People ex rel. Jacobus v. Van Wyck

Patterson, J. : If the relator’s rights were dependent only upon the provisions of section 127 of the Greater New York charter, and the fact that, under the consolidated city government, there are certain officials whose duties in some respects are the same as those performed by the relator prior to January 1, 1898, there would be* no question of his right to the mandamus issued in this proceeding, from the order granting which this appeal is taken. My first impressions were that the discussion was limited to those considerations, and that the decision of the Special Term was right; but more mature reflection and a study of other provisions of the charter satisfy me that the relator was not entitled to the writ. It is incontestible that on the 31st day of December^ 1897, the relator was the incumbent of an office from which, as the law then stood, .he could not be removed except for cause and after hearing, and he was then entitled to all the protection afforded him by the Constitution and the laws of the State as a veteran soldier. Section 127 of the Greater New York charter was undoubtedly intended to continue in office certain veterans of the army and navy and volunteer fire department, and it is to be observed that the whole force of that section is to retain in office such veterans, “ in like positions and under the same conditions, * * * to serve under such titles and in such way as the head of the appropriate department or the mayor may direct.” The officials referred to do not require appointment, but merely a transfer from one position to another. They are kept in office by force of the statute. We have, therefore, a provision by which the persons referred to in that section are to be retained [320] in office “ under the same conditions; ” one of which conditions is, that they are irremovable, except for cause and upon a hearing. The necessary construction of this ■ section, therefore, must be that those who come within its .protection cannot, be removed except as stated. The relator was one of four who constituted the board of assessors of the mayor, aldermen and commonalty of the city of Hew York, for local improvements. By section, 943 of the Greater Hew York charter, the mayor is specifically directed to constitute a new board. The provision is: “ The mayor shall appoint five persons who shall constitiote the board of assessors.” Here is a provision which looks to the establishment of an entirely new board to be constituted by direct appointment. There are five persons, each of whom is to derive his authority, not from retention in office under section 127; but from the act of appointment by the mayor. There is no other title by which the office can be held. Manifestly this provision‘is inconsistent with the idea of the retention of office provided for by the 127th section-,; and the purpose of the specific legislation- made by the 943d- section, becomes apparent when we consider the 95th section of the charter, which provides that at any time within six months after the commencement of his term of office, the mayor,, etc., may remove from office any public officer holding office by appointment from the mayor, except members of the board of education and school boards, and except judicial officers for whose - removal other provisions are made by the Constitution. The provision of section 943, imposing upon the mayor the duty of appointing the five persons who shall constitute the board of assessors, read-in connection with the. provisions of the 95th section,, giving to the mayor, the absolute power of, removal of any of his appointees within the period of six months after the commencement of his term of office, excludes the idea that either of the five persons constituting the board of assessors can claim the right of retention under section 127, and ' irremovability otherwise than under the statute relating to Veterans. In other word's, the intent of section 943 is that the assessors therein mentioned holding offiée by appointment are to be subject to the removal' provided for by section 95, and, therefore, by special provision, -Section 127-cannot apply to the particular officers mentioned in section 943. The present case is hot, therefore, affected by the [321] Hmerty case and the relator was not entitled to the writ. • The order must be reversed. Inghbaham, J., concurred; Bumsey, J., dissented. Van Brunt, P. J.: It seems to me to be the clear intention of the charter to make the mayor personally responsible for the government of the city by giving him full power of appointment and removal in respect to the several boards composing the city government, of which the board of assessors is one. By section 943 of the charter the mayor is directed to appoint five persons who shall constitute the board of assessors. By section 95 of the charter the mayor is given the power, within six months after the commencement of his term, when in his judgment the public interest shall so require, to remove from office any public officer holding office by appointment from the mayor, except members of the board of education and school boards, and except also judicial officers, for whose removal' other provision is made by the Constitution. After the expiration of such six months the mayor can only remove upon charges preferred and an opportunity to be heard, etc. It is to be observed that the requirement is that the mayor shall appoint five persons to be a board of assessors. It is to be a new board, different from the one which preceded it, in regard to the nature of its duties, in regard to its tenure of office and in regard to the appointing power. The previous board was removable at pleasure by the tax commissioners who appointed them, except in the ease of veterans. The new board can be removed at pleasure during the first six months of the mayor’s term, and then cannot be removed by the mayor except for cause; and the incoming mayor is certainly given the absolute power of removal even though one of the members of the board may be a veteran. I find nothing in the act which can possibly be construed to prevent such a removal by the first mayor. It is claimed in the case at bar that the mayor had no power to appoint five members of the board of assessors, but that because the relator was a veteran he could only appoint four and was bound to retain the relator in his position, claiming it to be a like position, [322] pursuant to the requirements of section 127 of the charter. It seems to me that this construction absolutely destroys the manifest intent of the charter, takes away by implication power expressly and absolutely given in another section, prevents the fulfillment of distinct requirements, about the language of which there can be no dispute, and deprives the first mayor of New York of an authority which his successor undoubtedly has. It seems to me that the case of People ex rel. Haverty v. Barker (149 N. Y. 607) has not the slightest application to the case at bar. The order should be reversed.