I cannot concur in the opinion adopted by the majority of the court in this case. While the powers which are conferred upon the fire commissioner are referred to at length, those parts of the statute, although quoted, which compel the exercise of these governmental powers in a particular way, are given no force or effect whatever.
We are told that it is provided by section 724 of the charter: “ The fire commissioner shall possess and exercise fully and exclusively all powers and perform all duties for the government, management, maintenance and direction of the fire department of the city and the premises and property thereof; ” and that section 726 provides that “ The fire commissioner shall possess and exercise full and exclusive power and discretion for the government, management, maintenance and direction of the several buildings and premises,” etc.
The terms used in this section undoubtedly gave the fire commissioner unlimited power in the organization, management, maintenance and direction of his department. These unlimited powers are, however, by the next two sections directed to be exercised in a particular way. Section 727 provides that “ The fire commissioner shall have power to organize the fire department into such bureaus as may be convenient and necessary for the performance of the duties imposed upon him.” In this language there is a clear assumption that it will be necessary for the fire commissioner, in his organization of the fire department, to form bureaus through which the *196work of the department is to be done. Up to this point there is no limitation upon the number of bureaus or the duties to be assigned to each. The next paragraph of the section under consideration, however, expressly limits and regulates this general power of organization. The next paragraph expressly provides for the formation of at least one bureau which shall have certain duties assigned to it and a principal officer. The paragraph reads as follows: “ One bureau shall be charged with the duty of preventing and extinguishing fires and of protecting property from water used at fires, the principal officer of which shall be called the ‘ Chief of Department.’ ” This office is, therefore, just as much a creation of the charter as the office of the fire commissioner itself. The fire commissioner must, therefore, so organize his department that there shall be one bureau in it whose duty it shall be to deal with fires. He must so organize it that there shall be a principal officer in it. That is, an officer who shall, not only in name, but in fact, be its head. These provisions are a clear limitation upon the general powers which had theretofore been conferred in the charter upon the commissioner. Ho matter what else he could do, he had to organize this bureau, make in it a principal officer who should not only in name but in fact be its head. In this same section the organization of other bureaus to which certain duties shall be assigned are provided for. If the commissioner has the absolute and unrestricted power claimed for him by the prevailing opinion, he had the right to ignore entirely these provisions of the statute. He might organize as he pleased, or not, the bureaus there provided for. He might make an entirely different distribution of work and duties. Or he might organize these bureaus, but omit to create the office of “ Principal Officer ” as in the statute provided. If the powers of the fire commissioner are as unlimited as the prevailing opinion assumes, the fire commissioner could ignore all these provisions. It is clear that he could not. He was bound by them. He could have been compelled to obey these provisions of the law, namely, to organize a department to deal with fires, and make provision for an officer who should be the actual head of the bureau.
How, if he could have been compelled so to organize his bureaus, how is it possible for him, after having organized such bureau and having provided for such principal officer and having fixed his *197duties consistent with the requirements of the charter, to arbitrarily, against the will of such principal officer, deprive him of the right to exercise the duties which the statute has conferred upon him ? It is said that this can be done under the unlimited powers conferred upon the commissioner for the government of his department. But he has no such absolute power of government. His powers are expressly limited, and the “ Chief of Department ” —• an office established by the very charter from which the commissioner derives his office—has his duties to perform. The duties of the ‘f Chief of Department” are just as much statutory as those of the commissioner. He has the same vested right in their performance as the commissioner himself has.
If there was any doubt about this proposition, it is set at rest by the language of the next section: “ § 728. The fire commissioner shall have power to select heads of bureaus'and assistants, and as many officers and firemen as may be necessary, and they shall at all times be under the control of the fire commissioner, and shall perform such duties as may be assigned to them by him, under such names or titles as he may confer.” This last clause seems to show conclusively that it was not intended to apply to the heads of bureaus provided for in the preceding section. The commissioner by that section was required to call the heads of those bureaus by certain names — not “such names or titles as he may confer.” Again, this latter section provides that the persons selected under it “ shall perform such duties as may be assigned to them by him.” This clearly cannot apply to the heads of bureaus referred to in the previous section, as to them can only be assigned duties which are consistent with the position of principal officer. The head of these bureaus is to be, not only in name, but in fact, the principal officer in the bureau. This is what the statute says, and which provision is entirely swallowed up in the prevailing opinion by the stress laid upon the general powers conferred upon the commissioner.
That it was the intention of the statute that the commissioner should not have the absolute control as to what duties should be performed by the heads of bureaus created by the statute seems to be further apparent by the succeeding language of section 728, which is as follows: “ Provided, however, that assignments to duty and *198promotions in the uniformed force shall be made by the fire commissioner upon the recommendation of the chief of department, and in case any recommendation so made by the chief shall be rejected he shall, within three days, submit another name or names, and continue so to do until the assignment or promotion is made.”
What, in view of this provision, becomes of the claim of absolute control of the fire commissioner in the management of his department % He cannot assign to duty or promote a man in the uniformed force except upon the recommendation of this very chief of department that he claims the right to suspend from duty whenever he chooses. I say, suspend from duty intentionally; it is true that the commissioner talks about relief from' duty, but I can see no difference in the terms. The commissioner can no more relieve than he can suspend.
It seems to me clear that the chief of department is as much a statutory officer as the commissioner himself; that the commissioner must so organize his department that this chief of department shall be the principal officer in one of the bureaus which he is obliged to organize in his department; and that there are explicit duties which the statute calls upon him to perform, which the commissioner cannot take away from him.
If the statute means anything, then the chief of department is beyond the whim of the commissioner, and he can be disciplined only in the method provided for in the statute.
O’Bbiem, J., concurred.
.. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.