Page images
PDF
EPUB

a way that each district would nevertheless contain one of the persons so appointed. It is also suggested by the learned counsel for the defendant that if the district physicians were appointed as claimed by the relator, it would be in the power of the common council at any time to change the boundaries of the districts in such a manner as to remove from office any of the district physicians appointed by the mayor. If the district physicians were appointed as claimed by the defendant it would be equally in the power of the common council to change the boundaries of the district at any time so as to leave a portion of the territory of the city unprovided with a district physician. The charter assumes that the city will be divided into districts, and as the number of physicians is limited to six the number of districts cannot exceed six and comply with the provisions of the charter. The six districts actually exist at the present time. It is impossible to provide for the several districts and have more than one physician reside in a district. Taking the position of the defendant I do not see how the appointment of the district physicians could be complete until the district for which the persons appointed were to be assigned, has been determined upon. The appointment of district physicians, without reference to the existing districts, would lead to great confusion. The construction given to the charter by the common council in dividing the city into districts, and providing rules and regulations for the conduct of the district physicians and the construction given to the charter and ordinances of the common council by the mayor and other city officer avoids trouble and confusion in regard to appointments and carries out the apparent spirit and intention of the charter itself.

On the 7th day of February, 1896, Mayor Thacher appointed district physicians as provided by the charter and the ordinances, and such appointments were made by certificate of which the following is a copy:

CITY OF ALBANY, MAYOR'S OFFICE
ALBANY, February 7, 1896

To the Honorable the Common Council

Gentlemen: Pursuant to the provisions of section 21, title 4, chapter 298, of the laws of 1883, I hereby designate and assign the following physicians in and for the districts set opposite their respective names:

First district.-Frederick D. Morrill, 74 Westerlo street.
Second district.-Mark S. Leavy, 217 Madison avenue.
Third district.-O. C. Alexander, 3 Second avenue.

Fourth district.-Charles L. Myers, 47 North Swan street.
Fifth district. James M. Moore, 7 Congress street.
Sixth district.-W. P. Brierly, 228 Central avenue.

Yours,

JOHN BOYD THACHER

Mayor

This certificate was duly filed with the clerk of the common council, and was presented to the common council at its next meeting and printed in its journal. Mr. Moore, the relator in this action, and the person so appointed fifth district physician, took an oath of office and entered upon the discharge of his duties. The oath of office taken by Mr. Moore was similar to the oath of office taken by the district physicians of the city and of which oath the following is a copy:

[merged small][merged small][ocr errors]

I do solemnly swear that I will support the constitution of the United States and the constitution of the state of New York and that I will faithfully discharge the duties of the office of district physician of the fifth district, according to the best of my ability. JAMES M. MOORE

Sworn to before me this 7th

day of February, 1896

JOHN BOYD THACHER, Mayor

By the city charter as well as by the public officers law all officers shall continue in office until their successors have been duly appointed and qualified.

On the 19th day of January, 1898, Thomas J. Van Alstyne, then mayor of the city of Albany, by certificate substantially in form as the certificate made by Mayor Thacher, which I have quoted, designated and assigned physicians to the several districts. set opposite their names, including among which was "fifth district, Judson H. Lipes." Said Lipes was given a certificate of appointment, of which the following is a copy:

STATE OF NEW YORK

CITY AND COUNTY OF ALBANY, CITY CLERK'S OFFICE This is to certify that Judson H. Lipes, M. D., was duly appointed district physician for the fifth district of the city of Albany, by his honor Thomas J. Van Alstyne, Mayor, on January 19, 1898.

[L. S.]

Dated January 20, 1898

HENRY A. MALOY

City Clerk, City of Albany, N. Y.

It thereafter appeared that Dr. Lipes was not a resident of the fifth district, consequently ineligible to the position of fifth district physician. He never took the oath of office as fifth district physician, and does not claim to be entitled to such office. By the same certificate appointing Judson H. Lipes as fifth district physician, the defendant in this action, Mark S. Leavy, was appointed third district physician. The defendant took his oath of office as the third district physician. Thereafter and on the 2d day of February, 1898, Mayor Van Alstyne directed a letter to Dr. Leavy, the defendant in this action, Dr. Myers, who had by such certificate been appointed fourth district physician, and Dr. Lipes, who had by such certificate been appointed fifth district physician, of which letter the following is a copy:

ALBANY, February 2, 1898

MARK S. LEAVY, CHARLES L. MYERS, JUDSON H. LIPES

Gentlemen: You will severally take notice that by virtue of the authority in me vested by law, I do hereby transfer you and each of you as district physicians from the respective districts heretofore designated and do transfer and appoint you the said Mark S. Leavy to district No. 5, and you, the said Charles L. Myers to district No. 3, and you, the said Judson H. Lipes to district No. 4. You will take due notice thereof and perform the duties of district physician in the respective district hereby assigned you.

Respectfully

[merged small][ocr errors][ocr errors][merged small]

No other appointment of Dr. Leavy as fifth district physician was ever made, filed with the clerk of the common council or printed in its journal, and Dr. Leavy never took an oath of office. as fifth district physician.

As I have stated above, this question should be determined by the answer to be given to the question as to whether the district physicians mentioned in the charter are to be appointed generally by the mayor and assigned by him from time to time to different sections of the city or whether they are independent officers to be appointed by the mayor for a particular district. designated in the appointment. I think such question should be answered in favor of the relator and to the effect that the district physicians are independent officers inseparably connected with the district for which they are appointed, and the relator is entitled to judgment, as asked for in his complaint, with costs, and a decision and judgment may be prepared accordingly.

Judgment for relator, with costs.

LOUIS W. MILLER, Respondent, v. GEORGE E. WARNER and JAMES D. CASEY, Individually and as Police Commissioners of the City of Rochester, Appellants, Impleaded with CHARLES T. CHAPIN, Individually and as Police Commissioner of the City of Rochester.

(Supreme Court, Appellate Division, Fourth Department, June, 1899. 42 App. Div. Rep., 208)

AN EQUITABLE ACTION TO PREVENT THE DISCHARGE OF AN EMPLOYEE OF A CITY IS NOT MAINTAINABLE AN ELECTRIC OPERATOR IS NOT A PUBLIC OFFICER.— An electrical operator of the police telegraph system of the city of Rochester, given the title of "superintendent" of the police telegraph system in and for the city of Rochester, by a resolution of the police board of that city adopted at a time when there was no statute creating, or authorizing the creation of, such an office, is not a public officer, but a mere employee of the city, and cannot maintain an equitable action to restrain the police commissioners of the city from discharging him before the expiration of his term of service.

Appeal by the defendants, George E. Warner and another, individually and as police commissioners of the city of Rochester, from an order of the supreme court, made at the Monroe special term and entered in the office of the clerk of the count of Monroe on the 5th day of April, 1899, denying their motion to vacate a temporary injunction theretofore granted in the action.

Thomas Raines, for the appellants.

Charles J. Bissell, for the respondent.

Follett, J.: This action was begun February 1, 1899, by the service of a summons, complaint and injunction order restraining defendants from interfering with the plaintiff in the performance of his duties as superintendent of the police telegraph system of the city of Rochester, and from removing him as such superintendent, or preferring or hearing charges against him. It is alleged in the complaint, and admitted in the answer, "that the above-named plaintiff, in or about the month of February, 1898, was duly appointed the superintendent of the police telegraph system in and for the city of Rochester, and is now acting as such". But it is not alleged in the complaint or averred in plaintiff's affidavit by what board or body he was appointed, or for what time; but it is averred in the affidavits of the answer

« PreviousContinue »