#### The People ex rel. Frank K. Bowers, Relator, *v.*William Dalton, as Commissioner of Water Supply of The City of New York, Respondent.

(Supreme Court, New York Special Term,

April, 1898.)

Charter of New York —Status of commissioner of water supply — Power to discharge peremptorily.

The charter of the city of New York (Laws of 1897, chap. 378, .§§ 1536,1543) empowers the commissioner of water supply, as'“ head ” of a department, to remove, at pleasure, a foreman of repairs, transferred from a similar position in the department of public works as it existed under the old charter, who is not protected in his position by the Civil Service and Veteran Acts.

Application requiring respondent to show cause why a peremptory writ of . mandamus should not issue against him,- or if mandamus be not allowed by the court, why an order should not be entered herein, allowing a writ of certiorari to review the determination of respondent in dismissing the relator from service.

W. R. Spooner, for relator.

John Whalen, Corporation Counsel (Terence Farley, of counsel), for respondent.

Freedman, J.

This is an application requiring the respondent to show cause why a peremptory' writ of mandamus should not issue against him, commanding him to reinstate the relator as foreman, *295Company 6, in the department of water supply; or, if mandamus be not allowed by the court, why an order should not be entered herein, allowing the issuance of a writ of certiorari to review] the determination of the respondent in .'dismissing, the relator from - service.

Briefly stated, the facts alleged in the petition are, that on or about the 27th day of May, 1896, the relator was appointed foreman of repairs, Company 6, in the bureau of chief engineer, Croton aqueduct, department of public works, in the municipal corporation then known as the Mayor, Aldermen and Commonalty of the City of New, York, at the rate ¡of $5 per day as foreman, landi $2.25 per day for horse and wagon, which said appointment took efíect June 1, 1896; that pursuant to section 1536 of ithe new charter of 1897, the mayors of the various cities met and adopted a detailed plan, which provided for the apportionment between the several public departments, bureaus and offices, and the assignment to service in said public departments, bureaus and offices, respectively, of subordinates and employees, in the several branches of the public service in each of the several municipal and public corporations constituted by the charter, which said plan received the approval of the mayor of the city of New York, as to persons in the service of the- mayor, aldermen and comm onalty of the city of New York, and that sáid plan was subsequently published in the City Record on January 14, 1898; that in and by said plan,, all foremen in the bureau of the chief engineer of the depart-ment of public works of the city of New York were .assigned ti> the same positions in the department of water supply in the city, as constituted by the new charter, and that by reason of said apportionment, relator was assigned to perform the same services in the same part of the city, to-wit, at Fordham, in the borough of the Bronx, and to hold the same relative rank or position in the city constituted by the new charter, as he performed and held at the time said plan of apportionment and assignment was determined upon; that on or about the 4th day of January, 1898, the respondent discharged the relator from his position as foreman, without any charges being preferred against the relator, or ¡without any hearing being accorded him or an opportunity to make an explanation and without cause being assigned therefor, and without any cause whatsoever; that the relator protested against said action of the respondent, and made a written demand upon him, which demand was dated the 7th day of January, 1898, to be reinstated *296to the position from which' he'has been removed, on the ground that “ such discharge is in violation of - the provisions of the Constitution of this state, the laws of this state, and the Civil Service Rules and Regulations; *”*and that notwithstanding said demand the respondent has failed and neglected to reinstate the relator.'

Upon the return of the order to show cause the respondent did not deny any of the allegations of the petition or moving papers, and, consequently, all of said allegations must -be taken as, true. It may also be assumed, as claimed by the relator, that at the time of his appointment the office to which he was appointed, was in. the classified service under the rules and regulations of the civil service.

But it does not appear from either the petition' or 'any of the moving papers that the relator is an honorably-discharged soldier or sailor of the late war of the rebellion, or that he is ¡an honorably-discharged volunteer fireman, or that he is a regular clerk or head of a bureau, in any of the departments of (the niunicipality known as The City of Wew York. ,

Having failed to bring -himself within any ¡of the ^classes thus excepted, I cannot perceive how the rules -and regulations of the Civil Service Act protect him.

, Regulation 44 of the Civil Service Rules and Regulations (page 36 of the Thirteenth Annual Report of the Wew York City Civil Service Commission for the year 1897) provides /as follows:

“ Subject only to the qualifications required to- be ascertained in accordance with these regulations, the power of appointment and the responsibility of selection are in -all cases in the appointing officer, *The power of any officer to remove is not impaired hy anything contained in these regulations.”*

*:*Besides, it has been expressly adjudicated that the Civil Service Laws,, where no statutory restriction exists, do no-t prevent the head ■of a department from removing a subordinate at his pleasure'.. Heard v. Commissioners of Charities of the City of New York; People ex rel. Higgins v. Grant, 37 N. Y. St. Repr. 629.

The Constitution certainly affords no redress to the relator, as it has been held, citing the constitutional provision, that where the power of appointment is conferred- in general, terms, and without restriction, the power of removal, in the discretion and at the will of an appointing power, is implied and always exists, unless -restricted and limited by some provision of law. Constitution, 'art. X, § 3; People ex rel. Cahill v. Barker, 5 App. Div. 227; affirmed, 160 N. Y. 570; People ex rel. Cline v. Robb, 126 N. Y. 180.

*297. As neither the Constitution nor the Civil Service or Veteran Acts protect the relator, the merits of his claim depend, entirely ¡upon the provisions of the new charter. Sections 1536 and 1543 of that instrument are the only ones requiring consideration here. Section 1541 has been referred to several times in the brief of the relator, but on turning to it it will be found that it relates in no way or manner to the question now presented.

Section 1536, which relates to the retention of office by clerks in the public employ in the territory consolidated, first, provides that all the clerical and other subordinate forces, including janitors of public schools, not subject to removal without cause, * * * shall continue to hold their respective positions without prejudice or advantage * * * except that the clerks and subordinates, of departments that are abolished or reconstructed by this act, under the same or under other names, shall continue in 'the service of the said city.under the jurisdiction of the appropriate department, subject, nevertheless, to removal in '¡accordance with the provisions of this act for cause, or to abolish unnecessary positions, tinder this provision it is claimed by the relator 'that his removal was illegal, because made without cause, and not for the purpose of abolishing an unnecessary position. But the difficulty with this contention is that the provision applies only to employees who, before the consolidation, could be removed only for cause. These were continued in office, subject to be transferred, and protected by the provision that thereafter they 'should not be liable to‘ be removed, except for cause or whenever it was necessary to abolish an unnecessary position. The relator ¡does not belong to this class.

Moreover, section 1536 further provides as follows:

“ *The head of every department, and every other officer by this act given power to appoint, remove*and fix and regulate the salaries of his subordinates, appointees and employees, shall have power upon assuming office, or at any time thereafter, .to 'remove any person assigned to service under him by said plan, and to fix and regulate, within the limits .of his appropriation and subject to the restrictions, .if any, hereinbefore prescribed, the sálaries and eorn-i pensation of his said ¡subordinates, appointees and employees.”

This provision confers upon the head of every department and every other officer having power to appoint, ¡the power of removing at pleasure every subordinate, appointee or employee whose term of *298employment is not specially protected by some other statutory provision. As to all such unprotected subordinates, ¡appointees and employees the appointing power seems to possess unrestricted power of removal, although in making appointments the mode of (selection has been left surrounded by prescribed statutory safeguards and rules promulgated in conformity therewith. With the frestnctions under which appointments must be made, I have nothing to do in this case. i „

The further contention of the relator that the ¡provision last referred to as contained in section 1536 'does not ¡apply to the commissioner of water supply, because no power of appointment has been conferred upon him, is clearly untenable .for the reason that •by section 1543 the power is given to the heads ¡of all departments to appoint and 'remove all * * * clerks, (officers, employes and subordinates in their respective departments, except as otherwise specially provided, without reference to the tenure of office of any existing appointee. ¡

The same section then goes on and says-:

“ But no regular clerk or head of a bureau shall be removed until he has been allowed an opportunity 'of making an explanation.”

Here, again, the'relator is not within the exception.

That the commissioner of "water supply is the head of :a department within the meaning of section 1543 may (be seen by reference to section 468, which provides that the head of the department of water supply shall be called the commissioner of water supply.

• Inasmuch, therefore, as the relator did noti stand protected ¡by some special provision or rule of law, it was competent for the commissioner of water supply to remove him without any clause whatever, and without abolishing the position'held by him as an unnecessary' one.

At least such was the case at ¡the. time of the removal and at the time of the hearing of the.application for a mandamus.

Any subsequent change in the law- cannot be considered now.

For the foregoing consideration the application of the relator ■ for a peremptory writ (of mandamus.must be denied, with costs. The question involved having been disposed of as a question of law, the application for a writ of certiorari must be denied 'as unnecessary.

Ordered accordingly.