Opinion
December, 1895.
Louis J. Grant, for relator.
Francis M. Scott ( Terence Farley, of counsel), for respondents.
This matter comes before us on a writ of certiorari duly issued, and we are asked to review the determination of the respondents, composing the board of dock commissioners of the dock department of the city of New York, whereby they adjudged the relator to be guilty of neglect of duty, and discharged him from the service of the department.
It appears from the return to the writ, which must be taken as conclusive and acted upon as true ( People ex rel. Sims v. Fire Commissioners, 73 N.Y. 439), that the relator was a roundsman in the employ of the department of docks at the time of his discharge. The status of the relator was not such as entitled him to a trial or an opportunity to be heard. The relator is in error in assuming that such a right belonged to him; it only exists where expressly conferred by the statute. The power to appoint the relator was conferred in general terms, and carried with it the power of removal at the discretion and will of the appointing power. With respect to the tenure or duration of a public employment, such as the relator had at the time of his dismissal, the general rule is that where the power of appointment is conferred in general terms and without restriction, the power of removal, in the discretion and at the will of the appointing power, is implied and always exists, unless restrained and limited by some other provision of law. People ex rel. Sims v. Fire Commissioners, 73 N.Y. 437; Bergen v. Powell, 94 id. 591; Ex parte Hennen, 13 Pet. 239; Laimbeer v. Mayor, etc., 4 Sandf. 109; People ex rel. Keech v. Thompson, 94 N.Y. 451; People ex rel. Moore v. Mayor, etc., 5 Barb. 43. This general rule was embodied in the Constitution of this state in the following language: "When the duration of any office is not provided by this Constitution it may be declared by law, and if not so declared such office shall be held during the pleasure of the authority making the appointment." Art. 10, § 3; People ex rel. Cline v. Robb, 126 N.Y. 180.
Section 718 of the Consolidation Act provides in part as follows: "The board of dock commissioners shall appoint a secretary and such subordinate officers, clerks and agents as shall be necessary to assist said board in the performance of its duties and the exercise of its powers." By section 48 of the Consolidation Act the heads of all departments have the power of appointing and removing at pleasure all chiefs of bureaus and all clerks in their respective departments, unless such officers are protected from removal at pleasure by the following limiting clause contained in said section, to wit: "But no regular clerk or head of a bureau shall be removed until he has been informed of the cause of the proposed removal, and has been allowed an opportunity of making an explanation."
The relator is not head of a bureau, nor is he a regular clerk. The statute, by distinguishing between these two classes of officials and other clerks, officers, employees and subordinates, necessarily leaves those not thus named and expressly excepted from the operation of the general powers subject to removal at the pleasure of the board. This follows from the familiar rule of interpretation of the statute, expressio unius est exclusio alterius. The power to remove at pleasure is conferred in general terms, and but two classes of all the officers and employees are excepted from its operation and given the benefit of a hearing and subjected to a removal only for cause. People ex rel. Cummings v. Koch, 2 N.Y. St. Repr. 110; Jackson v. Mayor, 87 Hun, 296; People ex rel. Sims v. Fire Commissioners, 73 N.Y. 439.
The relator has not asserted the rights accorded under the Veteran Laws, and, therefore, does not come within their provisions. Matter of Shay, 15 N.Y.S. 488; People ex rel. Murphy v. Howell, 37 N.Y. St. Repr. 181; People ex rel. Sullivan v. Waring, N.Y.J.L., Nov. 7, 1895.
The writ of certiorari should be quashed and the proceedings dismissed, with fifty dollars costs and disbursements.
FREEDMAN and McADAM, JJ., concur.
Certiorari quashed and proceedings dismissed, with fifty dollars costs and disbursements.