Breckenridge v. Scannell

Gray, J. The relator applied .for a peremptory writ of mandamus, to be directed to John J. Scannell, as fire commissioner of the city of 27ew York, and commanding him to reinstate the relator as confidential examiner in the fire marshal’s bureau; or to assign him to serve as an assistant fire marshal; or to'assign him to-some position in the fire department, which he may be fitted to fill, upon the same compensation as he has heretofore received. . This application was based upon the following allegations of facts. He was an honorably discharged veteran of the late civil war and, in 1895, was appointed by the then board of fire commissioners to be a confidential examiner in the bureau of the fire marshal, in the fire department of the city of 27ew York. Upon the creation of the present corporation of the city of 27ew York, the relator continued in his office under the respondent, Scannell; who, as firs commissioner, succeeded to the powers and duties of the former board of fire commissioners. In June, 1898, the position of confidential examiner was abolished; the relator was notified that his services as such *106 weue no longer required and lie was, therefore, discharged, lie, thereupon, demanded of the respondent, as a veteran, etc., “ to be appointed to a position in the department, with equal compensation as the place abolished.” Mot succeeding in his demand, he commenced this proceeding. lie sets forth in his petition, as its ground, the provisions of chapter 184 of the Laws of 1898, to the effect that in cities of the first class, if the position held by any honorably discharged soldier or sailor, etc., shall become unnecessary, or abolished for reasons of economy, or otherwise, he “ shall not be discharged from the public service, but shall be transferred to any branch of the said service for duty in such position as he may be fitted to fill, receiving the same compensation therefor.” The relator, further, avers what were his duties as confidential examiner and that they brought him in contact only with the fire marshal ; that the abolition of his office was only nominal and that its duties are, substantially, in fact, performed by an appointee of the respondent called the “ temporary assistant fire marshal ” and that “ there are many positions in the public service to which your petitioner might be assigned by the respondent.” The respondent, Scannell, in his affidavit, in answer to the relator’s petition, avers that the position of confidential examiner was abolished and the relator was discharged, “ in good faith, as a matter of economy and the duties heretofore performed by the incumbent distributed among the assistant fire marshals then holding office,” and he denies that the relator’s duties are being performed by an appointee under the name of “ Temporary Assistant Fire Marshal.” He alleges that “ there is no position in the fire department to which the petitioner could be transferred, for the reasons that there are no vacant positions in the said department, the incumbents of which would be entitled to receive the same compensation as that received by the petitioner, nor are there any vacancies whatever.” He denies that the dismissal from, and the abolition of, the office were wrongful, and states that they were proper, as the position had become unnecessary since January *107 1st, 1898, by reason of its duties being transferred to the' assistant fire marshals. He alleges, further, that the particular duties, which the relator had been performing, could be performed by the other officials; that there was nothing for the relator to do and that the position, therefore, was abolished “ solely for reasons of economy.” At the Special Term, the relator’s application was denied “ with leave to apply for •an alternative writ, if he desires to contest the allegation of the fire commissioner as to good faith and as to existing vacancies in the department.” The Appellate Division affirmed that determination and petitioner now appeals to this court. So far as the question is raised as to the position held by the relator being of that confidential nature, which would exempt it from the operation of the provisions of chapter 184 of the Laws of 1898, upon which the application for reinstatement is rested, I concede that we may consider it as disposed of upon the showing of the respondent’s affidavit. If the position was originally confidential, it had ceased to be so. I think, however, that there are other objections, which were fatal to the granting of the relator’s application. The act of 1898, in providing that a veteran shall not be discharged from the public service, if his position shall become unnecessary, or abolished for reasons of economy, requires that he be “ transferred to any branch of the public service for duty in such position as he may be fitted to fill, receiving the same compensation therefor.” Hpon this record we must take the material statements of the respondent, in answer to the allegations of the relator’s petition, to be true. The relator chose to rest his right to a peremptory writ upon the case as made by his petition and the opposing affidavit of the commissioner, and he refused to avail himself of the privilege to take an alternative writ and, thereunder, to contest the truth of the respondent’s statements. As to any disputed questions of fact, therefore, the answering affidavit of the respondent is conclusive. (In re Haebler v. N. Y. Prod. Exchange, 149 N. Y. 414.) *108 That the respondent acted in good faith in abolishing the position and in discharging the incumbent, and that there were no vacancies in his department to which the petitioner might be transferred, must be regarded as the truth in this controversy. It is not easy, then, to see how the petitioner was entitled to the peremptory writ commanding the respondent to do something, which, upon the record, he appeared to be under no obligation to 'do. If the petitioner demands that he-be transferred to some branch of the public service other than that of the fire department, manifestly, the respondent cannot-comply with it. But, if he demands that he be retained by the respondent to perform similar duties, he has failed to show that any position exists, which he might fill, and where the compensation is the same. Indeed, his counsel puts his case for him very frankly, when he says ■“ the respondent is-bound to make a place for the appellant, even if it should be necessary to dismiss from the service others, who are not protected under the veteran acts.” That is a view, which I think we should not take of this act. I do not think we should impute to the legislature the absurdity of intending to saddle an unnecessary officeholder upon the city; or the injustice of intending that some faithful and, possibly, more efficient officer, who happens not to be a veteran, must be discharged to make room for the incumbent of the abolished office. The legislative intent was to secure the retention in the public service of the veteran, who is thrown out of office by its abolition, “ in such position as he may be fitted to fill, receiving the same compensation therefor; ” which seems, necessarily, to imply that a vacancy in such a position must exist. The provision is, on its face, very broad and seems to afford considerable latitude in an application for appointment in a new position. The municipality itself appears to be laid under the obligation to retain the applicant. In the present case,, however, the attempt is to compel the head of the fire department to appoint the relator to some other position in the department, with the same salary as that attached to the abolished office. Either one of two objections would seem to be *109 sound, in answer. If the duty was imposed by the law upon the respondent to transfer the petitioner to another position and lie has neglected, or refused, to perform that duty, the burden would seem to be upon the petitioner to establish the respondent’s failure, by showing that a position did exist and that he is fitted to fill-it. The affirmative is upon him. But he does nothing of the kind. He does not show that there is any position vacant, which he is qualified to assume the duties of, or where the same compensation is paid to the incumbent. If the burden be, however, regarded as placed upon the respondent, by force of the language of the act, to establish that there is no position, to which he might transfer the petitioner, and that he cannot perform the duty imposed by the law, then he has done so, as far as he is able. He met the petitioner’s allegations by the statements in his affidavit. The petitioner would not avail himself of the permission to try out the issues by proceeding upon an alternative Avrit of mandamus and the averments of the respondent’s affidavit must be accepted. It is qxiite evident that the petitioner has relied wholly, in this matter, upon his construction of the act, that it applies to his case and has vested him with the unqualified right to be retained in the service; whether a position Avas vabant, which he might be fitted to fill, or not. I cannot assent to such a proposition. I do not think that it is the- case of a plain, imperious legislative mandate, which the court must compel the execution of, Avhether deemed unwise, or not. The law is capable of a reasonable and perfectly fair construction; under which the veteran, who loses his office through its abolition, is not to be discharged from the public service, if there is in any branch of that service a position, Avith equal emolument, which he is qualified to fill. He ought not, in justice, to demand, or to be alloAved, more than that. The position of the appellant is neither logical, nor reasonable. The provisions of this law are incompetent to accomplish the purpose he attributes to them. Their beneficent scope cannot be enlarged to accomplish a purpose, which *110 would work injustice, either to the municipality, in saddling upon it unnecessary officials, or to persons in office, whose only causé for removal would be that their places were wanted for veterans. I think the order appealed from should be affirmed, with costs.