
    PEOPLE ex rel. HALL v. BOARD OF TRUSTEES OF VILLAGE OF SARATOGA SPRINGS et al.
    (Supreme Court, Appellate Division, Third Department.
    November 16, 1898.)
    Officers—Appointment of Veterans—Board of Health.
    Laws 1887, c. 464, and Laws 1896, c. 821, § 1, providing that “in” every public department honorably discharged Union soldiers shall be preferred for appointment, does not require the appointment of a soldier as a member of the board of health of a village, because the board is itself a “department,” and a member thereof is not an appointee “in” such department.
    Appeal from special term.
    Mandamus, on relation of William H. Hall, against the board of trustees of the village of Saratoga Springs and another. From an order granting an alternative writ the respondents appeal.
    Reversed.
    On the 4th day of April, 1898, it was the duty of the respondents the board' of trustees of the village of Saratoga Springs to appoint a member of the board of health of said village. The relator applied to the respondents for such appointment, and, in connection with .his application, submitted his affidavit, stating in detail his qualifications, and the fact that he wqs an honorably discharged Union soldier of the late Oivil War. The board of trustees did not appoint the relator, but did appoint the respondent James W. Fitzpatrick. This appeal is from an order awarding an alternative writ of mandamus. The affidavits on the part of the respondents allege that they are advised that chapter 821 of the Laws of 1896 does not apply to an appointment of a member of the board of health; that Wendell W. Wheeler, an honorably discharged Union soldier, also applied for the appointment; that the relator had previously held the said office, and had not properly performed its duties, and was incompetent; and that the board of trustees had appointed Fitzpatrick because they deemed him better qualified to perform its duties.
    Argued before PARKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ.
    James F. Swanick, for appellants.
    • Nash Rockwood, for respondent.
   LANDON, J.

Chapter 464, Laws 1887, provides that “in every public department,” including those of villages, “wherever they apply,, honorably discharged Union soldiers * * * shall be preferred for appointment.” Section 1, c. 821, Laws 1896, contains the same words. The public health law (chapter 25, Gen. Laws 1893) provides for the creation of local boards of health, and prescribes their powers and duties. In villages the members of the board of health, not less than three nor .more than seven, must be appointed by the board of trustees of the village. Sections 20, 21, art. 2, of the act. Such boards of health are independent departments, clothed with large powers. It is obvious that the department will not, in fact, exist until it is constituted by the appointment of the requisite members of the board of health. Being thus constituted, then appointments can be made in the department, and not until then. The statute gives preference in appointment in the department to honorably discharged Union soldiers, not a preference in the appointment of the heads of the department. People v. Morton, 148 N. Y. 162, 42 N. E. 538; People v. Mayor, etc., of City of Yonkers (Sup.) 14 N. Y. Supp. 455; People v. Goetting (Sup.) 8 N. Y. Supp. 742. The direction of a department of the government is one thing, the execution of the directions given by it is another; and the statute cited relates to the latter function. _ '•

_ The order should be reversed, with $10 costs, and motion denied, with $10 costs. All concur, except PUTNAM, J., not acting.  