
    The People ex rel. Oscar F. Lockwood, Appl’t, v. The Trustees of the Village of Saratoga Springs, Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September 21, 1889.)
    
    
      1. Civil service act. Chap. 464, laws 1887.
    Chap. 464, Laws 1887, means that where two or more apply for an office, one of whom is a discharged Union soldier and all are equally qualified, the soldier shall be preferred, but not where the soldier is not equally qualified for the office with one of the others.
    2. Same — Mandamus.
    Relator was a discharged Union soldier and applied for appointment as superintendent of public works. The trustees who knew the qualifications of the several applicants, acting in good faith, appointed one who was not a soldier. Held, that the decision of the trustees, if wrong, could not he corrected by mandamus.
    Motion for a peremptory mandamus, requiring defendants to appoint relator to the office of superintendent of public works of the village of Saratoga Springs.
    The following is the decision at special term:
   Putnam, J.

relator presents his affidavits, in which he testifies that he is fully competent to perform the duties of said office. At the meeting of the defendants, on May 6, 1889, called to elect a superintendent, he appeared and made application for the appointment in writing, stating that he was an honorably discharged union soldier, who served in Conqiany D, Seventy-seventh regiment, New York state volunteers, and entitled to a preference by virtue of the provisions of chapter 464, Laws of 1887, to said appointment, and he presented his certificate of discharge. He offered no proof of his capacity for the position before the trustees, but his affidavit states that no question was raised in that regard. He presents on this application his own affidavit and that of nine other citizens, that he is well qualified to perform the duties of the office of superintendent.

None of those affidavits, however, speak of the relator’s fitness to perform the duties of the office as compared with Eyall, the person who was appointed by the trustees.

The trustees, in their answering affidavits, in substance, state: That the office of superintendent of public works of the village is of very great importance; it requires very great ability and business capacity and experience; that officer has charge, under the trustees, of the streets, sewers, tax lists, highways, public works and affairs of said village; that they had considered the application of the relator and his claim to the office under the law of 1887, and the applications of the other candidates; that no proof was offered as to the, fitness of either of the candidates for the office.

The majority were well acquainted with the relator and his qualifications for the appointment, and the qualifications of the other candidate. That they- came to the conclusion that the relator was not competent for the position of superintendent of said village and that Eyall was, and that therefore, in good faith and not intending to violate the provisions of chapter 464 of the Laws of 1887,_ they appointed Eyall to the office, who duly qualified and at this time is performing the duties of the office.

The provisions of the law of 1887 should be observed and faithfully carried out. It voices the public feelings of all citizens that the survivors of the brave, soldiers, to whom we are indebted for the preservation of our institutions, should be remembered and-preferred in the distribution of public office.

My appreciation of this fact, however, as well as my knowledge of the estimable character and meritorious, .services of the relator, will not allow me to. interfere by mandamus with the reasonable discretion of the board of trustees of the village of Sara-toga Springs in selecting a superintendent, if it is, in fact, a case where the law confers upon the trustees a discretion, and it appears from the papers that they have exercised that discretion in good faith.

The trustees having acted, as they testify, in good faith, and decided that the relator was not qualified for the office, and that Eyall was, and having appointed Eyall the law having imposed upon them the right and the duty to make the appointment, is this court, under the well-settled doctrine as laid down in many cases; authorized to review the action of the trustees and direct them to make another appointment ?

On carefully examining the affidavits and papers presented to me, and considering the arguments and points of counsel I find great difficulty in overruling the action of the trustees in this case.

Eyall, the party appointed by the trustees, has qualified and is now acting as superintendent; he is not a party to this proceeding, and no application is made for an order compelling the trustees to remove him, and it is conceded by counsel for the relator that any order made here would not affect his title to the office.

If I grant the order asked for, therefore the effect would be the appointment by the trustees of two superintendents. Any proceeding to remove Eyall would have to be a separate and subsequent proceeding. The authority of ‘the trustees to appoint a superintendent is under chapter 257, Laws of 1874, and the several acts amending the same. The law only gives the trustees power to appoint one superintendent. If I compel them to appoint two, I compel them to do an act beyond their power. I think that a mandamus cannot, or at least should not, be granted to compel the appointment of the relator unless coupled with an application to remove Eyall. That the order (if granted) to appoint relator should also and at the same time command the trustees to displace the present superintendent. Before such an order could be granted, however, Eyall would have to be made a party, and would have a right to appear and be heard in the matter. It is possible that the trustees have no right to remove Ryall, he being regularly appointed by them, except for some cause occurring subsequently to- this appointment. See chapter 257, Laws of 1874, § 3. If so, if Ryall cannot be removed, this would, in my judgment, be a conclusive objection to the granting of this motion. See People v. Contracting Board, 27 N. Y., 381-382.

The act under which the relator claims the office in question, chapter 464, Laws of 1887, provides that “honorably discharged Union soldiers shall be preferred for appointment and employment.”

It means, as I construe it, that where two or more apply for an office, one of whom is a discharged Union soldier, and all are equally qualified, the soldier shall be preferred, but not where the soldier is not equally qualified for the office as one of the others.

There are degrees of fitness for such an office as the one in question. One-candidate might barely be able to perform its duties in a reasonably proper manner, and another might have superior qualifications and be able to do the work much 'better. In such a case, the appointing power under the law would not be bound to appoint the former, although a discharged Union soldier.

The trustees, when they met on May 6th, were charged with the duty of deciding the question of fact: Was the relator qualified to perform the very arduous and important duties of superintendent of the village? Was he qualified equally with the other candidates ? The law cast upon them the power and the duty of deciding -this question. They had to decide it and they should have acted in deciding it honestly and in good faith. They ‘ each in their affidavits testify that they did decide the question in good faith and with the provisions of the law of 1887 in view, and with intent to obey the law. I do not think I would be justified in holding that they did not act in good faith, that they have not honestly and fairly intended to do their duty as they have testified. If they have erred in their conclusion, it does not at all, in my view, affect the validity of their action. Judges and jurors often reach erroneous conclusions, but the error cannot be corrected by mandamus; the only remedy is by appeal when an appeal lies. In my judgment, the trustees having decided the matter that the law gives them the right to pass upon, their decision cannot be overruled by tire supreme court.

It is a universal rule in respect to all subordinate tribunals clothed with the exercise of judgment and discretion, that they cannot be compelled by mandamus to decide in any particular way. People ex rel. Francis v. Common Council, 78 N. Y., 33; People v. Board of Education, 2 Abb., N. S., 177; People v. Easton, 13 id, 161; People v. Contracting Board, 27 N. Y., 381; People v. Reardon, 49 Hun, 430; 22 N.Y. State Rep., 629; People v. Chapin, 104 N. Y., 100; 5 N. Y. State Rep., 588; People v. Brennan, 89 Barb., 651; People v. Chapin, 103 N.Y., 635; 3 N. Y. State Rep., 38; Howland v. Eldredge, 46 N. Y., 457.

Although the trustees were bound to prefer a soldier, they were not bound to appoint one they deemed incompetent, or one where the other candidate possessed superior qualifications for the office.

The law conferred upon them the power and duty of deciding as to the qualifications of the relator and his fitness as compared with Ryall; they have passed upon the question against the relator, and I think the decision is final whether right or wrong.

In People v. Chapin, 39 Hun, 230, the court held that mandamus was “ not a remedy for erroneous decisions. It cannot be addressed to a judicial tribunal to require it to decide in a par-, ticular manner.” And the court referred to the case of People v. Common Council, 78 N. Y., 33, which holds among other things: “ Where the duty of selecting the person to be employed is imposed by law upon the municipal body, and the question whether they possess the requisite qualifications is one of fact to be determined by it, no particular mode of determination being provided by law, and said body has exercised the power and made the selection, its action cannot be reviewed by mandamus, nor can it be compelled by that proceeding to appoint particular persons on their allegations that they in fact, and not the persons actually selected, possess the prescribed qualifications. Where the subordinate body is vested with power to determine a question of fact, the duty is judicial, and it cannot be compelled by mandamus to decide in a particular way, however clearly it be made to appear what the decision ought to be.” See, also, 103 N. Y., 635; 104 id., 100.

The matter of the application of the relator for the appointment was passed upon by the trustees at the meeting of May 6th. They knew he was a soldier, but had no evidence of his fitness, or unfitness, for the office he desired; but the trustees testify that they knew him and his qualifications, and also the qualifications of the other candidates. They were obliged to pass upon this matter then, and with the evidence before them. They did pass upon the question, and found against the relator. I am of the opinion that their finding upon the question of fact as to the relator’s qualifications for the office, if wrong, cannot be corrected in this proceeding.

Other questions were raised and discussed before me, but in the view I have taken of the case it is not necessary for me to consider or pass upon them. I have been referred to a decision by Judge Forbes in the case of the People ex rel. Stevens v. Bardin. It is sufficient to say that in that case the fitness of the relator for the position he desired, as well as the fact that he was an honorably discharged Union soldier, was conceded and assumed by the judge in his opinion. No question was raised, as appears by the opinion, as to the qualifications of Stevens for the office he desired; hence that case is unlike the case before us.

On the whole, I am of the opinion that I have not the power to grant this application. The law has conferred upon the trustees the power of selecting their own superintendent, and of judging of his qualifications for the office. I am unable to find from any evidence before me that they have not acted in good faith in selecting the present incumbent, I think that their selection cannot be overruled in this proceeding. I, therefore, deny the motion, but without costs.

Edward J. Maxwell, for relator, app’lt; J. L. H nning and L. B. Pike, for resp’ts.

Order affirmed, with fifty dollars costs and disbursements, on opinion below.

Learned, P. J., and Fish, J., concur.  