Opinion
Argued October 7, 1902
Decided November 11, 1902
Thomas H. York for appellant. George L. Rives, Corporation Counsel ( Theodore Connoly and William B. Crowell of counsel), for respondent.
The courts below have denied the relator's application for a peremptory writ of mandamus, requiring the board of aldermen of the city of New York to elect him to the position of an assistant sergeant-at-arms to that body. There is no dispute with respect to the facts. The relator is a veteran soldier, and on the 6th of December, 1898, was appointed an assistant sergeant-at-arms to the council of the city of New York, pursuant to section twenty-seven of the charter. At the time of his appointment the municipal assembly consisted of the council and board of aldermen. By an amendment of the charter (Chapter 446, Laws of 1901) the legislative power of the city became vested in the board of aldermen; the council being thus abolished, all the powers and duties theretofore exercised by the municipal assembly were devolved upon the board of aldermen. This new board has power, among other things, to appoint a sergeant-at-arms and assistants. The relator, being a veteran soldier and having been an assistant sergeant-at-arms of the council as it existed prior to the amendment of the charter, claims that upon the abolition of that body he was entitled to be transferred to a similar position in the board of aldermen. This claim is made under section twenty-one of chapter three hundred and seventy of the Laws of 1899. That statute, by its terms, has no application to certain positions therein described as confidential, and the principle upon which this case has been decided was that an assistant sergeant-at-arms occupies confidential relations to the appointing body, and, hence, was excepted from the requirements of the statute giving preference to veterans.
It may be that the position of assistant sergeant-at-arms to the board of aldermen is what the statute describes as confidential; but we do not think it necessary to pass upon that question in this case, since there is a broader ground upon which we prefer to place our decision. The board of aldermen is a legislative body. It has the power to elect its own officers and attendants, and neither the statute giving preference to veteran soldiers nor section fifteen hundred and forty-three of the charter has any application to such a position. These statutes were obviously intended to govern appointments in the various departments of the civil service of the city. They have no application to elective officers or appointees. No one yet has asserted that the general laws in regard to veteran soldiers, or the statute which regulates appointments in the civil service, have any application to legislative bodies. The senate and assembly of this state still have the power to elect their own officers and attendants, untrammeled by any of the restrictions contained in the Civil Service Law, or any other statute in regard to appointments. The same principle is applicable to the board of aldermen of the city of New York. There is no law that we are aware of which requires that body to elect any particular person to the position of assistant sergeant-at-arms; and so, whether the position is confidential or not, the relator was not entitled to compel the board by mandamus to elect him.
The case was correctly decided below, and the order appealed from should be affirmed, with costs.
PARKER, Ch. J., HAIGHT, VANN, CULLEN and WERNER, JJ., concur; BARTLETT, J., not voting.
Order affirmed.