Sugden v. Partridge

• Decision Date: 06 March 1903
• Parties: SUGDEN v. PARTRIDGE, Police Com'r, et al.
• Court: New York Court of Appeals Court of Appeals

174 N.Y. 87

66 N.E. 655

SUGDEN

v.PARTRIDGE, Police Com'r, et al.

Court of Appeals of New York.

March 6, 1903.

Appeal from Supreme Court, Appellate Division, First Department.

In the matter of the application of Edward E. Sugden for a writ of mandamus against John N. Partridge, commissioner of police of the city of New York. From an order of the Appellate Division (80 N. Y. Supp. 1149) affirming an order of the Special Term denying a peremptory writ of mandamus to compel the commissioner of police to revoke an order remanding the petitioner from the bureau of detectives to police duty, relator appeals. Reversed.William C. De Witt, for appellant.

George L. Rives, Corp. Counsel (Theodore Connoly and Terence Farley, of counsel), for respondents.

HAIGHT, J.

The facts are without substantial dispute. The petitioner was duly appointed a patrolman of the uniformed police force of the police department of the city of New York on or about the 11th day of April, 1896, and continued in the discharge of his duties as such patrolman until the 18th day of February, 1901, at which time he was, by a resolution of the board of police, designated and assigned to duty as a detective of the detective bureau, with rank of detective sergeant, in which position he served until July 17, 1902, at which time the commissioner of police, by an order, remanded him to duty as a patrolman. During the time that he served as a detective he was allowed and paid the salary of a detective sergeant at the rate of $2,000 per annum, the amount being certified by the municipal civil service commission each month as the same became due. On being remanded to the position of patrolman, he served upon the commissioner of police his protest in writing, and demanded his reinstatement as a detective sergeant, and that his pay be certified as such. This being refused, he presented his petition for a mandamus, which the Special Term denied, and that order, as we have seen, has been affirmed by the Appellate Division, but not as a matter of discretion.

The statute under which the petitioner demands his reinstatement is Laws 1901, p. 122, c. 466, § 290. That statute is entitled ‘An act to amend the Greater New York Charter’ (chapter 378, Laws 1897, p. 99, § 290), and, so far as is material, provides as follows: ‘The police commissioner shall maintain a bureau which shall be called the central office bureau of detectives, and shall select and appoint to perform detective duty therein from the patrolmen or roundsmen as many detectives as the said commissioner may from time to time determine necessary to make that bureau efficient. The patrolmen or roundsmen so selected and appointed, and the patrolmen or roundsmen heretofore selected, appointed or assigned to perform detective duty in the detective bureau, or in what is known as the headquarters squad, and who were acting in said bureau or squad on the 1st day of April, 1901, shall be known as detective sergeants, shall act as such in said bureau, and shall hold the same rank and shall be eligible for promotion in the entire police force in the city under the same rules and conditions applicable to the promotion of all other sergeants of police in said city, and shall not be reduced in rank or salary except in the manner provided by law for sergeants and other officers of the police force. These patrolmen or roundsmen known as detective sergeants on ths 1st day of April, 1901, as aforesaid in the detective bureau shall have the power to draw and be paid the same pay as other sergeants of police.’

It is contended on behalf of the respondents that this statute, in effect, creates a new office, with a permanent tenure, on the part of those occupying the position, and that it was filled by persons designated by the Legislature, in violation of section 2, art. 10 of the Constitution of the state, which provides that ‘All city, town and village officers. whose election or appointment is not provided for by this Constitution, shall be elected by the electors of such cities, towns and villages, or of some division thereof, or appointed by such authorities thereof, as the Legislature shall designate for that purpose.’

The consideration of this question renders it necessary to examine more fully the prior existing statutes upon the subject, and the status of the petitioner thereunder. Under the consolidation act (Laws 1882, p. 1, c. 410, as amended by Laws 1884, p. 200, c. 180) section 4 (page 202, c. 180, Laws 1884) amended section 265 (page 69, c. 410, Laws 1882) of the former act so as to read, as far as material, as follows: ‘The police force shall consist of one superintendent of police. * * * Detective sergeants to the number authorized by law. * * * The board of police commissioners shall maintain and continue a bureau which shall be called the central office bureau of detectives. The board shall select and appoint to perform detective duty as many patrolmen (not exceeding 40 in number) as said board of police may, from time to time, determine to be necessary to make this branch of the police force efficient. The patrolmen so selected and appointed shall be called detective sergeants, and shall be assigned to duty at the central office bureau of detectives, and shall, while performing such detective duty, be vested with the same authority, and be entitled to receive and be paid the same salary each as sergeants of the police in the city of New York; but the board of police commissioners may, by resolution, reduce to the grade of patrolmen and transfer such detective sergeants or any number of them to perform patrol or other police duty, and when so transferred they shall only be entitled to receive and be paid the same rate of compensation each as patrolmen of the police in said city.’

The provisions of the consolidation act of the city of New York were re-enacted in the Greater New York Charter (pp. 94, [174 N.Y. 94]99, c. 378, Laws 1897), and are to be found in sections 276 and 290. There are a few verbal changes, but none that are material or that affect the meaning or construction of the act. This act, as we have seen, was again amended by the statute under consideration, which is claimed to be violative of the provisions of the Constitution. It will thus be seen that the office of detective sergeant was created and existed long before the adoption of the Greater New York Charter, and that it was continued in the provisions of that act. The manner of selecting and designating the persons...