Report of the State Civil Service Commission Volume 16 - Tapa blanda

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1899 Excerpt: ... for they alone have the power to reinstate him. It may be that the provisions of the code fail to point out the precise practice that should, be adopted by the relator in this case. But there is no apparent reason why the provisions of the code controlling actions and special proceedings against county, town and municipal officers, should not apply as well to state officers. The practice therein provided for is simple and affords ample protection to all parties. Section 1930 provides "In such an action or special proceeding, the court must, in a proper case, substitute a successor in office, in place of a person made a party in his official capacity, who has died or ceased to hold office; but such a successor shall not be substituted as a defendant, without his consent, unless at least fourteen days notice of the application for the substitution has bfeen personally served upon him." As we have seen, no substitution has been made in this case. The order of the appellate division should be reversed, and that of the special term affirmed. Vann, J.: I am of the opinion that a writ of mandamus cannot be issued against either the Governor or lieutenant-governor, because the imprisonment of either, which might follow a failure to obey the writ, would disturb the constitutional balance of power between the three great departments of government. As to the Governor, this is obvious, but the same reason applies to the lieutenant governor also, because at any moment by the death, resignation, inability or absence of the Governor the powers and duties of the office devolve upon the lieutenant governor. Whatever would interfere with his freedom of action when it became his duty to act as governor would interfere with the executive office itself, and might lea...