Blaikie v. Lindsay

• Decision Date: 24 March 1966
• Citation: 268 N.Y.S.2d 356,49 Misc.2d 612
• Parties: Robert B. BLAIKIE, on Behalf of himself and all other citizens, residents, and taxpayers of the City of New York similarly situated, Plaintiff, v. John V. LINDSAY, individually, and as Mayor of the City of New York, Mario A. Proccacino, individually, and as Controller of the City of New York, and Joseph E. O'Grady, individually and as Chairman of the New York City Transit Authority, and John J. Gilhooley, Daniel Scannell, individually, and as constituted members of the New York City Transit Authority, and Solomon Hoberman, individually, and as Acting Chairman of the Civil Service Commission of the City of New York, and Arthur M. Mauriello and George Gregory, Jr., individually, and as members of the Civil Service Commission of the City of New York, Defendants.
• Court: New York Supreme Court

Page 356

268 N.Y.S.2d 356

49 Misc.2d 612

Robert B. BLAIKIE, on Behalf of himself and all other citizens, residents, and taxpayers of the City of New York similarly situated, Plaintiff, v. John V. LINDSAY, individually, and as Mayor of the City of New York, Mario A. Proccacino, individually, and as Controller of the City of New York, and Joseph E. O'Grady individually and as Chairman of the New York City Transit Authority, and John J. Gilhooley, Daniel Scannell individually, and as constituted members of the New York City Transit Authority, and Solomon Hoberman, individually and as Acting Chairman of the Civil Service Commission of the City of New York, and Arthur M. Mauriello and George Gregory, Jr., individually, and as members of the Civil Service Commission of the City of New York, Defendants.

Supreme Court, Special Term, New York County, Part I.

March 24, 1966.

H. Leonard King, New York City, for plaintiff.

Sidney Brandes, Brooklyn (Helen R. Cassidy and James P. McMahon, Brooklyn, of counsel), for defendant New York City Transit Authority and members individually.

Louis J. Lefkowitz, Atty. Gen. (Samuel A. Hirshowitz and Robert E. Hugh, New York City, of counsel), for proposed intervenor.

J. Lee Rankin, Corp. Counsel of City of New York (Frederic S. Nathan and John F. Kelly, New York City, of counsel), for Messrs. Lindsay, Proccacino, Hoberman, Mauriello and Gregory, officially and individually.

O'Donnell & Schwartz, New York City (John F. O'Donnell, New York City, of counsel), for proposed intervenors, TWU and Local 100.

Robert C. La Borde, Jr., New York City, for amicus curiae Independent Bar Ass'n.

Pressman & Scribner, New York City (David Scribner, New York City, of counsel), for amicus curiae, 110 Licensed Ferry Officers.

WILLIAM C. HECHT, Jr., Justice.

The Condon-Wadlin Law (Civil Service Law, § 108) provides that no person holding a position by appointment or employment in the government of the city or any of its political subdivisions, or of a municipality, or in the public school service, 'or in the service of any authority, commission, or board' 'shall strike' (subd. 2). A person violating the provisions of the section may be employed or reemployed. However, 'his compensation shall in no event exceed that received by him immediately prior to the time of such violation,' and (presumably) 'shall not be increased until after the expiration of three years from such * * * employment or re-employment' (subd. 5). (See Weinstein v. New York City Tr. Auth., 49 Misc.2d 170, 267 N.Y.S.2d 111.)

Any taxpayer shall have standing to institute an action in the Supreme Court to declare illegal or restrain payment of salary or compensation in violation of any provision of the Civil Service Law and to recover sums illegally paid from appointing and fiscal officials (§ 102, subds. 1 and 2).

As is well known, the recent transit strike was settled on the basis of paying increases to the employees of the New York City Transit Authority, who had gone out on strike. One Weinstein brought on a proceeding, pursuant to the above statutes, to enjoin as illegal the offering or paying by the Authority and the Municipal Civil Service Commission to the strikers of any amount in excess of their compensation in effect prior to the strike on January 1, 1966, for at least three years after resumption of their employment. In a learned and comprehensive opinion, Mr. Justice Saypol overruled the objections of respondents in points of law, saying: 'While the case for relief for petitioners is clear, summary judgment may not be granted before answer,' and gave respondents 10 days in which to answer. (Weinstein v. New York City Tr. Auth., supra, p. 184, 267 N.Y.S.2d p. 125.)

Thereupon, the Legislature enacted Chapter 6 of the Laws of 1966, which was signed by the Governor on February 16, 1966. The law reads as follows:

'Section 1. Declaration and findings. The legislature hereby finds that there is imminent danger of a renewal of the transit strike in the city of New York; that a transit strike in January nineteen hundred sixty-six brought human suffering and severe economic hardships to many and inconvenience to all; that such strike was a tragedy affecting the lives and livelihood, the safety and well-being of sixteen million people in the world's greatest metropolitan area, and a repetition would be disastrous and intolerable; that such strike was settled after twelve days of chaos, on the basis of the report of a mediation panel requested by the mayor of the city of New York; that the parties accepted in good faith the terms contained in such report and the transit workers returned to their jobs; that the present critical situation arises out of a serious question raised in the courts as to the legal capacity of the New York city transit authority and the Manhattan and Bronx surface transit operating authority to approve the terms of the agreement which settled the recent catastrophic strike; that the provisions of this act are necessary in order to protect the health, safety and welfare of the sixteen million people of the New York city metropolitan region against another transit strike and to authorize the approval of the agreement which settled the strike in January.

' § 2. Notwithstanding any other provisions of law to the contrary the New York city transit authority and Manhattan and Bronx surface transit operating authority are hereby authorized and empowered to continue in employment their hourly-rated operating employees, in the same status as such employees held on December thirty-first, nineteen hundred sixty-five and to pay them the increased compensation contained in the report of a certain mediation panel appointed by the mayor of the city of New York, pursuant to which the employees resumed their duties in the operations of their respective transit facilities.

' § 3. This act shall take effect immediately.'

The present proceedings is brought by Blaikie as 'a resident, voter and taxpayer in and of the City and State of New York for the past fifty-nine years,' 'on behalf of himself as a citizen, resident and taxpayer, and other persons similarly situated.' It asks for judgment (a) declaring Chapter 6 of the Laws of 1966 unconstitutional as in violation of Art. 1, Sec. 11 and Art. 3, Sec. 17 of the State Constitution, and the equal protection clause of the Fourteenth Amendment to the Constitution of the United States; (b) enjoining the New York City Transit Authority, the Manhattan and Bronx Surface Transit Operating Authority, the Mayor and Comptroller of the City, and the Municipal Civil Service Commission, from continuing in the employ of the two authorities the employees who participated in the strike, and enjoining defendants from granting any increases in pay or any other benefits or emoluments to the same employees. A similar proceeding was brought by one Maidman, alleging himself to be a taxpayer of the City.

Defendants have moved to dismiss the complaint. That motion is joined by the Attorney General, who intervened in support of the constitutionality of the statute, and by the Unions representing the transit employees.

110 licensed ferry officers, who have been subject to the penalties imposed by the Condon-Wadlin Law, have moved that, if the Court sustains the argument of unconstitutionality, the appropriate procedure is to enter a judgment declaring the entire § 108 of the Civil Service Law to be unconstitutional. This contention may be summarily disposed of. If Chapter 6 of the Laws of 1966 be found to be unconstitutional, the only course open to the Court is to so declare, without affecting the Condon-Wadlin Law itself. The constitutionality of that law can no longer be questioned. New York City Tr. Auth. v. Loos, 2 Misc.2d 733, 154 N.Y.S.2d 209 (Lupiano, J.), affd. 3 A.D.2d 740, 161 N.Y.S.2d 564; Pruzan v. Bd. of Educ. of City of New York, 25 Misc.2d 945, 209 N.Y.S.2d 966 (Markowitz, J.), affd. 12 A.D.2d 923, 215 N.Y.S.2d 718, affd. 9 N.Y.2d 911, 217 N.Y.S.2d 86, 176 N.E.2d 96.

Article 1, Sec. 11, of the New York Constitution provides: 'No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his civil rights * * * by the state or any agency or subdivision of the state.' The Fourteenth Amendment to the Federal Constitution provides (sec. 1): 'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States * * * nor deny to any person within its jurisdiction the equal protection of the laws.'

It is obvious that such discrimination as may exist, by virtue of the enactment of Chapter 6 of the Laws of 1966, is not predicated on 'race, color, creed or religion.' The effect of it simply is that employees of the New York City Transit Authority and of Manhattan and Bronx Surface Transit Operating Authority are exempt from the penalties which apply to other public employees. These other employees are not deprived of their privileges and immunities as citizens by the penalties of the Condon-Wadlin Law, merely by virtue of the fact that those penalties are not applied uniformly to all public employees.

The problem comes down to whether the Legislature might reasonably make this distinction between transit employees and all other public employees. If there is any reasonable basis on which the Legislature could make such a distinction, it is not for the court to question the wisdom or fairness of their action.

The cases on this subject are many and unequivocal. A few of the more important ones will be discussed.

In Williamson v. Lee Optical of Okl., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563, the Court upheld an Oklahoma statute which made it unlawful for any person not a licensed optometrist or ophthalmologist to fit lenses to a face or to duplicate or replace into frames, lenses or other...