
    The People ex rel. Charles Hoffman, App’lt, v. Charles A. Rupp et al., as Board of Police, etc., Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 16, 1895.)
    
    Mandamus—When proper.
    Where an office is already filled by an actual incumbent, exercising its functions, even when he is merely an officer defacto, under color of right, mandamus is not available to compel the admission of another claimant to the office.
    Appeal from an order, denying the application by relator for a writ of mandamus against the board of police of the city of Buffalo to compel the appointment of relator to the office of assistant sealer of weights.
    
      Geo. W. Cothran\ for relator; Frank C. Laughlin, for resp’ts.
   Bradley, J.

The proceeding was instituted by an alternative writ of mandamus, commanding the defendants to appoint the relator to the office of assistant sealer of weights and measures of the city of Buffalo, or show cause to the contrary. The writ was founded upon the fact that the relator had served in the army of the Hnited States in the late war, and was honorably discharged therefrom; that lie had made application to such board of police for appointment to that office, and was entitled to preference, pursuant to the statute, which provides that:

“In every public department (of the cities), and also in noncompetitive examination under the civil service rules, laws, or regulations of the same, wherever they apply, honorably discharged Hnion soldiers and soldiers shall be preferred for appointment and employment; age, loss of limb or 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.” Laws 1894, chap. 716.

The statute also further provided that:

“The civil service rules and laws of this state shall not apply to such persons residents of this state, who served in the army or navy of the Hnited States in the late war, and have been honorably discharged therefrom, for any position or employment, the compensation of which does not exceed four dollars a day, in the public departments and upon all public works of the state of Hew York, and of the several cities, counties, towns and villages thereof.” Id. chap. 717.

The defendants made return to the writ, and the issues were tried, and the court found as facts that the office of assistant sealer of weights and measures is a public office of the city of Buffalo, with an annual salary attached thereto of $1,000, and with a definite term of one year; that on the 12th day of December, 1894, there were two vacancies in such office, and that the filing of them by appointment devolved upon the .defendants, constituting such board of police ; that the relator was a volunteer soldier in the army of the Hnited States in the late war, and was honorably discharged therefrom; that he applied to the board for appointment to such office, and in his application set forth his military service and honorable discharge ; that he was competent to perform the duties ■of the office, and was the only honorably discharged soldier who •applied for appointment to either of those vacancies; that the board of police did not appoint the relator, but did appoint two other persons, who duly qualified and were incumbents of the office; that neither of them was an honorably discharged soldier ; that each of them had qualifications for the performance of the ■duties of the office superior to those of the relator ; and that such superior fitness was the inducement for their selection by the board, in preference to the appointment of the relator. And as conclusion of law the court determined that the writ of mandamus was not the proper remedy, and dismissed the proceeding.

The only question requiring consideration on this review is whether the remedy adopted by the relator was available for the purpose of the relief sought by him. The purpose of the statute is to give preference to honorably discharged soldiers, in making appointment to the offices within the classes there referred to, and ■such is the duty devolved upon the appointing power, not, however, excluding from consideration the question of competency and fitness for the positions. Assuming that the relator was entitled to preference, as against either of those so appointed by the defendants, he has no title to the office. That is not given by the preference, but is dependent upon appointment by the constituted authorities, without which no person can legally become an incumbent of the office. • It is in that view that the relator seeks to enforce his appointment by the defendants. They have exercised their power in that respect, and the persons appointed are in the -offices. But it is insisted that one of them was unlawfully placed there, by reason of such preference to which the relator was entitled, and that the defendants, having made the appointment in violation of law, cannot assert it in the denial of his right to the preference. The fact remains that there is no vacancy to fill. The offices are occupied by those having apparent authority, derived from appointment by the board having the power to make it. The appointment of the relator would not displace either of the present incumbents. It is not the province of a writ of mandamus to establish rights or to determine controversies. It is available only for the enforcement of a clear, specific, legal right, and there must also be an existing duty of the respondents to perform or execute it. The absence of either defeats the remedy. The proceeding by mandamus, in some sense, has the nature of an action between the parties, and is for the enforcement of a right in favor of the person in whose behalf the writ is granted. This duty of the respondents, without the corresponding right upon his part, would furnish no support for granting it. People v. Supervisors of Greene Co., 12 Barb. 217. The claim of the relator, upon which the proceeding is founded, is that he is entitled to the office. The question of his appointment in voles the consideration of the right to the office, and, unless the latter is clear, the writ of mandamus is not the appropriate remedy to enforce the former. It cannot be assumed that the right to the office does not present a disputed question, which would have to be determined upon conflicting claims between the relator and one of the present incumbents. The determination of the right in such case is not within the purpose of a proceeding by mandamus, but the question may properly arise and be disposed of in an action which now, in this state, takes the place of what was formerly known as an information in the nature of quo warranta. Code Civ. Proc. § 1983. In such case the proceeding or action is instituted by the attorney general in the name of the people, and the relief sought is not dependent upon the right of the relator. The burden, in the first instance, is with the defendant to show that he has the legal title to the office, and the fact that he is ousted for want of such title or right to the possession of it does not necessarily establish the title of the relator to it. People v. Thacher, 55 N. Y. 525.

The proposition is well settled that, where an office is already filled by an actual incumbent, exercising the functions of it, even when he is merely an officer de facto, under color of right, mandamus is not available to compel the admission of another claimant to the office. People v. Mayor, etc., of New York, 3 Johns. Cas. 79; People ex rel. Wren v. Goelting, 133 N. Y. 569; 44 St. Rep. 503. It is first to be determined, in an appropriate action in the nature of quo warranta, whether one of the persons appointed by the defendants to the office in question is rightfully in possession of it; and if the result is judgment of ouster, a vacancy is furnished. Then it may be the duty of the board of police to fill it, and in that event, if any one person is entitled to the appointment, he may, if necessary, proceed to obtain it by means of the mandatory writ. Those questions, however, do not arise here for consideration. The conclusion of the trial court, that the writ of mandamus was not the proper remedy, is well supported by the opinion of Justice Spring, before whom the trial was had.

The judgment should be affirmed.

All concur, except Ward, J., dissenting.  