Opinion
November 15, 1910.
Albert C. Olp, for the appellant.
Andrew E. Tuck and Edward R. O'Malley, Attorney-General, for the respondent.
The relator, an honorably discharged soldier of the Civil War, was appointed a laborer in the department of the State Engineer and Surveyor for the western division for the improvement of highways on the 18th day of February, 1907. He was employed in the department from that time until December 16, 1907, when he was discharged; reinstated on June 8, 1908, and on the 31st day of August, 1908, was finally discharged for the reason that the funds of the department were exhausted. The proceedings herein were commenced on February 26, 1909.
That, if true, would seem to be a complete justification for his discharge. He was appointed for no stated term, and State officers are forbidden to contract any indebtedness on behalf of the State in excess of money appropriated or otherwise lawfully available therefor. (State Finance Law [Gen. Laws, chap. 10; Laws of 1897, chap. 413], § 35, added by Laws of 1899, chap. 580; revised in State Finance Law [Consol. Laws, chap. 56; Laws of 1909, chap. 58], § 35.)
It appears, however, that from the time of his discharge to the present there have been other laborers employed in the Division Engineer's office of the western division, but when they were appointed or the precise nature of their work is not disclosed.
The department for the improvement of highways, to which the relator was originally appointed, is not now under the State Engineer and Surveyor, but under the control of the State Commission of Highways. (Highway Law [Consol. Laws, chap. 25; Laws of 1909, chap. 30], art. 2.) The funds were transferred from his control to that of the commission on February 17, 1909, and he now has not the disposition of the funds.
The precise place to which the relator desires to be appointed is that of axeman, but he seems willing to take a transfer to some other position at the same salary. It appears that during his last employment he worked in the Highway Department, in the Canal Department and in the office of the Division Engineer, performing whatever labor he was directed to perform, which included some of the duties usually performed by axemen. It does not precisely appear what work the relator did, how much of it was in the Highway Department, how much in the Canal Department or how much was office work, nor just how much of that kind of work is left under the control of the State Engineer and Surveyor and what part has been transferred to the State Commission of Highways.
While the relator is entitled to preference in the civil service of the State (Const. art. 5, § 9; Civil Service Law [Gen. Laws, chap. 3; Laws of 1899, chap. 370], § 20, as amd. by Laws of 1902, chap. 270; revised in Civil Service Law [Consol. Laws, chap, 7; Laws of 1909, chap. 15], § 21), even to the extent of being transferred to any position which he may be fitted to fill, if his former position has been abolished or made unnecessary, and the duty is imposed upon the officer having the appointing power to make such transfer effective (Civil Service Law [Gen. Laws, chap. 3; Laws of 1899, chap. 370], § 21, as amd. by Laws of 1904, chap. 697; revised in Civil Service Law [Consol. Laws, chap. 7; Laws of 1909, chap. 15], § 22, since amd. by Laws of 1910, chap. 264), the record is entirely silent as to whether any such place is open. The evidence is not returned. We have only the findings of the referee and the affidavits upon which the writ was issued and in the absence of any showing that there is a vacancy in some position or work for which the relator is fitted, he is not entitled to the writ directing his reinstatement in the State Engineer and Surveyor's department. It is incumbent upon the relator to show that there is such a vacancy. ( Matter of Breckenridge, 160 N.Y. 103; People ex rel. Chappel v. Lindenthal, 173 id. 528.) The appointing officer is not required to discharge other competent employees to make room for the relator.
The order denying the peremptory writ of mandamus should be affirmed, but under the circumstances, without costs.
All concurred.
Order affirmed, without costs.