People ex rel. Hillman v. Scholer , 87 N.Y.S. 1122 ( 1904 )

Ingraham, J.:

The relator claims that his removal by the defendants was illegal and brings this proceeding to compel the defendants to reinstate him. Prior to the adoption of the charter of the city of New York (Laws of 1897; chap. 378, §§ 1570, 1571) office, of coroner had always been a county office, and recognized as such in the State Constitutions prior to that adopted in 1894. (See Const. [1777] §§ 23, 26; Const. [1821] art. 4, §§ 8, 11; Const. [1846] art. 10, § 1.) Section 1 of article 10 of the Constitution of 1846 provides that sheriffs, clerks of counties, including the register and clerk of the city and county of New York, coroners and district attorneys shall be chosen by the electors of the respective counties once in every three years, and as often as vacancies shall happen. Under this provision of the Constitution of 1846, section 1766 of the Consolidation Act (Laws of 1882, chap. 410) provided that four coroners should thereafter be elected in the city and county of New York in the same manner and at the same general election as sheriffs, and should hold their offices for the same term and be removable in the same manner. Upon the adoption of the Constitution of 1894, section 1 of article 10 was amended by dropping coroners therefrom, leaving that office under the control of the Legislature. The County Law (Laws of 1892, chap. 686, § 180, subd. 1, as amd. by Laws of 1898, chap. 334) regulates the election of coroners in all counties of the State, except the county of New York, as by section 1 of that act it was provided that the act should .not apply to the county of New York. Section 1608 of the charter of 1897 (Laws of 1897, chap. 378) repealed the Consolidation Act, so far as the provisions thereof were, inconsistent with the provisions of the charter, or so far as the subject-matter thereof is revised or included in the charter and no further. Section 1570 of the said charter provided as follows: “ Four coroners shall hereafter be elected in the borough of Manhattan, two in the borough of The Bronx, two in the borough of Brooklyn, three in the borough of Queens and two in the borough of Richmond. They shall be elected in the same manner and at the same general elections as are the sheriffs in the several counties in which'such boroughs are situated, shall hold their respective offices for the term of four years and shall, be removable in the same manner as sherifís.” The charter thus having provided for the election of coroners in the city of New York, as borough officers, the provision of section 1766 of the Consolidation Act for the election of coroners for the city and county of New York was repealed, the election of coroners thereafter was regulated by section 1570 of the charter of the city of New York, and such coroners were thereafter to be elected as borough officers instead of county officers.

The question of the election of coroners under this provision of the charter was presented to the Appellate Division, in the second department in the case of People ex rel. Burger v. Blair (21 App. Div. 213; affd. on opinion below, 154 N. Y. 734). It was held that the borough coroners are city officers, and their.salaries and the expenses of their offices are charged on the entire city alike; that the salaries and expenses of county coroners are county charges and charged only upon the counties for which they are elected; and although in the opinion when discussing the election or appointment of coroners, it is said: “ While the office is no longer a constitutional one, still it falls within section 2 of article 10 of the Constitution, which directs that all county officers shall be appointed by the board of supervisors or other county authorities, as the Legislature shall direct; ” and that under this provision the Governor would have no power to appoint a coroner if a vacancy was created in the office by the Legislature; still, it was expressly decided that the coroners were borough officers, elected under section 1570 of'the charter of the city of New York, and not county officers, and considering the provisions of the Constitution and the charter there is no escape from that conclusion.

Assuming, therefore, that the coroners are, under the charter of 1897, borough officers of the city of New York, elected under its provisions, the further question is presented as to whether section 1543 of the charter applied to clerks appointed by the coroners. Section 118 of the charter provides that the mayor shall appoint the heads of all departments and all commissioners, except as otherwise provided in the act. Section 96 provides that there shall be eighteen administrative departments in the said city, among which cor- . oners are not included. By subsequent sections these various departments and the duties that are imposed upon their heads are specified; and then, by section 1543, it is provided as follows: “ The heads of all departments (except as otherwise specially provided) shall have power to appoint and remove all chiefs of bureaus (except the chamberlain) as also all clerks, officers, employes and subordinates in their respective departments, except as herein otherwise specially provided, without reference to the tenure of office of any existing appointee. But no regular clerk or head of a bureau shall be removed until he has been allowed an opportunity of making an explanation; and in every case of a removal, the true grounds thereof shall be forthwith entered upon the records of the department or board.” Provision is then made by said section by which the head of the department shall have the power, subject to revision by the board of estimate and apportionment, to fix the salaries of all officers, clerks, employees and subordinates in his department, whether before fixed by special law or otherwise. After the provisions applying to departments of the city government, there follow special provisions in relation to the appointment and regulation of other officers. Title 8 of chapter 22 of the charter of 1897 related to coroners. These provisions were continued in the charter of 1901 (Laws of 1901, chap. 466) as sections 1670 and 1571 of that act. Section 1571 provides that “ the coroners in each borough shall have an office in said borough and shall appoint a clerk who shall receive an annual salary to be fixed by the board of estimate and apportionment and the board of aldermen, and such and - so many assistant clerks as shall be provided for in the annual budget.” The relator was appointed on the 1st day of January, 1902, chief clerk in the office of the coroners of the borough of Manhattan, city of New York, under this section of the charter and was removed and dismissed on November 15, 1902.

I do not think that section 1543 of the charter has any application to clerks or other officers, except those in the regular city departments. The administrative departments of the city government are specified in the charter. (See § 96.) The head of each department is appointed by the mayor. (§ 118.) The duties of the heads and officers in the departments are regulated, 'and they become corporate officers to perform the duties imposed upon the municipal corporation. By section 1543 of the charter the heads of the departments are given the power to appoint and remove all chiefs of bureaus, except the chamberlain, and also all clerks, officers, employees and subordinates in their respective departments. It is quite clear that this provision would not apply to the subordinates of coroners, and in connection with this power of appointment which applies only to the regular city departments there is the provision which restricts the power of the head of a department to remove the head of a burean, or regular clerk, except as therein provided. It seems to me that this restriction must apply to the clerks of a department mentioned in the former portion of the section in which a power of appointment is given; The right of coroners to appoint a chief clerk is not derived from this section, but depends upon a subsequent section. (§ 1571.) ' While the coroners are elected as provided for by section 1570 of the charter (as amd. supra), they perform no duty which is imposed upon the municipal corporation. They have no power given to them as officers of the corporation, but perform a duty which would come under the general class of those appertaining to the administration of the , county affairs rather than a duty devolving upon a municipal corporation. Their duties are not prescribed in the charter, nor do they get their power to act from its provisions, and while .the charter provides for their election, they are not officers performing a duty imposed upon the municipality. In the case of People ex rel. Maharin v. Plimley (1 App. Div. 458) we held that the commissioner of jurors, though appointed by the mayor under section 106 of the Consolidation Act (Laws of 1882, chap. 410), was not the head of a department under section 48 of that act, and, therefore, that section 48, which contains substantially the same provision as is contained in section 1543 of the charter, upon which the relator relies, was not applicable to a clerk in the office of the commissioner of jurors, and there is no substantial difference between the question there presented and the question presented in this case.

As there appear to be no other restrictions as to the power of the coroners to remove the relator, except that contained in section 1543 of the charter, and as that section does not apply, we can see no reason why the defendants had not authority to remove the relator without assigning any reason, or without giving the relator an opportunity to be heard; and it follows that the final order granting the peremptory mandamus must.be reversed, and the proceeding dismissed, with costs.

Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred.

Order reversed and proceeding dismissed, with costs.