
    People ex rel. Milliken v. Commissioners of Almshouse of City and Town of Newburgh.
    
      (Supreme Court, General Term, Second Department.
    
    July 22, 1892.)
    1. Appointments to Oeeioe—Union Veterans—Business Capacity.
    The office of superintendent of the poor of the city and town of Newburgh is one requiring the exercise of great care, discretion, knowledge, and business capacity, . and an honorably discharged Union soldier, lacking those qualities, is not entitled to preferment in the appointment thereto, under Laws 1887, c. 464, § 1, which gives such soldiers preference, “provided they possess the business capacity necessary to discharge the duties of thq position involved. ” People v. Trustees of Saratoga, (Sup.) 7 IT. Y. Supp. 125, followed.
    2. Same—Discretion of Board—Review.
    The determination of the fitness and qualification of applicants being left to the commissioners of the almshouse, their decision is not subject to review by the courts, and mandarmis will not lie to compel them to appoint the rejected applicant where they have determined him incompetent. People v. Trustees of Sara-toga, (Sup.) 7 N. Y. Supp. 125, followed.
    Appeal from special term, Orange county.
    Application for mandamus on the relation of John N. Milliken to compel the commissioners of the almshouse of the city and town of Newburgh to appoint relator superintendent of the poor, as an honorably discharged "Union soldier. Writ denied.
    Argued before Dykman and Cullen, JJ.
    
      E. A. Brewster, (A. S. Cassedy, of counsel,) for appellants. S. E. Dimmick, for respondents.
   Dykman, J.

This is an appeal from an order directing the issuance of a peremptory writ'of mandamus commanding the appellants to appoint the relator superintendent of the poor of the city and town of Newburgh. The order of the special term was based upon an affidavit of the relator, which stated that he was an honorably discharged Union soldier, residing at the city of Newburgh, and on the 4th day of-April, 1892, he filed with the commissioners of the almshouse an application for the appointment of superintendent of the almshouse of that city and town; that on the 5th day of April, 1892, at a regular meeting of the commissioners, in disregard of his petition, and in defiance of the law, they appointed Chauncey F. Gardner, who was not a discharged Union soldier, such superintendent for the ensuing year. The affidavit then closed with a prayer for the issuance of a peremptory writ which should command the defendants to appoint the relator such superintendent. The affidavit was silent respecting the qualifications of the relator and his competency to perfoim the duties of the office which he sought. It did not state his age, or whether he had lost a limb, or sustained any other physical impairment which might incapacitate or disqualify him. In opposition to the motion the defendants presented the affidavit of the president of the board of commissioners of the almshouse of the city and town of Newburgh, which consists of six members, in which it was stated that, by the law under which the board was organized,' it was made the duty of the commissioners to appoint an officer denominated the “superintendent of the poor of the city and town of Newburgh;” that it was the duty of such officer to reside at the almshouse, and have the control and management of the paupers therein, who numbered then about 100, to act as secretary of the board, and keep its minutes, to keep the accounts of the board, to purchase supplies for the almshouse and temporary relief, to ket-p an office in the city and receive applications for relief, to examine into the circumstances of the applicants, and keep a record of such examinations, and, generally, to perform the duties devolving by law upon the board, as its executive officer; that the office was a very important one, and required for its proper discharge very considerable ability, business capacity, and experience. The affidavit further stated that the board met at its annual meeting on the 4th day of April, 1892, for the purpose, among other things, of appointing a superintendent of the poor; that the relator applied for such appointment upon the ground that he was an honorably discharged Union soldier; that the relator was personally known to most of the members of the board, and, in their judgment, he does not possess sufficient business capacity, knowledge, and experience to fit him for a proper discharge of the duties of that office; that the other applicants were William A. Dressier, who had held the office for the last 2 years, and Ghauncey F. Gardner, who held? the office 12 years and upwards, continuously, and who resigned about 2 years ago in consequence of ill health, but whose health was now restored, and he-applied for reinstatement to the office; that Gardner, during his long service», gave satisfaction to the board and to the public, and became well acquainted? with the poor-law system, and was able greatly to aid and facilitate in the-discharge of the duties of the board; that a majority of the board fairly, and in good faith, came to the conclusion that the relator was not competent for the position of such superintendent, and that Gardner was the most competent of the three persons seeking the appointment, and the board accordingly appointed him in good faith, and without intending to violate the law.

The statute under which this proceeding was instituted is this: “Section 1. In every public department and upon all public works of the state of New York, and of the cities, towns, and villages thereof, and also in noncompetitive examinations under the civil service laws, rules or regulations of the-same, wherever they apply, honorably discharged Union soldiers and sailors, shall be preferred for appointment and employment. Age, loss of limb, or other physical impairment which does not in fact incapacitate, shall not be deemed to disqualify them, provided they possess the business capacity necessary to discharge the duties of the position involved. Sec. 2. All officials or other persons having power of appointment to or employment in the public-service, as set forth in the fust section of this act, are charged with a faithful compliance with its terms, both in letter and spirit, and a failure therein shall be a misdemeanor. Sec. 3. This act shall take effect immediately. "■ Chapter 464, Laws 1887.

It was the intention of this statute to give to honorably discharged Union soldiers and sailors a preference for appointment and employment in every-public department and upon all public works of the state of New York and of the cities, towns, and villages thereof, and also in noncompetitive examinations under the civil service laws, rules and regulations of the same, wherever they apply, without disqualification by reason of age, loss of limb, or other physical impairment which does not in fact incapacitate, provided they possess the business capacity necessary to discharge the duties of the position involved; but the proviso governs the operation of the whole statute. If the soldier or sailor possesses the business capacity necessary to discharge the duties of the position involved, he has the preference. If he is destitute of such capacity, he is not within the provisions of the law, and can derive no benefit therefrom. Capability is the prerequisite to the reception of the-preference. It was not the design of the statute to debase the public service by requiring the appointment of incompetent men to discharge the duties-of public positions, or to elevate heroism above competency, independent of other considerations. Patriotism is to be honored and rewarded in appropriate ways, but not by the distribution of public offices. Such being the manifest design of the statute, its application to this ease is simple and easy. It was the duty of the almshouse commissioners to appoint a superintendent of the poor of the city and town of Newburgh. It was an important office, and required the exercise of great care, discretion, knowledge, and business capacity. The incumbent is required to take charge of the inmates of the almshouse, disburse the poor fund and keep the accounts, act as secretary and executive officer of the board, and purchase the supplies. The selection of a fit person to discharge such duties and fill the office was intrusted to the board, and it was the peculiar province of that body to make the selection of the officer subject to no judicial control. The power of appointment was vested in the commissioners; they were personally acquainted with the relator, and, in their judgment, he did not possess sufficient business capacity, knowledge, and experience to fit him for a proper discharge of the duties of this office, ¡and they said so in their affidavit in opposition to the motion, and that fact was undisputed. Discretion and power to determine the qualification of applicants for the office in question being vested in the commissioners, it was -their duty to exercise the power, and, if the relator was found wanting and unqualified by them, he cannot force his appointment. Having decided the question upon which they were authorized to pass, in good faith, their decision cannot be overruled by this court. Subordinate bodies and tribunals clothed with .the power to exercise judgment and discretion cannot be compelled by mandamus to decide in any particular way. People v. Trustees of Saratoga, (Sup.) 7 N. Y. Supp. 125; People v. Common Council, 78 N. Y. 33. So far the case is plain upon a consideration of .the statute alone, but the reported cases which have arisen under the law ftave all been decided in consonance with the views here expressed. In the Case of Bardin (Sup.) 7 N. Y. Supp. 123, where the writ of mandamus was issued, the fitness of the relator for the position he sought was conceded and assumed. Here it was denied by the defendant, and not even asserted by the relator. In the case of People v. Trustees of Saratoga, supra, it was held, where two or more persons apply for an office, one of whom is an honorably discharged Union soldier, and all of whom are equally qualified, the soldier should be preferred; but the act should not be construed to require the soldier’s appointment where he is not as well qualified for the office as one of - the others. It was there, also, further held that the decision of the trustees in that case upon the question of fact respecting the relator’s qualification for the office, if wrong, could not be corrected in that proceeding for a mandamus. The opinion in that case, delivered by Judge Putnam at the special term, was adopted by the general term, and the order denying the motion for a mandamus was affirmed on that opinion, which is clear, full, and exhaustive, and meets with our full approval. The principles enunciated in that opinion are applicable to this case, and decisive of this appeal. The case of People v. Wendell, 57 Hun, 363, is in accord with our views. Since the preparation- of the foregoing opinion the decision of the court of appeals in the case of People v. Goetting, 30 N. E. Rep. 968, has been received, and it was there decided that mandamus was not the proper remedy in a case similar to this, and in the opinion it is said: “The office claimed is filled by another person, holding under color of right, and the question of the title to the office turns upon the construction of statutory provisions. It would be highly inappropriate, to determine such a question in a mandamus proceeding. The appropriate remedy, and an adequate one, is by information in the nature of quo warranta, in which proceeding the incumbent of the office can be heard in his own behalf upon the disputed question.”

In no view, therefore, can the relator maintain this proceeding, and the order should be reversed,.with $10 costs and disbursements, and the motion for a writ of mandamus should be denied, with $10 costs.  