#### People *ex rel.*Ballou *v.*Wendell, County Judge.

*(Supreme Court, General Term, Third Department.*

July 7, 1890.)

1. Mandamus—Soldier’s Right to Office.

Under 1 Rev. St. N. Y. (8th Ed.) p. 407, § 1, which provides that honorably discharged Union soldiers and sailors shall be preferred for appointment in every public department, such a soldier is not entitled to a writ of *mandamus*to compel a judge to appoint him to the office of crier of the court, to which, in spite of his application, a civilian was appointed, even though he be qualified for the place, and was the only soldier who applied.

8. Same—Power to Appoint.

The judge had power, in his discretion, to appoint from the whole body of electors, and, having exercised that power and discretion, his duty was performed; and, since *mandamus*lies only to compel action byinferior officers and tribunals, there was nothing upon which the writ could take effect.

8. Same—Parties.

The person appointed, being in possession of the office, could not be ousted without a hearing; and that he was not a party to the proceeding was fatal to the application.

Appeal from circuit court, Montgomery county.

Application by Cyrus H. Ballou for a writ of *mandamus*to John D. Wendell, county judge of Montgomery county. Relator appeals from an order refusing to submit to the jury any of the issues of fact joined by the alternative writ, and from an order dismissing the proceeding with costs. The relator, an honorably discharged soldier of the Union army, and otherwise eligible to appointment, in January, 1889, applied to the defendant, as county judge of Montgomery county, to be appointed crier of the courts of record for said county. The judge appointed one Eolmsbee, a civilian, to the office, whereupon the relator obtained a writ of alternative *mandamus.*The defendant made return to the writ, denying the capacity of the relator to discharge the duties of the office, and alleging that Eolmsbee had the better qualifications, and therefore the defendant appointed him, and taking issue upon other allegations of the writ. These issues vyere brought to trial before the *588circuit court and a jury. At the close of the testimony, upon motion of the defendant, the court dismissed the proceedings with costs, refusing to submit the case to the jury. From the order reciting this disposition of the case the relator appeals., 1 Bev. St.N. Y. (8th Ed.) p. 407, §§ 1, 2, are as follows: “Section 1. In every public department, and upon all public works, of' the state of New York, and of the cities, towns, and villages thereof, and also-in non-competitive examinations under the civil service laws, rules, or regulations of the same, wherever they apply, honorably discharged Union soldiers- and sailors shall be preferred for appointment and employment. Age, loss of limb, or other physical impairment which does not in fact incapacitate, shall not be deemed to disqualify them, provided they possess the business capacity necessary to discharge the duties of the position involved. See. 2. All officials or other persons having power of appointment to, or employment in, the public service, as set forth in the first section of this act, are charged with a faithful compliance with its terms, both in letter and spirit; and a failure therein shall be a misdemeanor.”

Argued before Learned, F. J., and Mayham and Landon, JJ.

*Say les, Searl & Sayles,*for appellant. *W. B. Dunlap,*for respondent.

Landon, J.

Since the trial court refused to submit the case to the jury, and dismissed the proceeding, we may assume upon this appeal that every controverted question of fact might have been fqund in the relator’s favor by the jury, if the case had been submitted to them. The case, then, is, that there was a vacancy in the office of crier of the courts of record for Montgomery county; that the relator was an elector of the county, and an honorably discharged soldier of the Union army; and was the only soldier who was an applicant for the office, and that he possessed qualifications sufficient to-perform the duties of the office; that one Folmsbee was also an applicant for the office, and that the county judge, after a consideration of the matter, appointed Folmsbee instead of the relator; that the county judge, in making the appointment, considered that Folmsbee would make the better officer. The-question, then, is, would the relator, assuming these facts to be found in his favor, be entitled to a writ of peremptory *mandamus*requiring the county judge to appoint him? We think not. The statute does not give him the office, nor command that he, alone of all the honorably discharged Union-soldiers, shall be appointed. It says that such soldiers shall be preferred, other necessary qualifications existing. It points out no method by which one soldier shall have a preference to the appointment over all other soldiers. It simply prefers soldiers to civilians. Even if the appointment of Folmsbee should be vacated, and the county judge were peremptorily commanded to-appoint a soldier, he would have the whole body of eligible soldiers from whom to select. It follows that the relator has no clear legal right to the appointment, to the exclusion of all other soldiers, and hence lacks the clear right essential to a *mandamus.*

Again, *mandamus*issues to compel inferior, tribunals and officers to act. Assuming that it was the duty of the county judge to appoint a crier, he-could make that appointment from the whole body of eligible electors. All that *mandamus*could do would be to compel him to act, and make the appointment. In so far as he had discretion in exercising the right of selection, *mandamus*could in no wise control that discretion. The county judge had-the duty to select, the power and duty to appoint. He has discharged that duty, and has no further duty now to perform. Whatever may have been-his obligation to give the soldiers a preference, his power to discharge that: obligation ended when *he made the*appointment. *People*v. *Trustees,*7 N. Y. Supp. 125; *People*v. *Village of Little Falls,*8 N. Y. Supp. 512, 960; *People*v. *Barden,*Id. 960; *People v. Summers,*9 N. Y. Supp. 700. The relator’s grievance is not that the county judge refused to act, but that he erred in. *589his action, and appointed a civilian instead of a soldier. AYliether there is any method to review his decision and action, we are not called upon to decide. It is enough now to say that *mandamus*is not an appropriate method to review it.

Besides, Folmsbee was appointed to the office, and presumably is in possession of it. He is not a party to this proceeding, and cannot be turned out without his day in court, in the proper action. The relator cannot be inducted into office unless a vacancy can be legally made for him to fill. It cannot be made in this proceeding.

The learned counsel for the relator cites *In re Wortman,*2 N. Y. Supp. 324, as an authority for *mandamus. Mandamus*was refused in that case. In *Sullivan*v. *Gilroy,*8 N. Y. Supp. 401, the soldier had procured his preferment to employment, and then was arbitrarily deprived of it. *Mandamus*was issued to compel his restoration to his rightful place. The difference between depriving a person of what is already rightfully his own, and compelling the bestowment upon him of what he never had, is suggested in the case, and is very plain. That difference exists between that case and this.

It is manifestly difficult to enforce, in cases like the one before us, the compulsory preference which the act seems to prescribe. Practically, the act embodies an inconsistency in principle. It seeks to give a preference to one class of citizens, as a class, without impairing that equality of civil rights which the soldier struggled to establish, and also without changing the wise maxims of government by which justice is administered. We cannot put the relator in without turning Folmsbee out, and, so far as we know, Folmsbee has a right to stay in. We cannot put the relator in without changing the rules governing *mandamus,*and the legislature has not authorized any change. There are many soldiers, and the relator is only one: and the act does not provide for merging in him the rights of every other soldier, and of every other person, eligible to appointment. The order and judgment thereon should be affirmed, with costs. All concur.