Donovan v. Cantor

McLaughlin, J.: The facts involved in this appeal are not in dispute, and as they are fully and correctly set out in the opinion of Mr. Justice Laughlin it is unnecessary to restate them. Under the statute the position held by the relator having been abolished and his name returned as an employee suspended without pay, it was the duty of the municipal civil service commission to determine whether the duties of the newly created positions were the same or similar to those performed by the relator in the position previously held by him. If they were similar, then the relator was entitled to have his name certified to and be appointed by the president of the borough to one or the other • of such new positions — otherwise not. (Revised Greater N. Y. Charter [Laws of 1901, chap. 466], § 1543.) The municipal civil service commission determined that the duties of the newly created positions were not similar to those performed by the relator in his former position and refused to certify his name. Therefore the president of the borough' had no right' to make the appointment. The act of the commission in making this determination was quasi judicial in character. It necessarily required the commission to pass upon questions of fact and involved the exercise of judgment upon its part, and this, as it seems to me, was the end of the matter. It is a universal rule that in the discharge of duties involving the exercise of judgment or discretion a public official must be left free to act and cannot, by mandamus, be compelled to act one way or the other; in other words, in such cases the courts [52] have no power to direct what shall be done. This rule was tersely stated by Judge Vann in People ex rel. Harris v. Commissioners (149 N. Y. 26). He said: “ When the law requires a public officer to do a specified act in a specified way, upon a conceded state of facts, without regard to his own judgment as to the propriety of the act and with no power to exercise discretion, the duty is ministerial in character and performance may be compelled by mandamus if there is no other remedy. When, however, the law requires a judicial determination to be made, such as the decision of a question of fact or the exercise of judgment in deciding whether the act should be done or not, the duty is. regarded as judicial and mandamus will not lie to compel performance.” Here, from the very nature of things, the municipal civil, service commission must have exercised its judgment upon the facts as to. whether the duties of the positions referred to were similar, and its conclusion cannot be reviewed by mandamus. To hold otherwise is to nullify the statute which confers upon the commission the duty of making the determination by substituting in its place a court or jury to pass upon the facts, and this the court ought not to do in the absence of legislative authority. The case in principle is precisely like People ex rel. Sims v. Collier (175 H. Y. 196), and upon reason as well as upon the strength of this authority it seems to me that the order appealed from should be reversed and the Writ quashed, with fifty dollars costs and disbursements. Van Brunt, P. J„ concurred; Patterson and Laughlin, JJ., dissented.