and a conclusion or determination by the dismissing officer arrived at without a judicial hearing cannot be reviewed by certiorari1. Accordingly, it cannot be used to review a removal where the accused was merely entitled to an opportunity for explanation2. The only cases, therefore, where certiorari can be used to obtain. reinstatement are those where a trial is required as in the case of veterans, volunteer firemen, policemen3 and firemen and where the right has been given by statute as in the case of veterans and members of the street cleaning department. The fact that a trial was given to the subordinate by the removing officer does not entitle him to a writ of certiorari unless the right to a trial was given by law. Accordingly certiorari does not lie to review a removal which could have been made at pleasure but was made. after a trial.

Granting of an order of reinstatement of a policeman cannot be made conditional on his waiver of back salary'.

Note

In regard to power to allow an amendment or require an additional return see C. C. P. secs. 2134, 2135. Peo. ex rel. Campbell v. Hannan, 56 Hun. 469 (1890) Peo. ex rel. Grogan v. York, 51 A. D. 502 (1900) Peo. ex rel. Campbell v. Partridge, 99 A. D. 410 (1904) Peo. ex rel. Meehan v. Greene, 103 A. D. 393 (1905) Peo. ex rel. Moynihan v. McAdoo, 112 A. D. 32 (1906) Peo. ex rel. Parker v. Bingham, 57 Misc. 28 (1907) As to costs see Peo. ex rel. Shiels v. Greene, 114 A. D. 168 (1906) Effect of unanimous affirmance by the App. Div. Peo. ex rel. Stephenson v. Bingham, 205 N. Y. 168 (1912)

Mandamus

Mandamus cannot review the exercise of official discretions,

"The office of this writ is confined to the review of the judicial proceedings of inferior bodies. If there has been no judicial proceeding and none attempted, the writ will not lie. If there has been no judicial determination, no subject for such a determination, how can there be a review?" Peo. ex rel. Howe v. Conway, 59 A. D. 329, 330 (1901)

2 Peo. ex rel. Ryan v. Wells, 176 N. Y. 462 (1903)

Peo. ex rel. Hanrahan v. McAdoo, 110 A. D. 894 (1905)

As these latter employees have no right to a judicial trial or hearing it is hard to see why they were ever given the right to certiorari, or how they are to avail themselves of it. C. C. P. sec. 2120. Mandamus is equally efficacious and is the more appropriate proceeding. Peo. ex rel. Lahey v. Woodbury, 112 A. D. 79 (1906)

Peo. ex rel. Purcell v. Simonson, 66 A. D. 18 (1901) Peo. ex rel. Scheel v. Guilfoyle, 65 A. D. 498 (1901) (Davis), N. Y. L. J. Aug. 10, 1915

Peo. ex rel. Baran v. Waldo, 162 A. D. 345 (1914)

rel. Snyder v. Partridge, 83 A. D. 262 (1903)

8 Matter of Donovan v. Cantor, 89 A. D. 50 (1903)

Matter of Moore

See contra Peo. ex

but is used to enforce the performance of some clear official duty'. It is applicable where the dismissing officer is under the plain duty of reinstating a subordinate who has been illegally removed. Accordingly, it is used where the subordinate was merely entitled to an opportunity for explanation, or was entitled to a trial but received none, or possibly where he was dismissed for political reasons2.

In such an action if all material facts are admitted the court can at once pass upon the questions of law involved and issue the final order, called the peremptory writ, but when the facts are in dispute they must be determined at a hearing in which evidence may be introduced and this hearing is had on what is known as an alternative writ. When no issue of fact will arise notice is given to the defendant that on a day named application will be made for a final or peremptory writ and this writ may be issued as soon as the questions of law are decided. When questions of fact arise, an alternative writ is obtained requiring the defendant to make the reinstatement or to join issue upon the facts alleged by the relator. The facts are then determined by a court or jury and upon the determination the final or peremptory writ may issue3.

Mandamus may be brought even though the position is held by a de facto incumbent, and this incumbent need not be made a party in the usual case of reinstatement but only where the relator seeks appointment to another and similar position or possibly where for some other reasons the matter will not be decided by a mere determination that relator's removal was wrongful. If the legality of the removal is the only question to be determined the de facto incumbent is not a necessary party.

1 Peo. ex rel. Harris v. Commissioners, 149 N. Y. 26, 31 (1896)

2 But see Peo. ex rel. Garvey v. Prendergast, 148 A. D. 129 (1911) Peo. ex rel. Somerville v. Williams, 155 Supp. 653 (1915)

3 C. C. P. secs. 2067 to 2102

"While it may be that the present incumbent could be made a party as interested in the result of this proceeding, his presence is not at all essential to a complete determination of the question at issue between the relator and the defendant, the appointing officer. In this case the relator was duly appointed and in office. If his removal was illegal, he has never been deprived of his office, and this application (mandamus) is to enforce his right to continue in the office from which he was illegally removed. The person appointed in his place, if he was illegally removed, has no right to the office and never had a right to it. If the relator's contention is correct he still holds the position and is entitled to its emoluments, and this proceeding is to enforce that right. With the validity of the appointment of the person who has taken his place, he has no concern." Peo. ex rel. Michales v. Ahearn, 111 A. D. 741, 743 (1906)

Note

On a motion for a writ of peremptory mandamus the averments of the opposing affidavits will be taken to be true. Peo. ex rel. Linnekin v. Ennis, 18 A. D. 412 (1897) Peo. ex rel. Croft v. Keating, 49 A. D. 123 (1900) Peo. ex rel. Pumpyansky v. Keating, 168 N. Y. 390 (1901). An alternative writ should issue to determine a contested question of fact. Matter of McDonald, 34 A. D. 512 (1898) Alternative writ must show that the relator comes within the class entitled to protection. Peo. ex rel. Fogarty v. Cassidy, 118 A. D. 693 (1907) Special term cannot weigh the conflicting affidavits nor disregard the issue raised as a sham. Peo. ex rel. Frank

lin v. Fetherston, 168 A. D. 416 (1915) If entitled to an alternative writ the relator cannot be made to waive his back salary as a condition to its being granted. Peo. ex rel. Collins v. Ahearn, 139 A. D. 88 (1910). It is doubtful whether Special Term may prescribe that only certain of the issues raised should be tried on the alternative writ. Peo. ex rel. Miller v. Sturgis, 82 A. D. 580 (1903). The findings of the jury on questions tried on the alternative writ are conclusive upon the court at Special Term. Peo. ex rel. Coveny v. Kearny, 44 A. D. 449 (1899). Errors arising in the course of the trial may be reviewed on appeal from the order directing the peremptory writ. No extra allowance can be granted. Peo. ex rel. Boyd v. Hertle, 46 A. D. 505 (1900). The verdict cannot be reviewed upon appeal where there was no motion for a new trial. Peo. ex rel. Jennings v. Johnson, 161 A. D. 625 (1914). Only the court at Special Term which granted the alternative writ can order an amendment; the Trial Term has no such power. Peo. ex rel. McDonald v. Clausen, 50 A. D. 286 (1900). Allegations of misconduct prior to removal but not contained in the charges can be stricken out of the answer to the alternative writ. Peo. ex rel. Collins v. Ahearn, 133 A. D. 52 (1909) affd. 196 N. Y. 572. An inquest taken during a vacancy in the office of a removing officer is a nullity. Peo. ex rel. Collins v. Ahearn, 137 A. D. 260 (1910). Mandamus against an officer does not abate by his resignation, removal or expiration of term but may be enforced against his successor after substitution is made. Peo. ex rel. LaChicotte v. Best, 187 N. Y. 1 (1907). Mandamus against a continuing board does not abate on the expiration of the term of one of its members. Peo. ex rel. Lazarus v. Coleman, 99 A. D. 88 (1904). The officer against whom the writ is directed has no power to appeal after he has been removed from office; substitution must be made before an appeal can be taken. Peo. ex rel. Walker v. Ahearn, 200 N. Y. 146 (1910). The city cannot be substituted in place of the appointing office

who has been removed. Peo. ex rel. Collins v. Ahearn, 137 A. D. 265 (1910). Mandamus dismissed because relator had refused to answer questions regarding the claim that he was a veteran. Peo. ex rel. Storey v. Butler, 124 A. D. 148 (1908). Where damages cannot be assessed in mandamus proceedings. Peo. ex rel. Walker v. Ahearn, 139 A. D. 88 (1910). Discontinuance "without prejudice to a new proceeding" Peo. ex rel. Morgan v. Bingham, 115 A. D. 474 (1906). Determination on trial of alternative writ as res adjudicata. Finigan v. Board of Education, 153 A. D. 429 (1912) New trial granted because of exclusion of material evidence of "political reasons". Peo. ex rel. Ambrose v. Tompkins, 208 N. Y. 353 (1913) Peo. ex rel. Goldschmidt v. Travis, 167 A. D. 475 (1915) Res judicata; allegation of bad faith. Reynolds v. Williams, N. Y. L. J. Nov. 11, 1914.

Quo Warranto

The old writ of quo warranto has been abolished' but the code of civil procedure gives a somewhat similar right of action against a person who unlawfully holds a public office2. As a remedy for reinstatement it can be used only where there is an incumbent actually holding and claiming a public office under color of right. A public office, within the meaning of the code, is apparently a definite position created either by the constitution or by legislative act the duties of which are fixed by law and exercised by the incumbent independently of control by a superior".

Quo warranto can be brought only by the attorney general and he has discretion as to whether he will institute it. His refusal is not reviewable. The writ enables the people to preserve control over public offices and so prevent usurpation of them in violation of the spirit of their institutions. It is used in the interest of the people at large, generally where the office is elec

1 C. C. P. sec. 1983

2 C. C. P. sec. 1948

Nichols v. MacLean, 101 N. Y. 526 (1896) Peo. ex rel. Coveny v. Kearny, 44 A. D. 449 (1899)

4 Peo. ex rel. Drake v. Sutton, 88 Hun. 173 (1895) Peo. ex rel. Coveny v. Kearny, 44 A. D. 449 (1899)

5 See page 6 for discussion of officer. Confusion has sometimes resulted from failure to distinguish between the different applications which have been made of the term "public office". The meaning of the word "officer" often depends upon the context. Many positions which the courts have designated as public offices under particular statutes would not be such within the meaning of the code section.

6 Peo. ex rel. Demarest v. Fairchild, 67 N. Y. 334 (1876) Matter of Gardner, 68 N. Y. 467 (1877)

tive1 or where the incumbent is in office under color of right, and there is a serious question of law to be determined2, and is not adapted, either by its procedure or its purpose, to be a remedy in the ordinary cases of reinstatement where the only question to be determined is as to the legality of the removal and the only rights and interests involved are those of the individuals claiming the position.

There are but very few public offices in the city service within the meaning of section 1948 of the code which are not either filled by election or expressly exempted from the restriction on removal. It seems that certiorari and mandamus would extend to any removal of a veteran from office. Under these circumstances it is not very likely that any question as to the nature of the remedy will arise. If it does arise it seems possible that the courts would hold that quo warranto need not be the exclusive remedy, and that mandamus or certiorari could be used where the only question to be determined is the validity of the removal3. The adoption of civil service laws has given a new aspect to the situation, by emphasizing the right of the individual. This right if it is to be substantial should be certain, speedy, convenient and inexpensive. In the ordinary case quo warranto is uncertain, cumbersome and inconvenient.

To reconcile all the language used in the cases is difficult and perhaps impossible, but it seems that most of the remarks to the effect that quo warranto is the exclusive remedy for reinstatement to an office where there is an incumbent are merely dicta. There seems to be no authority requiring the adoption of such a rule. In view of the uncertainty as to what constitutes a public office it seems that when the question is squarely presented the courts will not sanction a rule which is undesirable in its results and not required even by technical rules of law5.

Quo warranto may be used to oust an officer who has been illegally appointed in preference to a veteran whose name was on

1 Peo. ex rel. Benton v. Vail, 20 Wend. 12 (1838) ex rel. Lewis v. Brush, 146 N. Y. 60 (1895)

Matter of Gardner, Peo.

2 Peo. ex rel. Wren v. Goetting, 133 N. Y. 569 (1892) Peo. ex rel. Hoyt v. Trustees, 19 A. D. 567, 571 (1897)

3 Peo. ex rel. Mayor v. Nichols, 79 N. Y. 582 (1880)

4 Peo. ex rel. Laughlin v. Police Commissioners, 174 N. Y. 450 (1903)

5 See Peo. ex rel. Meyers v. Dillon, 46 A. D. 187 (1899) affd. 161 N. Y. 646 and High on Extraordinary Legal Remedies, sec. 67