
    Matter of the Application of Alson B. Ostrander for a Writ of Mandamus.
    (Supreme Court— Albany Special Term,
    May, 1895.)
    The persons whom the superintendent of public buildings is authorized to appoint are not public officers, but employees.
    The position of deputy superintendent, created and so named by the superintendent of public buildings, is a confidential one, and has been so classified by the civil service commission, and, therefore, comes within the exception to chapter 716, Laws of 1894, giving preference in appointment to honorably discharged soldiers.
    Application for a mandamus requiring the superintendent of public buildings to appoint the applicant to the position of deputy superintendent.
    
      Robert H. MeCormic, Jr., for application.
    
      Henry G. Hevitt, opposed.
   Hebbiok, J.

The applicant rests his claim to the appointment to the position in question upon the laws in relation to honorably discharged soldiers and sailors of the late war.

I deem it unnecessary at this time to review the various acts of the legislature in relation to veterans.

His claim seems to me to rest upon the provisions of chapters 716 and 717 of the Laws of 1894. These acts became laws upon the same day. They contain no provisions neces: sarily inconsistent with each other, and, therefore, are tozbe construed as one law. They entitle him in certain cases to a preference over all others not veterans. The position he seeks is one under the superintendent of public buildings.

Under chapter 227 of the Laws of 1893, the superintendent of public buildings has power, “ subject to the approval of the trustees, to appoint all persons necessary to the maintenance of the department of public buildings and the grounds under his charge.”

The persons so authorized to be appointed by him are not public officers, but employees. No authority is vested in him or in the trustees of the public buildings to create an office. The remedy by mandamus I, therefore, think is the proper one.

Chapter 716 of the Laws of 1894, the raw which gives honorably discharged soldiers and sailors a preference, has the following proviso : “ But the jn-ovisions of this act shall not be construed to apply to the position of private secretary or deputy of any official or department, or to any other person holding a strictly confidential position.”

The applicant must affirmatively show that the position he seeks is not one of those excepted from the preference to be given to veterans.

The particular position sought by the applicant, for which he filed his application with the superintendent of public buildings, is designated as that of “ deputy superintendent,” a position or employment that appears to have been created and named by the superintendent of public buildings.

Now, while I am inclined to think that this provision of the statute, so far as it refers to deputies, refers to officers as such created by statute, who are by law clothed with the power and authority of the principal officer in his absence or inability tó act, and that it does not refer to an employee who may have been for convenience, but improperly, named deputy; who is not clothed with any official power or authority, and has no right under the statute to act for or in the place of the principal officer; and while, therefore, the naming of the position in controversy here as that of deputy does not necessarily bring it within the positions excluded from the operation of the laws in relation to soldiers, still this reasoning does not affect that portion of the statute relating to confidential positions. And the applicant, instead of showing that the position he seeks is not a confidential one, alleges in his moving affidavit herein “ that said employment has been entered upon the schedule of confidential positions in the civil service of the state as exempt from examination.”

The civil service commission of the state, together with the governor, have power under the civil, service laws to classify the employees of the state.

And such position having, as the applicant states, been classified as a confidential one, I do not think that the applicant has a preference for the appointment thereto over any other applicant.

I do not think the provisions of the new Constitution change the position of the applicant. Since it was adopted the governor and civil service commission have declared the employment in question a confidential one and not subject to examination, which is, in effect, saying, in the language of the Constitution, that it is not “ practicable ” to ascertain the applicant’s fitness for it by examination, and, therefore, it is not within the provisions of the Constitution as to civil service.

The application for a mandamus must, therefore, be denied; denied not as matter of discretion, but as matter of law; but under the circumstances of this case I think proper that such denial should be without costs.

Application denied, without costs.  