various municipal governments in this state in which the incumbent is required to exercise a substantial measure of discretion, affecting the rights and interests of a large portion, if not all, of those interested in the municipality. It has generally been deemed wise to keep the terms of such officers comparatively short, so that the people may frequently have opportunity to make changes, provided the incumbents prove unsatisfactory. And they do frequently make changes, often for the better, when, if it were necessary to make out a cause for removal for incompetency or misconduct, such a result could not be accomplished. There are occasionally men who are competent and never guilty of such misconduct as would support their removal from office, and who yet ought not to fill one, because their [157 N.Y. 500]conception of their own importance and special worthiness to discharge all the duties of any position without the least suggestion from others causes them to manifest such irritability at the inquiries of the timid touching their supposed rights as to persuade the latter to suffer small injustices rather than further prosecute their grievances. There are certainly quite enough men of this type, and of other types not much less objectionable, that could be readily suggested, did the limits of an opinion permit, to justify the plan, always approved by the people, of short terms for all important executive and legislative positions. But the refusal to grant life terms, unless removed for cause, has been in part at least placed upon a broader foundation, viz. the inherent difficulty attending the removal of a public officer for incompetency or misconduct. Individuals will ordinarily bear in silence the wrongs that an entire community suffer from one in authority, rather than take upon themselves the expense, annoyance, and notoriety incident to a prosecution. And, when prosecution in such a case is undertaken, it quite too often fails, because the dishonor attending removal is so great as to beget great sympathy for the accused, which, in turn, prompts the triors to take a charitable view of the first offense and of minor offenses...