Opinion
November Term, 1898.
James F. Swanick, for the appellant.
Nash Rockwood, for the respondent.
Chapter 464, Laws of 1887 (amending chap. 312 of the Laws of 1884), provides that "In every public department," including those of villages, "honorably discharged Union soldiers * * * shall be preferred for appointment." Section 1, chapter 821; Laws of 1896, contains the same words.
The Public Health Law (Chap. 25 of the General Laws [Laws of 1893, chap. 661]) provides for the creation of local boards of health, and prescribes their powers and duties. In villages the members of the board of health, not less than three nor more than seven, must be appointed by the board of trustees of the village. (§§ 20, 21, art. 2, of the act.) Such boards of health are independent departments, clothed with large powers. It is obvious that the department will not in fact exist until it is constituted by the appointment of the requisite members of the board of health. Being thus constituted, then appointments can be made in the department, and not until then. The statute gives preference in appointment in the department to honorably discharged Union soldiers, not a preference in the appointment of the heads of the department. ( People ex rel. Fonda v. Morton, 148 N.Y. 162; People ex rel. Balch v. Mayor of Yonkers, 39 N Y St. Repr. 11; People ex rel. Wren v. Goetting, 29 id. 286.)
The direction of a department of the government is one thing, the execution of the directions given by it is another, and the statute cited relates to the latter function.
The order should be reversed, with ten dollars costs, and motion denied, with ten dollars costs.
All concurred, except PUTNAM, J., not acting.
Order reversed, with ten dollars costs and disbursements, and application for mandamus denied, with ten dollars costs.