
    The People ex rel. Cyrus M. Ballou, App’lt, v. John D. Wendell, County Judge, Resp't.
    
      (Supreme Court, General Term, Third Department
    
    
      Filed July 7, 1890.)
    
    1. Vetebans — Mandamus.
    Relator, an honorably discharged Union soldier, with sufficient qualifications, applied for the office of crier of the courts. Respondent appointed a civilian. Held, that the statute did not give relator the office, or command that he alone of all the honorably discharged soldiers should be appointed, and hence he had no such clear right to the appointment as to entitle him to a mandamus.
    
    2. Same.
    _ The writ of mandamus is not an appropriate remedy to review the decision and action of the county judge in making such appointment.
    Appeal from the order of the circuit court of Montgomery county, refusing to submit to the jury upon the trial thereof any of the issues of fact joined by the alternative writ of mandamus and the return thereto, and from an order dismissing the proceeding with costs.
    The relator, an honorably discharged soldier of the Union army and otherwise eligible to appointment, in January, 1889, applied to the defendant, as county judge of Montgomery county, to be appointed crier of the courts of record for said county. Tire judge appointed one Folmsbee, a civilian, to the office. Whereupon the relator obtained a writ of alternative- mandamus. The defendant made return to the writ, denying the capacity of the relator to discharge the duties of the office, and alleging that Folmsbee had the better qualifications, and therefore the defendant appointed him, and taking issue upon other allegations of -the writ. These issues were brought to trial before the circuit court and a jury, At the close of the testimony, upon motion of the defendant, the court dismissed the proceedings with costs, refusing to submit the case to the jury. From the order reciting this disposition of the case the relator appeals. '
    
      Sayles, Searl & Sayles, for app’lt; W. B. Dunlap, for resp’t.
   Landon, J.

Since the trial court refused to submit the case to the jury and dismissed the proceeding, we may assume upon this appeal that every controverted question of fact might have been found in the relator’s favor by the jury if the case had been submitted to them.

The case then is, that there was a vacancy in the office of crier of the courts of record for Montgomery county, that the relator was an elector of the county and an honorably discharged soldier of the Union army, and was the only soldier who was an applicant for the office, and that he possessed qualifications sufficient to perform the duties of the office.

That one Folmsbee was also an applicant for the office, and that the county judge, after a consideration of the matter, appointed Folmsbee instead of the relator. That the county judge, in making the appointment, considered that Folmsbee would make the better officer.

The question, then, is, would the relator, assuming these facts to be found in his favor, be entitled to a writ of peremptory mandamus requiring the county judge to appoint him. We think not. The statute does not give him the office, nor command that he alone of all the honorably discharged Union soldiers shall be appointed. It says that such soldiers shall be preferred, other necessary qualifications existing. It points out no method by which one soldier shall have a preference to the appointment over all other soldiers; it simply prefers soldiers to civilians. Even if the appointment of Folmsbee should be vacated, and the county judge were peremptorily commanded to appoint a soldier, he would have the ■ whole body of eligible soldiers from whom to select It follows that the relator has no clear legal right to the appointment to the exclusion of all other soldiers, and hence lacks the clear right essential to a mandamus.

Again, mandamus issues to compel inferior tribunals and officers to act Assuming that it was the duty of the county judge to appoint a crier, he could make that appointment from the whole body of eligible electors. All that mandamus could do would be to compel him to act and make the appointment. In so far as he had discretion in exercising the right of selection, mandamus could in no wise control that discretion.

The county judge had the duty to select, the power and duty to appoint. He has discharged that duty, and has no further duty now to perform. Whatever may have been his obligation to give the soldiers a preference, his power to discharge that obligation ended when he made the appointment. People ex rel. Lockwood v. Saratoga Springs, 54 Hun, 16; 26 N. Y. State Rep., 54; People ex rel. Hall v. Village of Little Falls, 29 id., 723 ; People ex rel. Stephens v. Barden, 30 id., 52; People ex rel. Snyder v. Summers, id., 614.

The relator’s grievance is not that the county judge refused to act, but that he erred in his action and appointed a civilian instead of .a soldier. Whether there is any method to review his decision and action we are not called upon to decide; it is enough now to .say that mandamus is not an appropriate method to review it

Besides, Folmsbee was appointed to the office, and presumably is in possession of it. He is not a party to this proceeding, and icannot be turned out without his day in court in the proper action. The relator cannot be inducted into office unless a ■vacancy can be legally made for him to fill. It cannot be made in this proceeding.

The learned counsel for the relator cites Matter of Wortman, 22 Abb. N. C., 137, as an authority for mandamus. Mandamus was refused in that case. In the Matter of Sullivan, 28 N. Y. State Rep., 566, the soldier had procured his preferment to employment and then was arbitrarily deprived of it. Mandamus was issued to compel his restoration to his rightful place.

The difference between depriving a person of what is already rightfully his own, and compelling the bestowment upon him of what he never had, is suggested in the case and is very plain. That difference exists between that case and this.

It is manifestly difficult to enforce in cases like the one before us the compulsory preference which the act seems to prescribe. Practically the act embodies an inconsistency in principle. It .seeks to give a preference to one class of citizens as a class, without impairing that equality of civil rights which the soldier struggled to establish, and also without changing the wise maxims of government by which justice is administered. We cannot put the relator in without turning Folmsbee out, and, so far as we know, Folmsbee has a right to stay in. We cannot put the relator in without changing the rules governing mandamus, and the legislature has not authorized any change. There are many soldiers, and the relator is only one, and the act does not provide for merging in him the rights of every other soldier and of every other person eligible to appointment.

The order and judgment thereon should be affirmed, with costs.

Learned, P. J., and Math am, J., concur.  