People ex rel. McClosky v. Andrews

61 N.Y. St. Rep. 729

• Court: The Superior Court of New York City
• Decided: September 15, 1894
• Status: Published

Opinion

McAdam,

—The act of 1892 (chap. 269, § 704b) provides that “ no member of the clerical force of the department of street cleaning shall be removed until he has been informed of the cause of the proposed removal, and has been allowed an opportunity to make an explanation, and in every case of removal, the true grounds thereof shall be entered upon the records of the department. The commissioner of street cleaning shall have the power, in his discretion, on evidence satisfactory to him, that a member of the uniformed force has been guilty of any legal or criminal offense, or neglect of duty, violation of rules, or neglect or disobedience of orders, or incapacity, or absence without leave, or conduct injurious to the public peace or welfare, or immoral conduct, or any breach of discipline, to punish the offending party by forfeiting or withholding pay for a specified time, suspension, for a period not exceeding thirty days, or by dismissal from the force,” etc.

It will be observed that the language of the act carefully discriminates between a member of the “ clerical force ” and a member of the “ uniformed force ” by affording an opportunity to the former of making an explanation before dismissal, but dispensing with any such requirement in the case of the latter. As regards the uniformed force, it is left to the discretion of the commissioner on evidence satisfactory to him to determine whether a member of that branch of the department has been guilty of any of the acts before specified, and when satisfied of the guilt of such person the commissioner has the power, without affording the offender any hearing, to dismiss him at once.

Section 704a of the act expressly provides for the discrimination aforesaid by declaring that the members of the department of street cleaning shall be divided into two general classes, to be designated respectively the clerical force and the uniformed force.

The -act of 1894 (chap. 368) in no manner affects the power conferred by the act of 1892.

Members of the uniformed force take no oath of office, and are not officers in any' sense of that term, and, though required to pass a physical inspection, do not undergo a civil service examination, and are treated by the law as laborers rather than officials. If it were otherwise, it is difficult to see how discipline could be enforced. I

McClosky is charged with striking a horse with a heavy whip, and with being at work without the prescribed uniform and badge ; and McNulty’s offence is that he drove at a high rate of speed a team of horses attached to a heavy truck loaded with steel cans. Bach of these matters constitutes a breach of discipline, and charges having been made to the commissioner by other officials of the department, the commissioner, by virtue of the authority vested in him by law, inquired into the accusations, and, the evidence being satisfactory to him, he summarily discharged the offenders. This he had a legal right to do. Hence, the relators were legally discharged, and have no cause for reinstatement.

The applications for writs of mandamus must, therefore, be denied, without costs.