The decision in this case, as expressed in the prevailing opinion, practically abrogates the statute which exempts veteran soldiers in the civil service from removal without legal cause. The defendants are the trustees of the State Capitol under § 2 of chapter 227 of the Laws of 1893, and the superintendent of public buildings appointed by them, who has power, subject to the control of the trustees, to appoint, remove or suspend persons in the employ of the state who are or may be engaged on the Capitol force, or in the care of any of the public buildings. By chapter 716 of the Laws of 1894, honorably discharged Union soldiers must be preferred by the trustees and superintendent in making such appointments, and it is provided that removals of such discharged soldiers, after appointment, shall be made only for incompetency. In case a veteran is removed without such cause, or for partisan or political reasons, or refused a preference in making appointments, the statute gives a right of action to him for damages as for a wrongful act, in addition to the existing right of mandamus to enforce the commands of the statute.
In January, 1887, the relator, who is a veteran of the late war, was appointed an orderly upon the Capitol. He was not appointed for a definite or limited time, and, therefore, under the statute, could not be removed except for incompetency. He was removed, however, in the month of October, 1895, in defiance of the statute, without legal cause or hearing. He *Page 150 applied to the court for a mandamus to correct the wrong and to assert the rights secured to him by law. In his application for the writ the relator alleged upon oath the following facts: (1) That he was an honorably discharged Union soldier. (2) That he was appointed an orderly on the Capitol on January 3d 1887, and continued in that position till October 2d 1895, when he was discharged, as he alleges, for partisan, political or other reasons than those allowed by the statute. (3) That the defendants have kept the relator out of his position ever since, and have refused to reinstate him. (4) That during all the time while so employed, he faithfully discharged his duties and was not incompetent, and did nothing inconsistent with his position. (5) That he was never notified of any cause for his removal or called on to answer any charge, and none was made. The only affidavit made in opposition to this application was by the superintendent, and he failed to deny any fact which the relator had stated. The other defendants did not answer at all. Consequently, there was no issue of fact before the court but what was equivalent to a demurrer to the facts alleged by the relator. (People ex rel. v. Supervisors, etc., 103 N.Y. 541;People ex rel. v. Cromwell, 102 N.Y. 477; In re Haebler,149 N.Y. 414; People ex rel. v. Mayor, etc., Id. 215.) He was, therefore, entitled to a peremptory writ, but as he had claimed not only to be reinstated, but damages for his removal as well, an alternative writ was awarded.
The cause was then referred and tried by a referee. The issues were matters of law really, though it was supposed that there was some question of fact, but just what question was not very clear. The referee found the following facts: (1) That the relator was a veteran. (2) That he was employed running an elevator at the Capitol from February 1, 1887, to October 2d 1895. (3) That he was then dropped from the payroll. Therefore, every material fact in the case was not only admitted by the pleadings but found by the referee.
But the learned referee held, as a conclusion of law, that although he had been dropped from the payroll, he had not been removed, and he dismissed the writ, with costs. The *Page 151 Appellate Division has reversed this judgment and directed that the relator be reinstated in his position, without prejudice to his right to recover damages. This seems to me to be a very just and correct decision, and it ought not to be set aside by this court on any trivial ground.
My brethren, however, think the Appellate Division was wrong and the referee was right. The reasoning process by which this conclusion is reached does not impress me as sound in law or correct in morals; and, since it practically abrogates the statute by denying to the relator any right which it confers, I am constrained to dissent from the judgment and from every ground upon which it is placed. In my view the reasons stated for a reversal in this court of the decision of the court below are utterly untenable, and hence a brief discussion or review of them may not be out of place here.
1. The first proposition, though really foreign to the case, is somewhat startling. The principle that a mandamus will not lie against the governor as a member of the board of trustees of public buildings created by the statute is announced as law in this state, I think, for the first time. It is broadly asserted that the courts have no power to compel the governor, when acting as a member of this board, in appointing or discharging the necessary help in and about the Capitol to obey the statute. It is admitted that every member of the board is bound to obey it; but if the governor neglects or refuses to do his duty, or if he should disregard the statute, the courts, it is said, are powerless to protect the relator's rights by mandamus. This proposition is based upon the notion that there is something about the office of governor that places the occupant of the office for the time being above and beyond the law or at least beyond the power of the courts to compel him by mandamus to obey the plain mandate of the statute in the appointment and removal of veteran soldiers. I take it to be an indisputable legal proposition that when the governor of this state accepts a legislative appointment as a member of a board of trustees, with duties prescribed by statute, as the duties of this board clearly are, he is amenable to legal process *Page 152 at the suit of a private citizen whose rights are affected by the action of the board in the same way and to the same extent as any other member of the board. The principle has been so often asserted by the courts of the highest authority that it must disturb our confidence in the stability of law to find any doubt expressed about it.
In the famous case of Marbury v. Madison (1 Cranch, 170) Chief Justice MARSHALL stated the principle in a single sentence when he said: "It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done that the propriety or impropriety of issuing a mandamus is to be determined." In Kendall v. United States (12 Peters, 595) the attorney-general of the United States, representing the government, stated the rule of law on this subject in the following language: "And, as the ordinary character of an officer's functions would not always determine the true nature of a particular duty imposed by law, he further agreed that if an executive officer, the head of a department, or even the president himself, were required by law to perform an act merely ministerial, and necessary to the completion and enjoyment of the rights of individuals, he should be regarded, quoad hoc, not as an executive, but as a merely ministerial officer, and, therefore, liable to be directed and compelled to the performance of the act by mandamus if Congress saw fit to give the jurisdiction." The court, in its opinion in this case, said. "But it would be an alarming doctrine that Congress cannot impose upon any executive officer any duty they may think proper which is not repugnant to any rights secured and protected by the constitution; and in such cases the duty and responsibility grow out of and are subject to the control of the law and not to the direction of the president. And this is emphatically the case where the duty enjoined is of a mere ministerial character." InBoard of Liquidation, etc., v. McComb (92 U.S. 531) the court awarded a mandamus against a board of which the governor of the state was a member, and, referring to the power to do that, stated the rule as follows: "But it has been well settled that when a plain *Page 153 official duty, requiring no exercise of discretion, is to be performed, and performance is refused, any person who will sustain personal injury by such refusal may have a mandamus to compel its performance." (p. 541.) This rule has been strictly adhered to by that court in a great variety of cases where the writ was applied for against executive officers of the government. (U.S. v. Black, 128 U.S. 40; U.S. ex rel.Boynton v. Blaine, 139 U.S. 306.) The power of the courts to compel ministerial officers to perform official acts upon which the rights of individuals may depend is well settled in England. In the case of Ferguson v. Earl of Kinnoull, decided in the House of Lords, the distinction between a judicial and ministerial act was clearly recognized. In that case Lord BROUGHAM, after denying that the judicial officers of courts of general jurisdiction were answerable for acts done within the limits of their jurisdiction for errors of judgment, used the following language: "But where the law neither confers judicial power, nor any discretion at all, but requires certain things to be done, every body, whatever be its name, and whatever other functions of a judicial or of a discretionary nature it may have, is bound to obey, and, with the exception of the legislative branches, every body is liable for the consequences of disobedience." (9 C. F. 251.) In State ex rel. Whiteman, v.Governor (5 Ohio St. 535) there was an application for a mandamus against the governor, in which eminent counsel were engaged. The power of the courts in that regard was there elaborately discussed and decided. It was held that the writ would lie against him at the suit of a private individual interested in the performance of the official act. The court was unanimous, and the result was summed up in the following language, which I conceive to be applicable to the case at bar: "The constitutional provision declaring that `the supreme executive power of this state shall be vested in the governor,' clothes the governor with important political powers, in the exercise of which he uses his own judgment or discretion, and in *Page 154 regard to which his determinations are conclusive. But there is nothing in the nature of the chief executive office of this state which prevents the performance of some duties merelyministerial being enjoined on the governor. While the authority of the governor is supreme in the exercise of his political and executive functions which depend on the exercise of his own judgment or discretion, the authority of the judiciary of the state is supreme in the determination of all legal questions involved in any matter judicially brought before it. Although the state cannot be sued, there is nothing in the nature of the office of governor which prevents the prosecution of a suit against the person engaged in discharging its duties. * * * However, therefore, the governor, in the exercise of the supreme executive power of the state, may, from the inherent nature of the authority in regard to many of his duties, have a discretion which places him beyond the control of the judicial power, yet, in regard to a mere ministerial duty enjoined on him by statute, which might have been devolved upon another officer of the state, and affecting any specific private right, he may be made amenable to the compulsory process of this court by mandamus. The official act of the governor in question, in regard to issuing the proclamation asked for, is a duty prescribed by statute, not necessarily connected with the supreme executive power of the state, ministerial in its nature, and a duty which might have been enjoined on some other officer."
It would be quite sufficient to rest the question, I think, on our own decisions. In People ex rel. Fonda v. Morton (148 N.Y. 156) we reviewed the action of this very board of trustees, and no one then doubted our power. It is said that the point was not raised in that case; but the very fact that neither court nor counsel supposed that it contained such a question, or that there was anything in this point, goes far now to prove that it is but little more than an attractive novelty. It may, I think, be safely asserted that no respectable authority can be found to sustain the proposition that the courts are without power to enforce by mandamus the performance by the *Page 155 governor of an official act, ministerial in character, and not resting in discretion.
That the powers and duties of the governor as a member of the board of trustees of public buildings are purely ministerial is a proposition too plain for doubt. The four individuals composing the board had each one vote, and no member had any more power than the other. They were all doing precisely the same thing, that is to say, consulting, voting and deliberating together. It is inconceivable that any one can suppose that three of these were acting ministerially, while the acts of the other were executive. But here again it may be necessary to cite authorities.
In Gray, Governor, v. The State (72 Indiana, 568) it was held that a writ of mandamus will lie against the governor of the state to enforce the performance of a ministerial duty not resting in his discretion; that a ministerial act is one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to, or the exercise of, his own judgment upon the propriety of the act being done.
Concerning the nature of the governor's act while serving upon such a board, the court defined it in the following very clear and concise language: "Any power or authority vested by legislation in the governor, together with other officers or persons, in which they are to have an equal voice with him, cannot be executive, as he alone is vested with the executive power of the state. Any duty which he is by law required to perform, in connection with others, in which they have an equal voice with him, can in no sense be said to be an executive duty. The governor and the other officers named in the act may well be regarded as constituting a board, organized by the legislature for the performance of certain duties, and a mandamus will lie against them to enforce the performance." (Id. p. 578.)
I have said that there was no authority worthy of the name in favor of the contention that the executive of a state is beyond the power of the courts to compel the performance of an official *Page 156 act of a ministerial nature. I do not of course refer to cases which may be found where the writ was refused in the exercise ofdiscretion. The case of Low v. Towns, Governor (8 Georgia, 370), is a leading case of that character The court in an able opinion demonstrated its power to grant the writ against the governor, but refused to exercise the power for political reasons and as matter of discretion. The cases cited in the prevailing opinion to sustain the reversal are all cases of that character.
This court cannot deal with matters of discretion. The court below has exhausted the discretion which courts have in mandamus cases. It has exercised the discretion and granted the writ, and the only question that we can review is whether it had power in that respect. That it had, is to my mind a proposition so clear that I will forbear to discuss it further. I have called attention to a few leading cases, not desiring to enlarge the discussion by reference to numerous others of the highest authority, all holding the same way.
I am not willing to indorse the principle that the maxim which tells us that the king is the fountain of justice and mercy and can do no wrong, has any application to the elected servants of the people of this state. It originated when kings were supposed to rule by divine right, but any one who believes for a moment that it implied the immunity of persons in high seats of power from obedience to the laws, has failed to read correctly the history of the people from whom the maxim has been borrowed. On the contrary, the courts of that country have for ages announced and enforced the principle that no one was so high as to be above the power of the law, or so low as to be beneath its protection. This principle has been transmitted to us, and in the administration of justice it has superseded the ancient maxim that the king can do no wrong.
Nor can I admit for a moment that the judicial power of this state is so feeble as to be unable to reach with its process, in the enforcement of its lawful judgments and decrees, every citizen within its territory, from the governor to the humblest *Page 157 workman, and one as well as the other. The notion that the rights of a citizen cannot be declared and enforced against a ministerial board of which the executive happens to be a member, because he may call out the military and naval forces of the state to resist the judgment of the court, is too trivial for serious consideration. It is the duty of the court to declare what the law is without fear or favor, and let consequences take care of themselves. Courts cannot with any self-respect frame their judgments upon the view that some power may refuse to submit to the mandate of the law, or may resist it. The sheriff has the power of the country behind him, and the mayor of a great city the police force, but no one ever supposed that their power to resist a mandamus was any reason for refusing it to a party otherwise entitled to it. A legal principle resting on the assumption that the executive will refuse to obey the courts, must necessarily be unsound. It implies a want of that freedom of action on the part of the judiciary which is always necessary for its efficiency. If the courts may be deterred from deciding what the law is in such cases, upon some remote possibility that the executive power will resist the execution of the judgment, it would follow that a mandamus should never go against any one possessing the physical or political power to resist its commands, but should be confined to those who are too weak to defy it. Such vague or imaginary fears have no proper place in the discussion of questions upon which legal rights depend. I doubt very much that this state ever had an executive that would agree with my brethren with respect to this immunity from judicial authority, and it is to be hoped that it never will have. The proposition that there is or may be one man in the state so far above his fellow citizens that the courts cannot reach him, in a case like this, where there is no discretion, sounds very much like a voice from the middle ages, or the decree of the Roman Senate in its declining days when it declared the Emperor above the laws.
It is only a short time since the courts fined all the members of a board composed of all the state officers for disobeying *Page 158 a mandamus, and this court affirmed their action. (People exrel. Platt v. Rice, 144 N.Y. 249). If it so happened that the governor had been a member of that board, then, according to the prevailing opinion, the courts would be powerless, since all the other members could shelter themselves behind the executive prerogatives. The court below was not able to sanction such sophistry, and I am bound to say that the rugged good sense of their decision ought to receive at least some commendation from this court.
(2) But even if the governor was beyond the power of the courts, there are still three other members of the board, constituting a working majority, that no one claims to be exempt from control by mandamus. They have the power, and it is their duty to execute and obey the statute with respect to veterans, and to give to the relator his rights under the law. What reason can this court give for reversing the judgment as to them? Absolutely none that, in my opinion, has the slightest force or weight in law, and this can be made quite clear by a brief review of the grounds upon which the decision of the court below is to be reversed. That ground, as will be seen, consists of questions of practice, and questions of discretion, with none of which this court has anything to do, combined in such a way as to produce what is supposed to be a legal error. It is only necessary to separate the constituent elements upon which the decision rests in such a way that each proposition may be reviewed by itself, and on its own merits. It will then be seen how feeble the argument is upon which the relator is defeated in the assertion of his just rights under the law.
It is suggested that as three members of the present board were not parties to the original proceeding, but came into office afterwards, the writ was improperly awarded against them. There are several conclusive answers to this point. (1) A party who has proceeded by mandamus against a continuing board or public body for the assertion of a right is not compelled to revive it whenever the personnel of the board is changed by resignation or expiration of the official term *Page 159 of the members, or any of them. The relief is to be awarded against the board as an official body, and the fact that the individuals composing it are also named is of no consequence. The proceedings do not abate upon every change of membership, but when, as in this case, there is a continuing duty, irrespective of the incumbent, the writ is properly directed to the board as then constituted and who have the power to redress the wrong. Any other rule would be, as the courts have often said, sacrificing substance to form, so that the final process of the court was properly directed to the members of the board in office when the decision was made. (People ex rel. v. Collins, 19 Wend. 56;People ex rel. v. Champion, 16 Johns. 60; People ex rel. v.Gilon, 121 N.Y. 551; Thompson v. United States,103 U.S. 480, 483; State ex rel. v. Madison, 15 Wis. 30, 37; State exrel. v. Gates, 22 Wis. 210, 214; High on Ex. Rem. § 38.) (2) If the relator in entering the judgment directed the process against the wrong persons, or against persons not parties to the action, that is no ground of appeal to this court. It was simply a misuse of the writ, to be corrected by motion in the court from which the process issued. This court might as well entertain an appeal from a judgment on the ground that the execution was issued against the wrong party. It can deal only with questions of law. The writ should certainly go against either Governor Morton and his associates or Governor Black and his fellow-members of the board. That is a question of practice with which this court has nothing to do. Certainly not upon an appeal from this judgment. (3) The case comes here now with the present members of the board named as defendants. It does not concern this court how they came into the case. Presumptively they came in the proper way. They came into the case after the issues were tried and decided. For aught we can know they were substituted in open court on the consent of counsel. If their names were improperly used in the writ they could have moved to correct the papers. No one ever claimed that, or claims it now. Just how an error of law, reviewable in this court upon appeal from the judgment, can be evolved from *Page 160 the fact that the relator or his attorney inserted in the writ the names of the present members of the board who are in office, in place of the former members who are not in office, is quite difficult to perceive. The present members have appealed from the judgment, and if they have never in fact or in law been made parties to the record they have no right to appeal. (4) When the reasons for reversing this judgment are fairly analyzed it will be seen that they may be summed up in two propositions: (1) The governor being a member of the board and exempt from direction by mandamus the other three members are exempt also. The immunity of the governor from the duty of obedience to the law is imparted, in some incomprehensible way, to his associates, and the result is that the law is powerless to grant the relator any relief, although he has clearly shown that his rights have been disregarded. Of course, if this proposition be sound, the judicial power to compel boards or ministerial bodies to obey the law may be always paralyzed as to all such bodies in the state by making the governor a member ex officio, or otherwise. This is rather an alarming principle, and I am quite sure that it has no sanction in reason or law, and equally clear that no respectable authority can be found to sustain it. (2) The other point is that the present members of the board have not been substituted on notice. I have already answered that, but it may not be amiss to refer to it again. How do we know that they were not regularly and property substituted? We find their names in the writ, and that is all we know, or can know, about it. An order substituting parties in an action, with or without notice, is not reviewable in this court, since it is a mere practice order, and if not, then by what process of reasoning can some real or imaginary irregularity in that respect be made a ground for reversing a judgment? If anything in that respect was done in the court below irregularly, the obvious remedy is to move to correct it in that court. It has nothing whatever to do with the legal merits of the questions decided by that court and which, alone, we have the power to review. All the court below decided *Page 161 was that the relator, being a veteran, was removed in defiance of the statute, and was entitled to be restored to his place. It is to be regretted that this court should feel bound to reverse a judgment so obviously correct upon mere points of practice or procedure, having no proper relation to the real controversy, and with which this court, in my opinion, has nothing whatever to do.
I am, therefore, in favor of affirming the judgment below.
GRAY, BARTLETT and MARTIN, JJ., concur with HAIGHT, J., for reversal.
PARKER, Ch. J., agrees with HAIGHT, J., that mandamus should not issue against the governor, but concurs with O'BRIEN, J., that it was properly issued against the other defendants, and advises that the order be modified accordingly, and as so modified affirmed.
VANN, J., reads memorandum for modification of judgment.
O'BRIEN, J., reads for affirmance.
Order reversed, etc.