
    The People ex rel. Frederick A. Russell, App’lt, v. The Board of Fire Commissioners of the Village of Saratoga Springs, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 13, 1894.)
    
    1. Municipal Corporations—Officers.
    To entitle a party to reinstatement in office, after removal, he must show a clear legal right to such office.
    2. Same.
    Where offices are inconsistent with each other, or a union of them in the same person has a tendency to impair the public service, the occupant must surrender the one or the other if both appointments were conferred upon him at the same time, or, if they were conferred at different times, the acceptance of the last, forfeits the first office.
    Certiorari to review the proceedings of the Board of Fire Commissioners in removing the relator from the office of assistant chief engineer of the fire department of the village of Saratoga Springs.
    
      A. W. Shepherd, for app’lt; J. F. Swanick and J. T. Brusnihan■ (J. F. Swanick of counsel,) for resp’t.
   Herrick, J.

By § 26 of chapter 220, of the Laws of 1866, as .amended by § 1 of chapter 322, of the Laws of 1887, the Board of Fire Commissioners of the village of Saratoga Springs, has power to make the following appointments: “A chief engineer, at a salary to be fixed by them, but not to exceed $1000 per annum for the chief engineer, $125 per annum for the assistant engineer, and $600 per annum for the superintendent of the fire-alarm telegraph. They shall also have power to employ, on such terms as they shall think best, four or more firemen, not to exceed eight men for a hook and ladder company, and not to exceed twenty men for a hose company. The compensation for such firemen shall not exceed $600 per annum.”

On the first day of April, 1893, the defendants, the Board of Fire Commissioners, appointed the relator assistant chief engineer of the fire department, which appointment was accepted by the relator on the same day, by a separate and distinct certificate of appointment. The said Board of Fire Commissioners also appointed the relator a fireman of the fire department, for a term of one year, at an annual salary of $600, payable monthly, which appointment was also accepted by the relator; that both such appointments and acceptances were in writing, and the acceptances signed by the relator. Each appointment was for the term of one year, to commence May 1, 1893. At a meeting of the Board of Fire Commissioners, held on the first day of May, 1893, the following resolution was adopted: “ Whereas, It appears that Fred A. Bussell is at the present time doing the work of two men, • viz., that of permanent fireman and assistant chief engineer of the fire department; and it appearing that the two positions being too much work for one man to perform, be it resolved that the said Bussell be commanded to show cause, before a meeting of this board, to be held on the eighth day of May, 1893, at 7:30 o’clock, p. M., why he should not be removed from the position of assistant chief engineer of the fire department of the village of Saratoga Springs.”

The clerk of the board was directed to serve a copy of such resolution upon the relator, and it was served upon him on the second day of May, 1893.

On the eighth day of May, 1893, at a meeting of said Board of Fire Commissioners, the subject matter of such resolution came up, and the relator appeared, by his attorney, who objected to any proceedings looking to the removal of the relator upion the ground “ that there had been no charge of unfitness in his office presented against him, and no charge shown why he should be removed, and, therefore, the board has no power to remove him.”

The relator also presented a further communication which, after reciting his appointments and claiming that since that time he has done nothing and omitted nothing appertaining to the duties of the office, which calls for his removal, states: “ That he has not performed two mens’ work since such appointment, and is not now, nor was at the time of such resolution; that the work he has performed at the central house is in the line of, and not inconsistent with, the duties of his office, and does not conflict with it in any way; that when not on active duty as assistant chief he has taken part in the general work of the house, and when the chief has been absent he has assumed the duties of his office and performed them, and been at the house at all times during such absence, ready to act in case of fire, in the same manner that the duties of the office of assistant chief were performed by William Fitzgerald, during the year just passed.”

He further says: “ That by the arrangement now in force, and commencing with the appointment of William Fitzgerald, the assistant chief is a man on duty at the central house the same as the chief, and ready for duty at the sound of the alarm, and not as was the case before the assistant chief was not one of the permanent firemen, a man liable to be in any part of the town, and liable, also, to miss the alarm, and so be late at a fire or not get there at all.”

“ The undersigned, therefore, respectfully urges that there is no ground for his removal from the office on the grounds alleged in the resolution.”

After hearing the relator’s counsel, orally, the Board of Fire Commissioners, by resolution, removed the relator from the office of assistant chief engineer, and by another resolution appointed another person, to said office, in his place and stead.

The relator then commenced these proceedings, by certiorari, for a review of the proceedings of the Board of F11-e Commissioners, upon his removal, and for his reinstatement in said office of assistant chief engineer.

To entitle the relator to the relief he seeks, he must show a clear legal right to the office that he seeks to be reinstated in; it is of no consequence how informal or irregular the proceedings of the board may have been, if he is not legally entitled to the office. If he was not legally holding the office the board could dismiss or drop him from the roll, without a trial, and if they wrongfully did so, he being in fact legally appointed to and bolding the office, he would have his remedy for restoration by m'andamus. People ex rel. Mc Tigue v. Manning, 16 N. Y., Supp. 604; 42 St. Rep., 81; People ex rel. Kopp v. French, 102 N. Y., 583-6; 2 St. Rep. 533.

While it is not the office of a writ of certiorari to try title to office, yet, I think in a case of this kind, where the relator seeks to be restored to office, he must show his title to it, for the Code provides : (Section 2127, Code of Civil Procedure) “ That an application for a writ must be made by, or on behalf of, a person aggrieved by the determination to be reviewed,” and if it appears upon the papers that the relator was never entitled to the office from which it is claimed he has been removed, then he has not been aggrieved by the determination he seeks to review, and is not entitled to the writ.

As we have seen the statute provides that the board of fire commissioners shall have power to appoint a chief engineer, an assistant engineer, and four or more firemen.

It seems to me that by that it intended to provide for a specific number of persons, that it had in view the needs of the department, and the the number of persons necessary to perform its duties. When the law provided for a chief engineer, assistant engineer, and. four firemen, it appears to me that it contemplated that those positions should be held by different persons, and when the board conferred more than one of the appointments authorized to be made upon one person, it was contrary to the intent of the statute.

I think it is apparent not only from the title of the office, but' from the salary fixed by the statute, as compared with the others, that the assistant engineer was only expected to act in the absence or disability of the chief engineer, and it contemplated that the chief engineer should have at least four firemen to assist him, that being the minimum numbér authorized to be appointed.

In the event of the disability from any cause of the chief engineer, the assistant engineer acting in his place and stead, if he is at the same time a fireman, would have only three fireman to assist him, and to that extent the department would be crippled and its efficiency impaired..

The law does not favor the multiplication of offices in one person, and where they are inconsistent with each other, or where such, multiplication has a tendency to impair the public service, it will be held that the occupant must surrender the one or the other if both appointments were conferred upon him at the same time, or if they were conferred at different times, the acceptance of the one last made forfeits the first.

It is to be presumed that the legislature intended to provide for such offices as were necessary for the public service, and in fixing a minimum number, that it determined that that number at least was necessary for the efficient performance of the duties imposed upon the department, and any diminution of that force, by conferring the offices and emoluments of more than one office upon one person, impairs and cripples the public service, and is contrary to the intent and spirit of the statute and is void.

It appears here on the face of the relator’s petition that both of these offices have been conferred upon and accepted by him ; the first in order of appointment and acceptance, was that of assistant chief engineer, and the second that of fireman ;• and it further appears that he is now discharging the duties of fireman, and presumably receiving compensation therefor, and it seems to me therefore that he does not show that he was legally appointed to the office to which he seeks to be restored, for if he was appointed to both of these offices at once, such appointments were contrary to law as we have seen, and his title to either is not clear; if it is held that in law they were made at different times although on the same day, then his acceptance of the appointment of fireman being the last one made, forfeited the appointment of assistant chief engineer, and he was not legally entitled to hold it when removed, and therefore he is not aggrieved within the meaning of the statute by his removal therefrom, and is not entitled to the writ.

The writ of certiorari should be quashed, with fifty dollars costs, and printing and other disbursements.

All concur.  