
    The People ex rel. Charles E. Morrell v. Lewis J. Worth, as Police Commissioner.
    
    (Supreme Court, Kings Special Term,
    January, 1896.)
    Police Appointment — Laws of 1893,-chapter 353.
    .The board of police commissioners of the town of Flatlands had no power, under the provisions of chapter 353, Laws of 1893, to employ policemen by contract for a year, and such contracts made'by it are not binding upon the police commissioner appointed under chapter 675, Laws of 1895.
    Application for a writ, of mandamus to compel reinstatement -of the relator in. the position of policeman, from which he had been removed by defendant.
    F. K. Castner and Win. H. Sloan, for relator.
    Elliott, Jones, Breckenridge & Dater, for defendant.
    
      
       Received too late for insertion in proper place.— [Rep.
    
   Clement, J.

The relator, in his alternative writ of mandamus* sets forth that the defendant, oh or about' July 1, 1895, without any authority of law, and in violation of a contract theretofore made on or about April 29, 1.895, between the board of police •commissioners of the town of Elat-landa and the said Charles E. Morrell (whereby they employed him as a roundsman upon the police force of the town of Elatlands for the term of one year from January 1, 1895, at the yearly salary of $840 per year, payable in equal monthly payments during said term), and without any cause, summarily,' arbitrarily and wrongfully removed the said Morrell from.the. offióe of roundsman upon the police force of said town. It is also set forth that there were funds in the hands of ■defendant which were applicable to the payment of the salary of the said'Morrell as the same accrued under said contract, and that the defendant has refused to reinstate the relator. The defendant was required to reinstate the relator, and pay him his accrued salary, under said contract, or show cause why the command of the writ should hot be obeyed. The defendant haa' demurred to the writ, and the question I have to decide is whether or not the • facts set up-entitle the relator to relief by.mandamus.

At first, I propose to consider the pleadings in a technical way. It is difficult to tell, on the face of the writ, whether the relator claims' that he is an employee or an officer. It is first claimed that the police commissioners employed Morrell under a contract for one year from January 1, 1895, at a yearly salary. Afterward, it is claimed that Morrell was removed from an office. If Morrell was employed under a contract, and did not hold an office, then it is clear that he is not entitled to a mandamus, under the authority of a case recently decided by the General Term of this department in Matter of People ex rel. Finnigan v. Harmon, 86 N. T. Supp. 331. Justice Brown there said:

“The appellant contends that his employment was under a valid contract, which continues until all the .work under said act is completed. We agree with the Special Term that, if that claim is sound, the appellant has an adequate remedy at law, and is not entitled to a writ of mandamus. It is only where there is a clear legal right, and no adequate legal means for its enforcement, that a writ of mandamus is granted.” See, also, People v. Comptroller, 20 Wend. 595, 599.

H Morrell intended to claim that he held an office, and was z-emoved without cause, he cannot, be reinstated by mandamus on the facts set up in the writ, because it is not clear that he was ever appointed to an office, and a fair inference from all the facts set forth is that the "relator was simply employed under a contract one year, .by. the police commissioner. It is not, therefore, necessary to consider whether or not mandamus is the proper remedy, to reinstate an officer.

Having considered the pleadings .technically, I now will review the main points argued before me, irrespective of any narrow construction of such pleadings. By chapter 363 of the Laws of 1893 the town board of Flatlands was authorized to appoint three citizens who should constitute the board of police commissioners of the town. By section 3 of said act, said board had the power to “ employ ” such persons as they should deem necessary as policemen for said town, who should have the same powers and perform the same.duties as constables of towns and policemen of the city of Brooklyn; and, by section 4 of said act, it was provided that the commissioners should prescribe the compensation to be paid to the policemen, except that the “ salary ” of the captain of police should not exceed the sum of $1,500 per year, and that of each other policeman the sum of. $1,000 per year. In 1895, chapter 353 of the Laws oí 1893 was amended, andsuch amend- . ment became a law .on-May 14, 1895. Laws-1895, chap. 675. By the amended law it was provided that the supervisor should, immediately after the passage of the act, appoint a citizen of said town as police commissioner.; and by section 12 of the act it was directed that, immediately after the appointment and qualification of the new commissioner, the terms of office of the.board appointed under the act of 1893 should cease. The new com-' missioner had also the same power as to employing policemen and as to fixing their compensation as is provided in the prior act. It seems to me very clear, after carefully reading the act of 1893 and the amendment of 1895, that the board'of police commissioners had no power to employ the relator by contract for one year.' If they employed the relator for one year, they did so at their own risk, and subject-to the right of the legislature to repeal or amend the act from which they derived their authority." In other words, the contracts of employment made by the board are not binding on its successor. If the words.“ to employ,” in. the act of 1893, meant to designate or appoint^ as would appear by the act consolidating Flatlands with the city (see § 6, chap. 450, Laws 1894), then I am of' opinion .that the contracts of employment are void. It was held, as far back as the year 1839 (People v. Comptroller, 20 Wend. 595), and in a number ' of cases since, that, when the duration of an office is not ■ fixed by law, the appointees hold during the pleasure of the-authority making the appointments. When the defendant became the police commissioner of the town, he succeeded to the powers of the board appointed under the act of. 1893, and had the samo rights as if lie had originally been appointed under that- act '.He could discharge thé old force, whether employed or appointed, and could employ, or appoint an entire new force. . It is not for me to say that an injustice has been done to the men designated under the act of 1893, as.I know nothing of the facts. It is presumed that an officer does his duty and acts-for the .best interests of the public, and the defendant is entitled to the benefit of that presumption.-

Judgment for defendant. The. question of costs will be determined on the settlement of the final order.

¡Ordered .accordingly.  