Opinion
November, 1896.
Simon Fleischmann, for relator.
Charles L. Feldman, for board of aldermen.
This is an application by the relator for a writ of peremptory mandamus under section 2070 of the Code of Civil Procedure, commanding the said board of aldermen to direct a warrant to be drawn in favor of the relator for the sum of $41.96, in payment for services rendered by him to the city of Buffalo as an inspector of buildings for the latter half of the month of September last.
The undisputed facts, as disclosed by the papers presented, are in substance as follows:
On or about July 15, 1896, the relator was examined by the civil service commission of Buffalo as a candidate for the position of building inspector. He passed the examination to the satisfaction of the commission, which certified him to the board of public works as a practical building mechanic, fit and qualified to perform the duties of a building inspector.
Thereafter, and on or about August 1, 1896, the said board of public works appointed the relator an inspector of buildings, under and by virtue of subdivision 4 of section 273 of the city charter. The relator thereupon entered upon, and has ever since continued in, the discharge of his duties as such inspector. His actual qualifications and fitness for the position are not questioned.
On September 21, 1896, the board of public works certified to the board of aldermen that there was due to the relator $41.66 for services as such inspector of buildings for the last half of that month, and recommended that a warrant be drawn therefor.
Instead of ordering the warrant drawn as recommended, the board of aldermen has from that time to this refused and still refuses to order the warrant drawn, on the sole ground that the relator was not, when appointed, and is not now, legally qualified for appointment to the position to which he was appointed, and the duties of which he is discharging. The board of aldermen has referred the claim of this relator for his half month's salary to its committee on claims, as an equitable claim, and said committee now has the claim under consideration. But the board of aldermen has already made an investigation as to the legality of the appointment of the relator and has determined that it was illegal. This investigation was made without any power to make a binding decision concerning the subject-matter in the board of aldermen.
For more than five years prior to his appointment as a building inspector, the relator has been a student of architecture and building construction, theoretical and practical, in the office of well-known architects, and had worked upon buildings of different kinds, had made plans for, and superintended the construction of, such buildings, and had inspected the work of their construction in all its branches; he is thoroughly familiar, both theoretically and practically, with all the details of the mechanism and construction of the buildings and also with the quality and uses of all the materials required in buildings, as well as with the proportionate strength of walls, timbers, columns and supports and the strain and pressure to which they may be subjected.
For many years in this country and elsewhere the superintending and inspection of public buildings by persons other than the laborers occupied thereon has been, and is, an occupation by itself.
Such are the substantial facts upon which the relator bases his demand for the writ.
Under the charter of the city of Buffalo there is a department of public works, within which there is a bureau of building. The head of the department of public works is the board of public works, composed of three commissioners. The bureau of building, under the board of public works, has charge of the construction, alterations and repair of all buildings in the city.
The charter provides that the board of public works shall appoint inspectors of buildings, who shall be under the control of the head of the bureau of building, and that such inspectors shall be practical building mechanics of not less than five years' experience in their trade.
As has been stated, the board of aldermen base their refusal to order a warrant drawn in favor of the relator upon the sole ground that the relator at the time of his appointment was not, and is not now, legally qualified to fill the position of building inspector, because, as they allege, he was not then, and is not now, a "practical building mechanic of not less than five years' experience in his trade."
In my opinion, the attitude of the board of aldermen is not justified for two reasons, either of which is conclusive against them. The first reason is, that, as matter of fact, the relator is, according to the papers presented, a practical building mechanic of not less than five years' experience in his trade; and the second is, that, as a matter of law, ineligibility for the position cannot now be established in the way the board seeks to accomplish that end.
The words of the charter prescribing the qualification of an inspector of buildings should receive such reasonable interpretation as will make them effective for the accomplishment of the ends sought, and that is, among other things, to exclude from the position in question inexperienced, unskilled, unfit and incompetent persons, and to secure the services of persons having a practical knowledge of the construction of buildings; and it would seem that the qualifications of the relator, as disclosed in his own affidavit, which is conceded to be true by not being denied, are of a high order, and that he is fully competent to pass upon the character and quality of all the material and workmanship which enter into the construction, alteration and repairing of buildings of all kinds.
It seems to me that his description of himself and of his qualifications pictures to the mind a practical mechanic, who is especially skilled in the art of building, and acquainted with the rules and methods observed and pursued by those engaged in constructing, altering and repairing buildings of all kinds, and possessing the skill to apply those rules and to adopt and follow those methods. He is, according to the record, skilled in all the trades which have to do with the construction of buildings, and such a person, according to the Century Dictionary, is an artisan, a handicraftsman and a mechanic within the meaning of the charter.
The relator is clearly a "practical" mechanic, because he has devoted himself for several years to the actual drawing of plans for, and the construction of, buildings of various kinds. I am of the opinion that it is possible for a person without legs or arms to become a practical building mechanic; that is to say, it is not necessary for a person to perform manual labor with the tools of any special trade or occupation to become such a mechanic. If such a person is competent to devise, direct and supervise the construction of all kinds of buildings in all their parts, he is at once an artisan, a handicraftsman and a mechanic. If he does all those things, he is a "practical mechanic," whether he has ever touched a tool of any particular trade or handicraft or not. The expression "trade" applied to the calling of a stationary engineer in rule XXX of the civil service rules of this city is certainly not more accurate than the use of the word "trade" as describing the calling of a "building mechanic."
Pursuant to the Civil Service Law of the state, the mayor of Buffalo has prescribed regulations for the admission of persons into the civil service of the city, which are designed to promote the efficiency of the service and to ascertain by examination and inquiry the fitness of candidates in respect to character, knowledge and ability for the positions which they seek to fill.
The relator passed the examination prescribed by those regulations, and his fitness, knowledge and ability for the position which he now holds were certified by the civil service examiners to the board of public works, as required by law, whereupon he was, in conformity with the provisions of law, in form, duly appointed an inspector of buildings, and has ever since discharged the duties of the office to the satisfaction of the city.
The right of the relator to obtain the position to which he has been appointed by the board of public works, by virtue of good character, fitness and special qualifications for the place, is a valuable personal right guaranteed and protected by the law of the land. Emmitt v. Mayor, 128 N.Y. 117.
The civil service commission of the city is made sole judge as to such character, fitness, and qualifications. It proceeds by examination and inquiry; it exercises its judgment and discretion in the premises; therefore, its action is judicial in its nature, and it is a well-settled rule of law in this state that such action cannot be impeached collaterally, but only by direct proceedings instituted for the purpose.
So that the question whether the relator is legally qualified to fill the position he occupies or not is not open for consideration by the board of aldermen. The board is bound in that respect by the decision of the only tribunal authorized to pass upon that question in the first instance — the civil service commission. If the commission has violated the law, its error can be easily corrected in the manner and by the means provided by law for that purpose. While the certificate given by the commission to the relator remains unimpeached, his right to occupy the position of an inspector of buildings cannot be successfully disputed by the board of aldermen. The common council of the city cannot undo or nullify the action of the civil service commission whose certificate of fitness the relator holds.
Now, as to the propriety of granting the writ asked for. In so far as this case is concerned, the charter provides that the pay account of the relator shall be certified to the common council by the board of public works, and on receipt of the same the common council shall order the proper warrant for the payment of the account to be drawn on the treasurer, and the ordinances provide that his salary shall be paid semi-monthly during the time he shall occupy his position as inspector of buildings. The relator's pay account for the latter half of September has been certified by the board of public works, and it has been received by the board of aldermen, and all the steps and proceedings required to be taken by law prior to the ordering by the board of aldermen of a warrant to be drawn in his favor for his half month's salary have been taken; and the only reason why the warrant has not already been ordered drawn is, as hereinbefore stated, that the said board of aldermen claims the relator was, and is, ineligible to the office or position of inspector of buildings.
The language of the charter is, that upon the certificate of a pay account, such as the one in question, by the board of public works to the common council, it, the common council, shall order the proper warrants to be drawn; and, while I do not believe the courts would command it to perform that act in a case not free from doubt as to the justice and validity of the pay account certified, in a case like the one in hand, where there is no dispute as to the facts, and the right sought to be enforced seems clear, relief by mandamus is proper, even if an action would lie against the city upon the refusal of the board of aldermen to order the warrant drawn. From my point of view, under the circumstances the act by the board of aldermen of ordering the warrant drawn is purely ministerial. It is an official act enjoined by statute which in due course of procedure must necessarily precede the right and the ability of the relator to demand his pay; and the right to enforce its performance by mandamus seems to be established by the cases of Dannat v. Mayor, 66 N.Y. 585; People ex rel. Ready v. Mayor, 144 id. 63; People ex rel. New York H.R.R. Co. v. Havemeyer, 3 Hun, 97; People ex rel. Woods v. Crissey, 91 N.Y. 616; People v. Supervisors, 45 id. 196; Swift v. Mayor, 83 id. 528; People ex rel. Hall v. Supervisors, 32 id. 473; People ex rel. Satterlee v. Board of Police, 75 id. 38.
The mandamus asked for by the relator must, therefore, issue.
Application granted.