Peoples ex rel. La Chicotte v. Best

• Decision Date: 08 January 1907
• Citation: 187 N.Y. 1,79 N.E. 890
• Parties: PEOPLE ex rel. LA CHICOTTE v. BEST.
• Court: New York Court of Appeals Court of Appeals

187 N.Y. 1

79 N.E. 890

PEOPLE ex rel. LA CHICOTTE

v.BEST.

Court of Appeals of New York.

Jan. 8, 1907.

Appeal from Supreme Court, Appellate Division, First Department.

Mandamus by the people, on relation of Henry A. La Chicotte, against George E. Best, as commissioner of bridges of the city of New York. From an order of the Appellate Division (98 N. Y. Supp. 1112,112 App. Div. 912) unanimously affirming an order of the Special Term quashing an alternative writ of mandamus on questions of law only, and not by reason of the exercise of any discretion invested in the court, relator appeals. Order reversed, and motion to abate proceedings denied.

Francis G. Caffey and J. Quintus Cohen, for appellant.

John J. Delany, Corp. Counsel (William B. Crowell and Theodore Connoly, of counsel), for respondent.

HAIGHT, J.

The relator, after passing the civil service examination, had been appointed as principal assistant engineer in the department of bridges in the city of New York, and as such received an annual salary of $6,000. The defendant, Best, was the commissioner of bridges, and on the 2d day of December, 1904, he, in writing, notified the relator that his services had been found to be unnecessary, and he was therefore notified that under the provisions of the Greater New York Charter, as amended (Laws 1901, p. 636, c. 466, § 1543), he was suspended without pay, such suspension to take effect December 31, 1904, and that his name had been sent to the municipal civil service commission to be placed on the preferred eligible list for reinstatement in the city service. After the relator's suspension had become effective, he demanded of the commissioner of bridges that he be reinstated, and, upon the commissioner's refusal, he procured an alternative writ of mandamus to compel such reinstatement. An issue of fact was formed, which was brought to trial before a jury in the following October and resulted in a verdict in his favor. Thereupon the relator caused a notice of motion to be served asking for a final order granting a peremptory writ. Its hearing was postponed from time to time until December 4, 1905, at which time the case was orally argued before the Special Term, and time was then given counsel to submit written briefs. In the meantime the defendant, Best, resigned his position as commissioner of bridges, and thereupon, and before any decision of the motion for a peremptory writ was made, the corporation counsel of the city, upon affidavit showing the resignation of the defendant, moved the court for an order declaring the proceeding abated. Upon the hearing of this motion the Special Term found in accordance with the contention of the corporation counsel that the proceeding had abated by the resignation of Commissioner Best, and thereupon the court quashed, superseded, and set aside the writ.

In the case of People ex rel. Broderick v. Morton, 156 N. Y. 136, 50 N. E. 791,41 L. R. A. 231, 66 Am. St. Rep. 547, after discussing the question as to whether a mandamus could be issued against the Governor of the state, we stated that there was another reason which must control our action in the case, and then called attention to the fact that the Governor, lieutenant governor, and speaker, against whom the alternative writ had issued, had gone out of office, that their successors had been installed in office, and that the proceeding had been continued and a peremptory writ issued to the new officials without notice to them and without their having been brought in and made parties to the proceeding. We then referred to the provisions of section 755 of the Code of Civil Procedure, and stated that it may be doubted as to whether this section operates to keep the proceeding alive; but, assuming for the purposes of the case that it does, and that the relator still had the right to prosecute his proceeding, it was necessary that the new officers should be given notice and brought into the proceeding so that the peremptory writ could issue to them. It will be observed that the question as to whether the proceeding abated was not determined by us in that case. We have therefore given the question further consideration.

Under the common law the writ of mandamus issued in the king's name to inferior courts, officers, corporations, or persons,requiring them to do that which was particularly specified. It did not issue to the king himself, to Parliament, nor the judiciary, except such inferior courts as the higher courts had the power to review. Under the provisions of the Code of Civil Procedure the writ issues as an order of the court in the cases in which it was authorized at common law, and therefore it cannot issue to the executive, the legislative, or judicial branch of the government, except to such inferior courts as are subject to review by the judicial branch of the government having such jurisdiction. In other words, the mandamus does not issue against the government itself, and for this reason the Supreme Court of the United States has held that the proceeding abates upon the death or resignation of the officer against whom it was issued. Cox, Secretary, v. McGarrahan, 9 Wall. 298, 19 L. Ed. 579;United States v. Boutwell, 17 Wall. 604, 21 L. Ed. 721; United States v. Chandler, 122 U. S. 643, 30 L. Ed. 1244; Warner Valley Stock Co. v. Smith, 165 U. S. 28,17 Sup. Ct. 225,41 L. Ed. 621;United States v. Butterworth, 169 U. S. 600, 18 Sup. Ct. 441, 42 L. Ed. 873.

None of the acts under consideration in these cases could be enforced by any action against the government, nor could the relief sought be obtained by a mandamus against either of the three departments of the government. The proceedings therefore were instituted against the officer who, by his personal conduct, action, or refusal to act, had deprived the party of that to which he deemed himself...