July Term, 1901.
Daniel Noble, for the relator.
William J. Carr, for the respondents.
Under section 7 of chapter 232 of the laws of 1890 as amended by chapter 122 of the laws of 1894, the fire commissioners of Long Island City had the power to select and appoint a chief engineer and as many foremen, engineers, drivers and firemen as might be necessary, the same to be at all times under the control of said commissioners and to perform such duties as might be imposed upon them by the said commissioners. They were also given the power to make rules and regulations for their government, to impose such reasonable fines and forfeitures upon said employees for violation of the same as the said commissioners might deem proper, and for incapacity, neglect of duty or misconduct to remove them and appoint others in their places.
No condition or form preliminary to removal is prescribed to vest in the commissioners the power of removal, and the right to a writ of certiorari is not given or authorized by the statute.
It appears from the return herein that the relator, an engineer in the fire department of Long Island City, was removed by the commissioners for incapacity, and the principal question presented relates to the authority of this court to review the determination of the commissioners. The writ of certiorari to review the action of public officers can only issue where the right to the writ is expressly conferred or authorized by the statute, or where the writ issued at common law. (Code, § 2120.)
The common-law certiorari is in the nature of an appeal from the determination of inferior tribunals and officers exercising under the law judicial functions, and there is no authority sanctioning its use for any other purposes. ( People ex rel. Trustees of the Village of Jamaica v. Board of Supervisors, 131 N.Y. 468.)
In People ex rel. Kennedy v. Brady ( 166 N.Y. 44) it was held that the official act of a commissioner or other officer in removing a subordinate under the authority of a statute which makes no provision for a trial or judicial hearing, is not a judicial act, and that this court has no power to review the merits of a case upon the facts where all the preliminaries in the statute have been complied with. In that case the question was whether the commissioners of the department of buildings in the city of New York had the right to remove a messenger under the provisions of chapter 186 of the Laws of 1898, which provides that if a person holding a position subject to competitive examination in the civil service of the State or of a city shall be removed or reduced, the reason therefor shall be stated in writing and filed with the head of the department or other appointing officer, and the person so removed or reduced shall have an opportunity to make an explanation. The court there said: "The head of the department, if the explanations are not satisfactory to him, may, in his discretion, remove without calling witnesses to substantiate the charges or allowing testimony on the part of the subordinate. He may exercise the power of removal upon facts within his own knowledge or based upon information received from others. The reasons assigned for the removal must appear, upon their face, to justify the action; in other words, they must be substantial and not frivolous, but when they appear to be sufficient to justify the determination the courts have no power to interfere on the ground that the reasons, though good in themselves, had no existence as matter of fact, or that the explanation given by the subordinate should have satisfied the head of the department. In other words, the sufficiency of the relator's explanation was a question for the commissioners alone to determine, and the courts have no power to interfere with his discretion in that regard," and cited People ex rel. Munday v. Board of Fire Commissioners ( 72 N.Y. 445); People ex rel. Sims v. Board of Fire Commissioners (73 id. 440); People ex rel. Keech v. Thompson ( 94 N.Y. 451).
The law on this subject was laid down in the case of People ex rel. Keech v. Thompson ( 94 N.Y. 451), where the question was whether the commissioners of public works had the right to remove the relator without a trial, and the court said: "There is nothing in the statute which requires that the cause of removal shall be established by proof taken before the commissioner. * * * No testimony is required to be taken as to the basis of the commissioner's action; it is enough that he assigns a sufficient cause for the removal and furnishes an opportunity to the relator for explanation of the same. * * * If the commissioner was to be constituted a court for the purpose of trying every charge which might properly be preferred for violation of duty, it would tend very much to embarrass the action of that officer and also interfere with the interest of the public. If a trial was to be had the law, no doubt, would have so provided. * * * In cases where the legislature intended that the removal should not be made without cause proven, provision is made for the preferring of charges, and an examination of the same."
In view of these decisions the case of People ex rel. Hughes v. Sandford (89 Hun, 605) is not an authority for the proposition that the court can institute an inquiry with respect to the truth of the charges, or as to the existence as matter of fact of the ground stated for removal. In that case the power of the court to review the action of the defendants in removing the relator was not questioned. Each party assumed that the relator was entitled to a trial, and that the determination of the commissioners was subject to review.
Our conclusion, therefore, is that the writ of certiorari should be dismissed, with ten dollars costs and disbursements.
Writ of certiorari dismissed, with ten dollars costs and disbursements.