Matter of Kraus v. Singstad

Crane, Ch. J. In 1931 the Legislature of this State undertook to provide a means of support for the unemployed and those in want. It passed an act, chapter 798 of the Laws of 1931, entitled, “ An act to relieve the people of the state from the hardships and suffering *305 caused by unemployment, * * * ” creating a temporary emergency relief administration. It was passed solely for an emergency in unemployment which was defined as the period between the 1st day of November, 1931, and the 1st day of June, 1932. Section 28 of the act read: “ The administration shall be dissolved and cease to function at the time fixed by this act. * * The fact is it did not cease and is still continuing to function, with thousands of employees who have never taken any civil service examination. This administration has been popularized, as is the modern fashion, by the name “ TER A.” Local bureaus were defined as temporary emergency work relief bureaus created in cities and counties. The administration agency consisted of three persons appointed by the Governor to serve during his pleasure. Each city of the State was constituted a separate public welfare district. The Mayor of the city was to establish the public welfare district in the city. These local bureaus are to be responsible for the administration of work relief, and may employ necessary clerks and assistants whose compensation shall be fixed by the officer or governing board by which such bureau is created. All these local bureaus are subject to the supervision and direction of the State administration. The legislative body of the municipal corporations shall raise the money for the work of relief and for the expenses. The act also provides for the investigation of home relief. “ In a city public welfare district the city commissioner shall investigate all cases of home relief ” (§ 13). Special attention must be given to section 19 of the act which is brought into prominence here by reason of the civil service question involved: “ § 19. Employees of city and county commissioners. The administration may authorize city and county commissioners to employ such additional clerical and other assistants or volunteers, with qualifications satisfactory *306 to the administration, who shall not be subject to the provisions of the civil service law, as may be necessary for the administration of home relief in accordance with the rules of the administration and shall determine the number of such additional clerks and assistants and fix their salaries, which shall be paid from the money hereby appropriated. There shall be paid also from the moneys hereby appropriated fifty per centum of the salary of persons in the employment of the emergency work bureau in the administration of work relief approved by the administration whose work is concerned with the registration or investigation of applications for work or the clerical work of the bureau when such salaries have been approved and such work authorized by the administration.” In 1933 the Legislature passed an amendatory act known as chapter 259 of the Laws of 1933, which created the emergency relief bureau of from three to five persons appointed by the Mayor in place of the local bureaus. Otherwise the law of 1931 continued substantially the same. Under this authority for appointing all clerks and assistants and administrative workers without any regard to the Civil Service Law (Cons. Laws, ch. 7), upwards of one thousand persons were employed in the position of investigators or social investigators, positions which could easily have been filled by competent civil service examinations, as is conceded. It is stipulated between counsel that forty per cent of this force were not needy persons eligible and entitled to be on the status of recipients of work for home relief. In Matter of Social Investigator Eligibles Assn. v. Taylor (268 N. Y. 233) this court held that, those who are given employment in these local bureaus as a bounty needed to sustain life, that is, those who are given work and wages as emergency relief, come within the direct purposes and object of the law, and were not subject to civil service rules and regulations. These relief laws were not passed for the purpose of *307 giving work to those, such as investigators, clerks and stenographers and the like, who were not in need of relief. We have therefore, the concession, or the fact, that at least four hundred social investigators were employed by the Emergency Relief Bureau without having been taken from any civil service list or having passed any civil service examination, although there was such a list in existence in 1932. It is also stated, beyond contradiction, that there are clerks, stenographers, typists, telephone operators who have been employed through all these years without any civil service examination and who are still in the employ of these emergency bureaus. No emergency existed regarding these employees nor the social investigators, and it is now conceded, as it must be, that it is practicable and always has been, to have and conduct competitive examinations for such places. Nowhere is it claimed that there have not been plenty of applicants willing to take and pass such examinations. Since 1931, or for a period of five years or more, these clerks, typewriters, telephone operators, social investigators have been employed at city and State expense, without any consideration being given whatever to the Civil Service Law or the demands of the State Constitution — and all this done under the plea of emergency which never existed regarding employees who did not need relief. At the go-off in the establishment of the relief bureaus it might have been necessary to gather clerks, operators and employees where no lists were in existence for such places, but no claim is made by any one, and in fact I do not see how it could be, that it was not thereafter practicable within a reasonable time, say six months, to establish lists for all these places after competitive examinations. To say that it would have been impossible because of any emergency to hold examinations at any time during the last five years, and in the face of so much unemployment, invites one to *308 believe that the functions of the Constitution and of the municipal civil service authorities had been abrogated. The Constitution (Art. Y, § 6) reads: “Appointments and promotions in the civil service of the State, and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive; * * *. Laws shall be made to provide for the enforcement of this section.” This court said in Chittenden v. Wurster (152 N. Y. 345) that if the Legislature failed to make laws to enforce this constitutional provision the duty rested upon the courts to see that it was carried out. The Appellate Division, in its opinion in this case, said: “The positions of social investigators, clerks, telephone operators, stenographers and typists are all positions for which competitive examinations have for years been held, and proven eminently practicable.” (250 App. Div. 384, 386.) Mr. Justice Shientag, in the Aversa case (decided herewith), reviewing this situation, said: “ To permit the Legislature or a civil service commission to exempt positions by blanket enactment, irrespective of the practicability of competitive selection would be striking a vital blow at the entire merit system of the State and would tend to undermine the very foundations of the civil service so firmly embedded in state policy as to be safeguarded by our fundamental law against invasion.” (164 Misc. Rep. 162, 166.) I agree with both these statements. Whatever liberality was allowable in the filling of these positions in 1931 to enable the local bureaus to function does not justify the continuance from year to year, under the guise of emergency, of the employment of thousands in violation of this civil service principle and constitutional mandate. This has been tried before in Matter of Ottinger v. Civil Service Comm. (240 N. Y. 435). Section 359-a of the General Business Law (Cons. Laws, ch. 20), which provided that the Attorney-General might in his discretion, and without civil service examination, appoint and *309 employ and at his pleasure remove such deputies, officers and other persons as he deems necessary to aid in the enforcement of article 23-A of that law, was held unconstitutional as violative of the civil service provision. This court said: “No such sweeping exemption within the limits of the administrative departments of the government has ever been proclaimed since the Constitution set bounds to the discretion of the Legislature in the formation of the civil service ” (p. 443). On or about December 8, 1932, there was promulgated by the Municipal Civil Service Commission of the city of New York, as the result of competitive examination conducted by it, an eligible list of those passing an examination for social investigator. These seven petitioners, headed by the above named Sarah M. Kraus, are on this list, and it has been stipulated by counsel that if the Civil Service Law applies to these positions, then these seven petitioners are entitled to be appointed, although their list has expired; also by stipulation they waive all back salary and pay. The purpose of this stipulation no doubt has been this: to give to these petitioners those places which they would have had, had the Civil Service Law functioned. The Corporation Counsel has been very just and fair with them in entering into such a stipulation, especially as the whole staff of positions has now been, or may be placed under civil service, in accordance with the following enactments: Chapter 822 of the Laws of 1936 amended section 19 of chapter 798 of the Laws of 1931 so as to read as follows: “ * * * No person employed pursuant to this act, during the emergency period, shall-be subject to the provisions of the civil service law except that any local emergency relief bureau or other local relief authority may, with the approval of the administration or of the department succeeding to its functions, appoint its employees in accordance with the civil service law and rules from eligible lists established as a result of civil service examinations held subsequent to the time this *310 section as hereby amended takes effect, in the grading of which due credit shall be given for experience with the local emergency relief bureaus or other local relief authorities.” By chapter 358 of the Laws of 1937, approved May 17, 1937, the emergency relief bureaus established under chapter 798 of the Laws of 1931, as amended, shall terminate on June 30, 1937. Persons employed in cities, to which the provisions of the Civil Service Law and rules have been extended, shall hold temporary positions in the competitive class of the civil service until appointment shall be made from civil service eligible lists. After July 1, 1937, the Commissioner of Public Welfare of each city shall determine what number of positions for the administration of home relief shall be established as permanent positions and what number as temporary positions. Appointments to permanent and temporary positions shall be made from eligible lists established by competitive examinations. Eligible lists established by civil service examinations heretofore held shall be valid only if the examination was held pursuant to the provisions of section 19 of chapter 798 of the Laws of 1931, as amended. The qualifications for examinations held prior to July 1, 1938, shall be subject to the approval of the State Department of Social Welfare in consultation with the Civil Service Commission; and any person employed for a period of not less than three months, between July 1, 1936, and June 30, 1937, in an equivalent position in a public welfare department or an emergency relief bureau, established under chapter 798 of the Laws of 1931, as amended, shall,be deemed eligible for admission to the examination. In the grading of such examinations a higher rating shall be given for experience in administration of home relief gained as an employee in an equivalent position in a public welfare department or emergency relief bureau than for experience gained in any other department or agency, public or private. The-policy of the State was declared to be that civil service *311 should apply to all these positions, and that those continued should only hold temporarily until appointments could be made from eligible lists. We, therefore, see that if these seven petitioners are given the places to which they should have been appointed heretofore, having passed the civil service examination, they may be continued in the new Department of Public Welfare. No reason is apparent why these seven social investigators who passed the regular civil service examination for such a position should not have been taken by the relief bureaus in place and instead of those who had passed no examination, and it is in accordance with the spirit and the words of our Constitution and Civil Service Law and in the maintenance of their due administration that these seven related appointees should have the privilege of continuance in the permanent service. Whether or not the civil service examinations for these permanent appointments can be made subject to the approval of the Department of Social Welfare, as provided in this law of 1937, is not here for discussion as we are merely dealing with the qualifications, in this case, of the seven petitioners. The order of the Appellate Division is modified so as to confine its operations solely to the petitioners in this case who are the only applicants before the court. The stipulation of the Corporation Counsel and of the attorney for the petitioners states that if the positions of social investigator are in the civil service and competitive class, then these seven petitioners should have heretofore been certified from the eligible list of social investigator and would have teen appointed. These petitioners, therefore, under this stipulation, should receive the position which they would have received if the law as we have stated it had been followed. A peremptory mandamus should issue directing that these seven applicants be given the position of social investigator as described in this opinion, and if necessary seven others who had not passed the civil service examination must *312 be removed to make places for these petitioners. Also by stipulation these seven petitioners are not to receive any back pay. The order of the Appellate Division should be modified in accordance with this opinion and as so modified affirmed, without costs.