Shatter v. Moses

Untermyer, J. The petitioner, a veteran of the World War, held a position in the competitive class of the classified civil service as stenographer, grade 3, in the department of parks of the city of New York. To this position he had been appointed by the commissioner of parks of the borough of Manhattan in November, 1925. Charges of misconduct and neglect of duty were served on him on May 11, 1933. Therein he was notified that a hearing on the charges would be held by the commissioner of parks of the borough of Manhattan on a specified date, at which he might appear and be represented by counsel. Hearings on the charges were thereafter held before the commissioner of parks, who found petitioner guilty on certain of the charges and removed him from his position as stenographer in the department of parks. [486] The question which this appeal presents is whether the power to remove the petitioner resided in the commissioner of parks or in the park board, a body consisting of five members composed of the commissioners of parks of the five boroughs of the city of New York. That question is to be determined upon a construction of provisions of the Greater New York Charter as they existed at the time of the petitioner’s removal, which occurred before the recent enactment of chapter 2 of the Laws of 1934 abohshing the board of five commissioners and substitutuing a single commissioner as head of the department. At that time section 607 of the charter, as amended, provided that “ The head of the department of parks shall be called the park board,” and section 614, so far as material, provided: “ The park board shall have power to appoint a secretary and such subordinate officers as may be necessary for the proper conduct of the office of the department. Each commissioner shall have power to appoint such superintendents, engineers, subordinates, clerks and assistants as may be necessary for the efficient performance of the duties of the department respecting the parks.” Section 1543 of the charter contained the following provisions: “ The heads of all departments and all borough presidents (except as otherwise specially provided) shall have the power to appoint and remove all chiefs of bureaus (except the chamberlain), as also all clerks, officers, employees and subordinates in their respective departments, except as herein otherwise specially provided, without reference to the tenure of office of any existing appointee.” Upon reargument, the court below held that under these provisions • of the charter the commissioner of parks had no power to remove the petitioner. Apparently the court proceeded on the theory that the park board was constituted the head of the department of parks by section 607 and that the head of each department was vested with power of appointment and removal by section 1543. The petitioner, however, was appointed to the position which he occupied by the park commissioner under the express power of appointment conferred upon him by section 614 of the charter. By section 1543 the power to “ appoint and remove ” is vested in the head of each department, but it is so vested “ except as otherwise specially provided.” Since the power of appointment to the office here in question was vested in the commissioner, that power carried with it, as a necessary incident, the power to remove, thereby excluding it from the operations of section 1543. In People ex rel. Corrigan v. Mayor, etc. (149 N. Y. 215) the court said: “ It is a well-established rule of law that the power to appoint to an office or position, where the term or tenure is not defined by statute, or otherwise, necessarily carries with it the power of removal. [People ex rel. Sims v. Fire [487] Commissioners, 73 N. Y. 437; People ex rel. Cline v. Robb, 126 N. Y. 180.] ” The reason for the principle is that those responsible for administering the functions of government who appoint their subordinates need, in discharging that responsibility, the power to remove those whom they have the power to appoint. (Myers v. United States, 272 U. S. 52, 119.) Since the petitioner was removed from his position “ by the officer or body having the power to remove ” (Civil Service Law, § 22) after due notice and a full opportunity to be heard, no order of mandamus, either peremptory or alternative, should have been granted. The order should be reversed, with twenty dollars costs and disbursements, and motion denied, with ten dollars costs. Finch, P. J., and Martin, J., concur; Merrell and O'Malley, JJ., dissent and vote for affirmance.