¶1While concurring generally with Mr. Justice Hatch, I prefer to place my concurrence in the decision upon the ground that in this proceeding the court was without authority to review the action of the fire commissioner in temporarily suspending from duty the chief of the department. The petitioner asked for a peremptory writ of mandamus requiring the commissioner to rescind and vacate an order suspending him, the chief of the tire department, from the duties of his office as such chief. The court granted a mandamus *193commanding the fire commissioner “ forthwith to reinstate the said Edward F. Croker in the office of chief of department and to the command of the uniformed force of the fire department of the city of New York, and in the duties, rights and privileges of the said office,” and further to do each and every act and thing necessary to that end. The order of the fire commissioner does not remove the petitioner from his office. It is that the “Chief of Department, Edward F. Croker, is hereby relieved from command of the uniformed force, to take effect on the receipt of this order.” The petitioner continued in office, and when reassigned to duty by the commissioner will be charged with the performance of its duties. The petitioner alleges that on the 2d day of August, 1902, he was granted a leave of absence for sixty days, and, acting upon this leave of absence, departed from the city and relinquished his command of the uniformed force in the department. He returned to New York on the eighteenth day of August and resumed command of the uniformed force, and on the nineteenth day of August the commissioner requested him to continue his vacation during the period for which his leave of absence had been granted. With this request of the commissioner he declined to comply, stating that he had voluntarily abandoned the unexpired term of the leave of absence and was ready, willing and prepared to continue in the exercise of the duties of his office; whereupon the commissioner issued the order to which attention has been called.
¶2Unless the petitioner had a clear legal right to discharge the duties of his office at the time the proceeding was instituted, I think the application was improperly granted. That the defendant had the power to give the petitioner a leave of absence of sixty days was not disputed. It is not stated whether this leave of absence was at the request of the petitioner, but it is alleged by him that he was given such a leave of absence and accepted it presumably because the vacation was proper and necessary. Having been thus granted a leave of absence for a specified period by the act of the commissioner, which, it is conceded, he had power to grant, I cannot see that it is the exercise of any other or greater power to say that the officer thus relieved from duty for a period of sixty days should not, during that period, resume the discharge of his *194duties. If the health or continued efficiency in the discharge of his duties required that that the petitioner should have a vacation for sixty days, and that during that period he should be relieved from the performance of his duties, the court cannot say that it was not necessary or proper for the commissioner to require the officer to relinquish his command for that period. If the relator had become mentally or physically disabled from performing the duties of the department, I do not think it would be disputed but that the commissioner would have the power, under the provisions of the charter, to suspend the officer from the active performance of his duties during the period necessary for his recovery; and if he had such power the question as to its exercise involves a question of discretion which the court could not review upon an application for a man-damns. If the commissioner should attempt to turn this suspension into a removal, or make it permanent, it would then be time for the relator to apply for the relief; but nothing of that kind is alleged.
¶3By section 727 of the charter, the fire commissioner is authorized to organize the fire department into such bureaus as may be convenient and necessary for the performance of the duties imposed upon him. One of those bureaus was to be charged with the duty of preventing and extinguishing fires and of protecting property from water used at fires, the principal officer of which was to be called the chief of the department. Section 724 provides that the fire commissioner shall possess and exercise freely and exclusively all powers and perform all duties for the government, management, maintenance and direction of the fire department of the city, and the department was given sole and exclusive power and authority to extinguish fires in such city. There was distinctly imposed upon the commissioner the government, management, maintenance and direction of the department and the ’ duty to extinguish fires in the city. By section 728 of the charter, the fire commissioner was authorized to select the heads of the several bureaus who were required to perform such duties as should be assigned to them by him. That the commissioner could make no promotion in the department except upon the recommendation of the chief, did not any the less make the chief a subordinate of the commissioner appointed for the purpose of performing the duties imposed upon the department for the prevention and extinguishment of fires ; and *195if in the opinion of the commissioner a respite from work was essential for the efficient performance of that duty by the chief, it seems to me that the commissioner had full power to insist upon the chief’s taking such a vacation as would enable him to properly perform the duties imposed upon him.
¶4I, therefore, think that the commissioner had the power to insist that the relator should not return to duty until the expiration of the period which had been given to him for a vacation, and that the court below was not justified in reviewing this discretion vested in the commissioner. It is for this reason that I think the order appealed from should be reversed.
¶5I cannot concur in the opinion adopted by the majority of the court in this case. While the powers which are conferred upon the fire commissioner are referred to at length, those parts of the statute, although quoted, which compel the exercise of these governmental powers in a particular way, are given no force or effect whatever.
¶6We are told that it is provided by section 724 of the charter: “ The fire commissioner shall possess and exercise fully and exclusively all powers and perform all duties for the government, management, maintenance and direction of the fire department of the city and the premises and property thereof; ” and that section 726 provides that “ The fire commissioner shall possess and exercise full and exclusive power and discretion for the government, management, maintenance and direction of the several buildings and premises,” etc.
¶7The terms used in this section undoubtedly gave the fire commissioner unlimited power in the organization, management, maintenance and direction of his department. These unlimited powers are, however, by the next two sections directed to be exercised in a particular way. Section 727 provides that “ The fire commissioner shall have power to organize the fire department into such bureaus as may be convenient and necessary for the performance of the duties imposed upon him.” In this language there is a clear assumption that it will be necessary for the fire commissioner, in his organization of the fire department, to form bureaus through which the *196work of the department is to be done. Up to this point there is no limitation upon the number of bureaus or the duties to be assigned to each. The next paragraph of the section under consideration, however, expressly limits and regulates this general power of organization. The next paragraph expressly provides for the formation of at least one bureau which shall have certain duties assigned to it and a principal officer. The paragraph reads as follows: “ One bureau shall be charged with the duty of preventing and extinguishing fires and of protecting property from water used at fires, the principal officer of which shall be called the ‘ Chief of Department.’ ” This office is, therefore, just as much a creation of the charter as the office of the fire commissioner itself. The fire commissioner must, therefore, so organize his department that there shall be one bureau in it whose duty it shall be to deal with fires. He must so organize it that there shall be a principal officer in it. That is, an officer who shall, not only in name, but in fact, be its head. These provisions are a clear limitation upon the general powers which had theretofore been conferred in the charter upon the commissioner. Ho matter what else he could do, he had to organize this bureau, make in it a principal officer who should not only in name but in fact be its head. In this same section the organization of other bureaus to which certain duties shall be assigned are provided for. If the commissioner has the absolute and unrestricted power claimed for him by the prevailing opinion, he had the right to ignore entirely these provisions of the statute. He might organize as he pleased, or not, the bureaus there provided for. He might make an entirely different distribution of work and duties. Or he might organize these bureaus, but omit to create the office of “ Principal Officer ” as in the statute provided. If the powers of the fire commissioner are as unlimited as the prevailing opinion assumes, the fire commissioner could ignore all these provisions. It is clear that he could not. He was bound by them. He could have been compelled to obey these provisions of the law, namely, to organize a department to deal with fires, and make provision for an officer who should be the actual head of the bureau.
¶8How, if he could have been compelled so to organize his bureaus, how is it possible for him, after having organized such bureau and having provided for such principal officer and having fixed his *197duties consistent with the requirements of the charter, to arbitrarily, against the will of such principal officer, deprive him of the right to exercise the duties which the statute has conferred upon him ? It is said that this can be done under the unlimited powers conferred upon the commissioner for the government of his department. But he has no such absolute power of government. His powers are expressly limited, and the “ Chief of Department ” —• an office established by the very charter from which the commissioner derives his office—has his duties to perform. The duties of the ‘f Chief of Department” are just as much statutory as those of the commissioner. He has the same vested right in their performance as the commissioner himself has.
¶9If there was any doubt about this proposition, it is set at rest by the language of the next section: “ § 728. The fire commissioner shall have power to select heads of bureaus'and assistants, and as many officers and firemen as may be necessary, and they shall at all times be under the control of the fire commissioner, and shall perform such duties as may be assigned to them by him, under such names or titles as he may confer.” This last clause seems to show conclusively that it was not intended to apply to the heads of bureaus provided for in the preceding section. The commissioner by that section was required to call the heads of those bureaus by certain names — not “such names or titles as he may confer.” Again, this latter section provides that the persons selected under it “ shall perform such duties as may be assigned to them by him.” This clearly cannot apply to the heads of bureaus referred to in the previous section, as to them can only be assigned duties which are consistent with the position of principal officer. The head of these bureaus is to be, not only in name, but in fact, the principal officer in the bureau. This is what the statute says, and which provision is entirely swallowed up in the prevailing opinion by the stress laid upon the general powers conferred upon the commissioner.
¶10That it was the intention of the statute that the commissioner should not have the absolute control as to what duties should be performed by the heads of bureaus created by the statute seems to be further apparent by the succeeding language of section 728, which is as follows: “ Provided, however, that assignments to duty and *198promotions in the uniformed force shall be made by the fire commissioner upon the recommendation of the chief of department, and in case any recommendation so made by the chief shall be rejected he shall, within three days, submit another name or names, and continue so to do until the assignment or promotion is made.”
¶11What, in view of this provision, becomes of the claim of absolute control of the fire commissioner in the management of his department % He cannot assign to duty or promote a man in the uniformed force except upon the recommendation of this very chief of department that he claims the right to suspend from duty whenever he chooses. I say, suspend from duty intentionally; it is true that the commissioner talks about relief from' duty, but I can see no difference in the terms. The commissioner can no more relieve than he can suspend.
¶12It seems to me clear that the chief of department is as much a statutory officer as the commissioner himself; that the commissioner must so organize his department that this chief of department shall be the principal officer in one of the bureaus which he is obliged to organize in his department; and that there are explicit duties which the statute calls upon him to perform, which the commissioner cannot take away from him.
¶13If the statute means anything, then the chief of department is beyond the whim of the commissioner, and he can be disciplined only in the method provided for in the statute.
¶14O’Bbiem, J., concurred.
¶15.. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.