Opinion
Argued May 27, 1915
Decided June 18, 1915
Frank L. Polk, Corporation Counsel ( E. Crosby Kindleberger, Terence Farley and Arthur Sweeny of counsel), for appellant.
Herbert C. Smyth, Frederic C. Scofield and John W. Browne for respondent.
The relator was an inspector of masonry and carpentry in the bureau of buildings of the city of New York. The position held by him was in the classified civil service in the competitive class. He was removed from that position by the superintendent of buildings under circumstances which it is not necessary to set forth. Although an alternative writ of mandamus was issued and the issues raised by the return to that writ were tried, it is only necessary upon this appeal to determine whether the superintendent of buildings had the right, with or without cause, to remove the relator from his position. If the superintendent of buildings had the absolute power of removal under section 406 of the Greater New York charter the other questions insisted upon below and argued before us need not be discussed. In determining the question presented we shall assume that the relator was removed without cause and without having been given an opportunity to offer an explanation under section 1543 of the Greater New York charter. The claim of the appellant that the superintendent of buildings had the right to remove the relator is based upon section 406 of the Greater New York charter, as amended, L. 1905, ch. 648. That section so far as material to the matter under consideration provides as follows:
"Each superintendent of buildings shall have power to punish any employee, for neglect of duty, or omission to properly perform his duty, for violation of rules, or neglect or disobedience of orders, or incapacity, or absence without leave, by forfeiting and withholding pay for a specified time, or by suspension from duty with or without pay, not exceeding thirty days, or subject to the requirements of the civil service law remove or dismiss any inspector of buildings or other subordinate appointed by him or by any predecessor in office from the service of the bureau at any time in his discretion. Any officer or employee of or in the bureau of buildings of any borough, or police officer thereto detailed, who shall ask, solicit or accept or receive any money or other compensation for enforcing or for modifying or changing any order or requirement of said bureau shall be guilty of a felony."
The only limitation imposed by this section upon the discretionary power of the superintendent of buildings to remove an employee is that imposed by the Civil Service Law. This limitation has reference to the Veteran Acts and removal for political reasons which have no application to this case. (Civil Service Law, sections 21, 23.) There is no allegation or proof before us that the relator is within any of the provisions of the Veterans' Act or that he was removed for political reasons. The first part of section 406 quoted above confers upon the superintendent of buildings the power to punish any employee for the causes therein specified. The part that follows confers upon the superintendent of buildings subject to the requirements of the Civil Service Law the right to dismiss any inspector of buildings or other subordinate "at any time in his discretion." The latter part of this section evidences a legislative intent to confer upon the superintendent of buildings the discretionary power to remove any employee with or without cause subject only to civil service requirements. It is difficult to see how the legislature could have employed other language which would more clearly have denoted this purpose. In opposition to this view the learned counsel for the respondent argues that the phrase "at any time in his discretion" as used in this section should be construed to refer to the time of punishment for the offenses specified in the first part of section 406. In support of this contention it is urged that the present statute omits the words "and at pleasure to remove subordinate officers," etc., which were contained in section 648 of the Greater New York charter of 1897. The history of section 406 seems to us not to bear this interpretation. The subject-matter of that section was formerly governed by section 648 of the Greater New York charter of 1897 (Laws of 1897, ch. 378, sec. 648). That section (648) provided that each commissioner of buildings "shall have the power to appoint and at pleasure to remove subordinate officers, as follows." The section also defined the manner in which an employee might be punished for specified offenses, and provided, "but this provision shall not be deemed to abridge the right of said commissioner to remove or dismiss any inspector of buildings or other subordinate appointed by him or by any predecessor in office from the service of the department at any time in his discretion." Section 648 was the subject of judicial interpretation, and was held to confer upon the appointing power the right to remove any of the employees specified at pleasure. ( People ex rel. Scheel v. Guilfoyle, 65 App. Div. 498.) The Greater New York charter was revised and amended by chapter 466 of the Laws of 1901. In that revision section 648, with modifications, not necessary to be here mentioned, was substantially re-enacted as section 406. Notwithstanding the provision of this section empowering the superintendent of buildings "to appoint and at pleasure to remove" certain officers, it was held not to deprive a veteran of the protection against removal except upon charges and after a hearing, which was afforded by the Civil Service Law. ( People ex rel. Thain v. Constable, 65 App. Div. 176.) This decision was made in 1901, and in 1905, by chapter 648, section 406 of the Greater New York charter was again amended. This last amendment omitted the words "and at pleasure to remove" and inserted the words "subject to the requirements of the Civil Service Law." Thus, as amended in its present form, the section empowers the superintendent of buildings to remove the employees therein specified "subject to the requirements of the Civil Service Law * * * at any time in his discretion." The reason for the omission of the words "and at pleasure to remove" was to make the first part of the section consistent with the provision inserted by the amendment of 1905 that the power of removal conferred should be "subject to the requirements of the Civil Service Law." The omission of the words "and at pleasure to remove," to which the learned counsel for the respondent attaches significance, was not designed to take away from the appointing power the power of removal "at any time in his discretion," but was intended to make the statute consistent with the limitation to which the legislature subjected the power of the superintendent of buildings by the amendment of 1905. That amendment was intended to give statutory expression to the rule declared in People ex rel. Thain v. Constable ( supra). Thus the history of section 406 of the Greater New York charter, instead of supporting the construction urged by the respondent, discloses a contrary legislative intent which is in accord with the interpretation which we have given the statute. Section 1543 of the Greater New York charter prohibiting the removal of an employee without according him an opportunity of making an explanation applies to the cases therein specified "except as otherwise specially provided." The case of a person in the position of the relator is distinctly provided for by section 406 of the Greater New York charter. Under that section the relator was liable to removal in the discretion of the superintendent of buildings, subject only to the requirements of the Civil Service Law. There is no inconsistency between the provisions of sections 406 and 1543 of the charter. Section 1543 has no application to the cases specially provided for in section 406 and the case of the relator falls, as we have already shown, within the special provisions of that section. Except as affected by the requirements of the Civil Service Law the employees specified in section 406 are subject to removal in the discretion of the superintendent of buildings, and the exercise of that discretion is not limited by the provisions of section 1543 of the charter. The legislature having expressly declared that inspectors of buildings under the superintendent of buildings should be subject to removal in the discretion of the superintendent, the hearing accorded the relator, such as it was, must be deemed to have been merely for the satisfaction of the superintendent. ( People ex rel. Scheel v. Guilfoyle, supra.) Certainly the fact that a hearing was given did not enlarge the relator's rights or deprive the superintendent of the power in his discretion to dismiss him. The order of the Appellate Division granting the peremptory writ of mandamus should be reversed, with costs in the Appellate Division and in this court, and the order of the Special Term dismissing the writ of mandamus should be affirmed.
WILLARD BARTLETT, Ch. J., HISCOCK, COLLIN, CUDDEBACK and CARDOZO, JJ., concur; HOGAN, J., concurs in the opinion of SEABURY, J., that section 406 applies to this case, but dissents from the result on the ground that the question was not raised upon the trial or presented to the Appellate Division, and it cannot be raised for the first time upon appeal to this court.
Order reversed, etc.