
    Sullivan v. Gilroy, Commissioner of Public Works.
    
      (Supreme Court, General Term, First Department.
    
    January 10, 1890.)
    1. Office and Officer—Civil Service Laws—Veterans—Laborers.
    Laws N. Y. 1887, c. 464, giving preference of appointment and employment to honorably discharged Union soldiers and sailors upon all public works of the state, provided they possess the business capacity necessary to discharge the duties of the position involved, embraces ordinary laborers.
    2. Same—Mandamus.
    
      Mandamus to observe the provisions of the act will lie, the act itself declaring that “all public officials are charged with the faithful compliance with its terms, both in letter and spirit. ”
    8. Same—Constitutional Law.
    A statute giving honorably discharged soldiers and sailors a preference of appointment and employment upon all public works in the state of New York, and in all the-towns and cities thereof, is not unconstitutional as discriminating as to eligibility to or qualification for office.
    Appeal from special term, Yew York county.
    Application for mandamus by John Sullivan against Thomas F. Gilroy, com missioner of public works, to compel the commissioner to reinstate plaintiff in the position of a laborer in the department of public works. From an order granting the writ defendant appeals.
    Argued before Van Brunt, P. J., and Bartlett and Barrett, JJ.
    
      Thomas P. Wiskes, for appellant. Jeroloman & Arrowsmith, for respondent.
   Barrett, J.

We concur in the views expressed by Mr. Justice Andrews at special term. It will be unnecessary to repeat the principal statements of fact and law contained in his careful opinion. The only doubt which we entertained upon the argument was as to the remedy. Upon that head two views of the statute (Laws 1887, c. 464) may be taken. In one view the act is simply a general instruction to public officials, which can only be enforced by dischpine or punishment; in the other, a specific duty is imposed, and a specific right conferred, upon individuals. Upon full consideration the latter view seems more in consonance with the legislative intent. It is impossible to read this act without a realizing sense of the legislative determination to secure to “honorably discharged Union soldiers and sailors” the contemplated preferment. All public officials “are charged with the faithful compliance with its terms, both in letter and spirit," and a failure therein is declared to be a misdemeanor. The veterans are not to be deemed disqualified by age, loss of limb, or other physical impairment, “provided they possess the business capacity necessary to discharge the duties of the position involved.” This amounts substantially to a legislative command, directed to the heads of departments, requiring the performance of a particular duty in a particular manner; and it brings the case within one of the principles peculiarly applicable to mandamus. The duty is a public one, and individuals who have a clear right to its performance are without adequate remedy at law to secure such performance, or to enforce their right. It cannot be that the legislature, after making such minute and rigid provisions as to the right, meant to leave the objects of their very special consideration without a direct remedy for the practical enforcement of such right. It stands to reason that the application of ordinary remedies against derelict officials will not suffice adequately to enforce this law, as it is required to be enforced, both “in letter and spirit. ” Take the present instance. Uo one doubts Mr. Gilroy’s good faith in the construction which he has placed upon the act. He could neither be removed nor indicted upon the facts presented by this application. Yet he erred to the detriment of the relator. Even if a different case liad been presented,—a case, let us suppose, of willful evasion,—of what avail would the punishment of the official be to the, suffering and perhaps hungry veteran? The legislature has guarantied employment to the capable veteran where there is need of service; and the courts should treat that guaranty as vital, and as importing an active right to be enforced, in favor of the individuals embraced within the class, in the same broad and untechnical spirit as that imposed by the act itself upon the officials charged with its execution. The facts are not in dispute. It is true that Mr. Gilroy, in his opposing affidavit, says that he has “no knowledge or information sufficient to form a belief whether John Sullivan is an honorably discharged soldier, having served as such in the Union army during the war of the Rebellion.” This, however, is no answer to the following facts, stated in Sullivan’s affidavit, and nowhere denied: “I further say that I am an honorably discharged Union soldier of the late war, having enlisted i n Company E of the sixty-ninth JSI ew York regiment of infantry volunteers, on September 25, 1862, for three years, and was discharged after the close of the war, on July 15, 1865, and that I am a member of Michael Corcoran Post 427, and a comrade in good standing. I further say that one Mr. Blauvelt, connected with the water purveyor’s bureau, in the department of public works, was designated, by direction and authority of the commissioner of public works, as I am informed and believe, to make a list of all persons in the employ of the said department, in .any way connected with or under the supervision of the water purveyor’s bureau, who were honorably discharged Union soldiers and sailors of the late war, and that I produced my discharge to said Blauvelt, who directed one Tyler to make a memorandum of my enlistment and discharge, which he did in my presence, and placed my name upon the list of honorably discharged Union soldiers in the department. ”

The material fact is that Sullivan is an honorably discharged soldier. This is clearly sworn to, and the facts with regard to it are stated in detail. The respondent below neither denied the fact, nor controverted the proof of the fact. The veteran’s right to preferment depends upon the fact, not upon the official’s willingness or unwillingness to credit the fact. In People v. Board of Assessors, 52 How. Pr. 140, it was distinctly held by this general term j that Mr. Gilroy’s form of denial was unauthorized, and that it really amounted to nothing. This is conceded in the appellant’s points, the denial being supported only upon the contention that the commissioner’s knowledge or infer-motion sufficient to form a belief is the material fact to be proved in a case like the present, a contention which we conceive to be entirely inadmissible. The true rule is, as was said in People v. Board of Police, 107 N. Y. 236, 13 N. E. Rep. 920, that to justify the withholding of the peremptory writ there must be “an honest dispute as to material facts to be determined.” Clearly, there is no such dispute in this opposing affidavit. See, also, In re Railroad Co., 99 N. Y. 12, 1 N. E. Rep. 27; and Railroad Co. v. City of Rochester, 46 Hun, 149.

We also think that the act is sufficiently comprehensive to embrace ordinary laborers. There are no words of limitation, and we fail to see, in the expression, “employment upon all public works of the state of Eew York, and of the cities, towns, and villages thereof,” anything to justify the idea of exclusion by implication. It would be strange if “employment upon the public works did not include the workers who do most of the work. The opposite construction is contended for because of the use in the proviso of the words, “business capacity necessary to discharge the duties of the position involved.” We do not think that this proviso has the effect of limiting the employment of veterans to business positions. The purpose is rather to qualify them for such positions when, spite of “age,loss of limb, or other physical impairment,” sufficient capacity exists to discharge the duties. It would be absurd to say that age, loss of limb, or other physical impairment, should not be deemed to disqualify for duties requiring health, strength, and stout arms. Clearly what was meant was that physical incapacity, compatible with the due performance of non-physical duties, should not disqualify for non-physical employments.

Lastly, we think that the constitutionality of this act is reasonably free from doubt. It does not seek to abridge rights guarantied by the constitution. It does not discriminate as to eligibility to or qualification for office. It simply regulates the agencies for service upon the public works of the municipality. We suppose that this entire subject is under legislative control. The legislature may lawfully provide for the doing of public work in such manner and with such agencies as it deems proper; and we know of no provision of the constitution which confers upon any citizen a right to appointment or employment upon such work, or which limits the legislative choice as to the appropriate means of performance. Finally, the mandamus will be precise and effective. The papers show that there is work to be done, and that to do it others have been really preferred over the relator. This is the truth, however the act may be colored. The scheme of the statute cannot thus be reversed, and the course adopted in the department should not be permitted. With questions of original preferment, where others than the veterans are already employed, we have nothing at present to do. The relator here had already secured his preferment. Upon evidence satisfactory to an agent of the present commissioner, or of his predecessor, Sullivan’s name had been placed upon the list of honorably discharged Union soldiers in the department. Without questioning this fact, the relator was summarily deprived of his vested preferment. That preferment should be restored to him as summarily as it was taken away. The order appealed from should therefore be affirmed, with costs. All concur.  