Chirillo v. Lehman

• Decision Date: 21 December 1940
• Parties: CHIRILLO et al. v. LEHMAN, Governor, et al.
• Court: U.S. District Court — Southern District of New York

38 F. Supp. 65

CHIRILLO et al. v. LEHMAN, Governor, et al.

District Court, S. D. New York.

December 21, 1940.

Morris Shapiro, of New York City (Harry Katz, of New York City, on the brief), for plaintiffs.

John J. Bennett, Jr., Atty. Gen. (Henry Epstein, Sol. Gen., and John F. X. McGohey, Nathaniel Fensterstock, and Clarence M. Maloney, Asst. Attys. Gen., of counsel), for defendants Lehman and Bennett.

William A. Davidson, Co. Atty., of Port Chester, N. Y., for defendants Casey and Taylor.

Osmond K. Fraenkel, of New York City, amicus curiae for American Civil Liberties Union.

Elliott L. Biskind, Herbert D. David, and Louis Eisenstein, all of New York City, amicus curiae for New York City Chapter of National Lawyers Guild.

Before SWAN, Circuit Judge, and HULBERT and MANDELBAUM, District Judges.

SWAN, Circuit Judge.

This is a suit in equity to restrain, on constitutional grounds, enforcement against the plaintiffs of section 71 of the Public Welfare Law of the state of New York, Consol.Laws, c. 42. This section, which is printed in the margin,¹ provides for the compulsory removal of any person who is cared for at the expense of any public welfare district if he "belongs to" another state and if, in the judgment of the state department of social welfare, his removal to such state will promote his welfare and the interests of the state of New York. The plaintiffs are Mr. and Mrs. Chirillo. Rosario Chirillo, the husband, is a naturalized citizen of the United States, having been naturalized at Wooster, Ohio, in 1926. In January, 1939, he and his family removed from their home in that city to the town of Mamaroneck in Westchester County, New York, with the intention of taking up permanent residence there. By trade Mr. Chirillo is a cobbler, and he attempted to set up a shoe repair business in Mamaroneck. On September 5, 1939, he was obliged to apply for public relief, and during the succeeding four months he received such relief from the commissioner of public welfare of Westchester County, in instalments totaling $116.60. In consequence thereof and pursuant to provisions of section 71 of the Public Welfare Law, proceedings were instituted in December, 1939, by said commissioner which resulted in the issuance of an order by the judge of the County Court of Westchester County directing the sheriff of said county to remove the plaintiffs and their minor children to the city of Wooster, Ohio. The purpose of the present suit is to prevent the execution of this order. The defendants are George A. Casey, sheriff of the county of Westchester, Ruth Taylor, commissioner of public welfare of the county of Westchester, upon whose application the order of the County Court was obtained, Herbert H. Lehman, Governor of the state, and John J. Bennett, Jr., Attorney General of the state, the two last-named defendants having been brought in because of the requirement of notice to them, as provided in section 266 of the Judicial Code, 28 U.S. C.A. § 380.

On the plaintiffs' application for an interlocutory injunction Judge Mandelbaum, to whom the application was made, issued a temporary stay and convened a three-judge court pursuant to said section 266. The case is before us on complaint, answer, and supporting and opposing affidavits. There is no dispute in the facts. In addition to those already stated, it appears that the plaintiffs appeared and answered in the County Court proceedings, claiming that the granting of the application would deprive them of their rights under the Constitution of the United States; and that from the order of the County Court they took a direct appeal to the Court of Appeals of the state of New York, under the provisions of section 588 (3) of the Civil Practice Act, upon the sole issue of the constitutional validity of section 71 of the Public Welfare Law. This appeal was dismissed by the Court of Appeals in July, 1940, without determination by said court of the constitutionality of the statute. Matter of Chirillo, 283 N.Y. 417, 28 N.E.2d 895. A motion by the plaintiffs for a reargument was denied on October 8, 1940. It was then too late for the plaintiffs to obtain a review of the order of the County Court by appealing to the Appellate Division. A motion for leave to reargue the question of construction of section 71 was denied by the judge of the County Court on November 8, 1940. Thereupon the plaintiffs filed their complaint in this court.

The complaint sets out the foregoing facts and alleges that the order of the County Court of Westchester County directing the removal of the plaintiffs and their minor children from the town of Mamaroneck to the city of Wooster is in full force and effect and the plaintiffs are subject to such removal without further notice. It alleges also that the enforcement of this order, which is threatened, will cause the plaintiffs irreparable damage for which they have no adequate relief at law, and it charges that enforcement of said order of removal will violate the due process clause and the equal protection clause of the Fourteenth Amendment, will abridge the privileges and immunities guaranteed to the plaintiffs as citizens of a state (Article IV, section 2) and of the United States (Fourteenth...