Kraus v. Singstad

• Decision Date: 13 July 1937
• Citation: 275 N.Y. 302,9 N.E.2d 938
• Parties: KRAUS et al. v. SINGSTAD et al. (BENNETT, Atty. Gen., Intervener).
• Court: New York Court of Appeals Court of Appeals

275 N.Y. 302

9 N.E.2d 938

KRAUS et al.

v.SINGSTAD et al. (BENNETT, Atty. Gen., Intervener).

Court of Appeals of New York.

July 13, 1937.

Mandamus proceeding by Sarah M. Kraus, individually, and as president of Social Investigator Eligibles Association and for the members thereof similarily situated, against Ole Singstad and others, constituting the Emergency Relief Bureau, and another, wherein John J. Bennett, Jr., Attorney General of the State of New York, intervened. From an order of the Appellate Division (250 App.Div. 384, 294 N.Y.S. 688), which reversed an order of the Special Term, the defendants and intervener appeal.

Modified and affirmed.

LEHMAN and LOUGHRAN, JJ., dissenting. Appeal from Supreme Court, Appellate Division, First Department.

Paul Windels, Corp. Counsel (Paxton Blair, Jeremiah M. Evarts, and Robert H. Schaffer, all of New York City, of counsel), for appellants.

John J. Bennett, Jr., Atty. Gen. (Henry Epstein, of Albany, of counsel), for intervener appellant.

Albert De Roode and H. Eliot Kaplan, both of New York City, for respondents.

CRANE, Chief Judge.

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, Ex.Sess., entitled, ‘An act to relieve the people of the state from the hardships and suffering 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 ‘TERA.’ 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.’ (section 13, Unconsol.Laws, § 2464).

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 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 (Consol.Laws, c. 7), upwards of the 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 40 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 Social Investigator Eligibles Ass'n v. Taylor, 268 N.Y. 233, 197 N.E. 262, 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 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 believe that the functions of the Constitution and of the municipal civil service authorities had been abrogated.

The Constitution (art. 5, § 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, 46 N.E. 857,37 L.R.A. 809, 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, 294 N.Y.S. 688, 690.

Mr. Justice Shientag, in the Aversa Case, 164 Misc. 162, 298 N.Y.S. 618, 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.’

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 Ottinger v. State Civil Service Comm., 240 N.Y. 435, 148 N.E. 627.Section 359-a of the General Business Law (Consol.Laws, c. 20), which provided that the Attorney General might in his discretion, and without civil service examination, appoint and 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.’ 240 N.Y. 435, at...