The relator is a veteran of the late civil war and in December, 1895, was appointed to the position of confidential examiner in the bureau of the fire marshal of the old city of New York.
Under the charter of the present city of New York the duties of the former board of fire commissioners were vested in a single official known as fire commissioner.
The relator continued in the same position in the bureau of the fire marshal in the borough of Manhattan in the present city of New York when it came into existence January 1, 1898.
On the 21st day of June, 1898, the relator received a copy of Special Order No. 97, which reads as follows: "The position of confidential examiner, bureau of fire marshal in this department, borough of Manhattan, is hereby abolished from four o'clock this P.M., and the services of Robert A. Breckenridge the incumbent thereof no longer required." (Signed by the fire commissioner.)
Relator also at the same time received from the secretary of the fire commissioner a letter, dated June 21, 1898, reading as follows: "You are hereby notified by direction of the commissioner that the position occupied by you as confidential examiner in said bureau has been abolished, to take effect from and after this date, and your services as such examiner in said bureau being no longer required you are hereby discharged."
On the 11th of June, 1898, ten days before his discharge, the relator notified the fire commissioner in writing that he was a veteran and had been honorably discharged from the United States army. *Page 111
On the 22d day of June, 1898, the day after his discharge, the relator addressed to the fire commissioner this communication: "Yours S.O. No. 97, dated June 21, 1898, abolishing `the position of confidential examiner, bureau of fire marshal in this department, borough of Manhattan,' and dispensing with my services, is received. Under the provisions of section 1, chapter 184, Laws of 1898, being a veteran, I demand to be appointed to a position in the department with equal compensation as the place abolished."
As the request was not complied with, the relator instituted this proceeding, praying for a peremptory or alternative writ of mandamus as might be proper, and that he be assigned to some position in the department which he might be fitted to fill upon the same compensation as he had theretofore received as by law required.
In his petition the relator alleged that his duties as a confidential examiner in the bureau of fire marshal consisted until on or about the first day of January, 1898, in assisting the fire marshal to investigate the origin of fires and to procure testimony against incendiaries, and after the first day of January, 1898, and until his dismissal, he was engaged in the examination and inspection, as provided by section 780 of the Greater New York charter, of all heating apparatus and other parts of buildings dangerous in causing or promoting fires.
The answering affidavit served by respondent alleges "that said position was unnecessary and had been such since January 1, 1898, when the duties previously performed by the petitioner were transferred to the assistant fire marshals; since said time petitioner has been performing the duties of an inspector while receiving the salary of a confidential examiner."
Attention is called to this admission of the allegation of the petition in regard to the change of duties, as it disposes of the defendant's point that the relator's position was confidential, and consequently not protected by the Veteran's Act.
That act provides (being chapter. 184, Laws of 1898) as follows: "No person holding a position by appointment in any city or county of this state * * * receiving a salary *Page 112 from such city or county, who is an honorably discharged soldier, sailor or marine, having served as such in the Union army or navy during the rebellion, * * * and who shall not have served in the confederate army or navy, * * * shall be removed from such position except for cause shown after hearing had; and in cities of the first class, if the position so held by any such honorably discharged soldier, sailor or marine * * * shall become unnecessary or be abolished for reasons of economy or otherwise, the said honorably discharged soldier, sailor or marine * * * shall not be discharged from the public service, but shall be transferred to any branch of the said service for duty in such position as he may be fitted to fill, receiving the same compensation therefor."
This statute also provides: "Nothing in this act shall be construed to apply to the position of private secretary or chief clerk or deputy of any official or department, or to any other person holding a strictly confidential relation to the appointing officer."
One of the points made by the respondent is that the relator's position was confidential and came within the exception just quoted.
It is quite possible that the original duties of the relator, performed by him prior to the first day of January, 1898, in investigating the origin of fires and procuring testimony against incendiaries were of a strictly confidential character; but the change in his duties, which took place on and after January 1st, 1898, as before pointed out, where he was called upon to simply examine heating apparatus and other parts of buildings dangerous in causing or promoting fires, radically changed the nature of his employment and rendered it very clearly non-confidential.
It, therefore, remains to consider relator's rights under the statute of 1898, already quoted.
The respondent insists that as this was a motion where the relator demanded a peremptory writ of mandamus, all the averments of the opposing affidavits must be taken as true. *Page 113
This is undoubtedly the rule, and the opposing affidavits will be deemed admitted.
The issues are somewhat narrowed owing to the position assumed by the counsel for the relator on the argument.
The defendant insists that the relator was bound to take his alternative writ and go to trial upon the contested facts, to wit, the good faith of the removal, as the petition had alleged that the defendant had acted colorably and only with a desire to compass the discharge of the relator. The answering affidavit denied this allegation.
The relator's argument in answer to this suggestion is that the facts put in issue by the pleadings are immaterial, for if his position was not of a confidential nature, he is entitled, as matter of right, to be retained in the service of the municipality by virtue of the statute of 1898.
It will be observed that the statute is mandatory in its language, and provides that if the position held by the veteran shall become unnecessary, or be abolished for reasons of economy or otherwise, he shall not be discharged from the public service, but shall be transferred to any branch of the said service for duty in such position as he may be fitted to fill, receiving the same compensation therefor.
It is urged by the defendant that there is no position open for the relator in his department, and that he has no authority to transfer him into any other department of the city government.
It is further insisted by defendant that it is a conclusive answer to the application of the petitioner that he does not show that there was any vacant position in the fire department which he is fitted to fill.
This burden of proof does not rest upon the relator, as the statute of 1898 commands that he shall not be discharged, but shall be transferred.
To hold otherwise is not only to write into the statute a condition not placed there by the legislature, but to impose upon the relator a burden of proof impossible to sustain.
The relator occupies the position of a discharged employee *Page 114 with every door of the municipal departments closed against him, so far as the management and necessities of those business subdivisions of the city are concerned. It may be reasonably assumed that as a party engaged in a litigation against the city all information would be denied him, but if answers were made to his inquiries, is he to stand or fall as they may be favorable or unfavorable?
If the statute of 1898 is subject to such a construction it will afford little aid to those it was designed to protect.
It may be asked, how is this statute to be obeyed, what is the duty imposed upon municipal officers in the premises?
The command of the statute is absolute and unqualified, to the effect that members of a certain favored class shall not be discharged, but transferred, and it would seem as if this mandate is to be obeyed even if a vacancy must be created for the purpose.
It is not for the court to determine whether such legislation is wise or unwise; it is its duty to enforce the law as written.
I think the discharge of the relator was illegal.
The order appealed from should be reversed.
PARKER, Ch. J., O'BRIEN, HAIGHT and VANN, JJ., concur with GRAY, J., for affirmance. MARTIN, J., concurs with BARTLETT, J., for reversal.
Order affirmed.