MATTER OF POWERS v. Taylor

• Decision Date: 09 March 1955
• Citation: 207 Misc. 465
• Parties: In the Matter of John F. Powers, Petitioner,<BR>v.<BR>Oscar M. Taylor et al., Constituting The Civil Service Commission of the State of New York, et al., Respondents.
• Court: New York Supreme Court

207 Misc. 465

In the Matter of John F. Powers, Petitioner,

v.Oscar M. Taylor et al., Constituting The Civil Service Commission of the State of New York, et al., Respondents.

March 9, 1955.

De Graff, Foy, Conway & Holt-Harris for petitioner.

Nathaniel L. Goldstein, Attorney-General (Henry S. Manley of counsel), for respondents.

BOOKSTEIN, J.

This is an article 78 proceeding in the nature of mandamus to direct the State Civil Service Commission to classify the position of referee established under the Workmen's Compensation Law, in the competitive civil service of the State of New York. Section 150 of the Workmen's Compensation Law, as amended by chapter 526 of the Laws of 1950, provides that such referees shall be in the exempt class of the classified civil service and petitioner's contention is that such enactment violates section 6 of Article V of the State Constitution providing that "Appointments * * * in the civil service of the state * * * shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive".

Respondents move to dismiss the petition for discretionary reasons and also as a matter of law on the ground that the petition fails to state facts which entitle the petitioner to the relief sought or any relief.

This is not an action for a declaratory judgment, even though, to grant petitioner's prayer for relief, necessarily, there would have to be a declaration of the unconstitutionality of the law under attack, as a prerequisite.

The right of petitioner to maintain this proceeding is squarely established by the decision in Matter of Andresen v. Rice (277 N.Y. 271). Petitioner is not relegated to the taxpayer's action provided for in section 28 of the Civil Service Law. The action therein provided for is one for a violation of the Civil Service Law itself. This is a proceeding to compel public officers to perform a duty allegedly required by constitutional mandate.

The description of petitioner as an officer of the Civil Service Employees' Association is mere surplusage and neither adds to nor detracts from the efficacy of the petition.

Petitioner contends that it is practicable to test the merits of compensation referees by competitive examination and, that by this motion, the allegations of the petition are admitted. That contention is sound as to factual allegations but not as to conclusory ones. "The allegations of fact are deemed to be true insofar as relevant or material upon any questions upon which a court may pass * * * but not conclusions of law". (Matter of Hines v. State Board of Parole, 293 N.Y. 254, 258.)

It is true that "the Legislature cannot act arbitrarily and exempt places from competitive examination at will. The duties must have some relationship to the exemption and the classification must be reasonable." (Matter of Friedman v. Finegan, 268 N.Y. 93, 98.)

It is also true, as stated by the court, in commenting upon the officers comprised in the unclassified civil service, in Matter of Carow v. Board of Educ. of City of N. Y. (272 N.Y. 341, 347) "that the Legislature in most cases determined that it was not practicable to ascertain merit and fitness by examination, and intended that both in appointment and removal the appointing officers should be free to pass upon the merit and fitness of those appointed by them; and in most cases the legislative determination may hardly be challenged as unreasonable."

The Legislature, of course, has the power to classify civil service employees. It need not, though it has done so, delegate such power to another agency, such as the Civil Service Commission. It retains the power, within constitutional limitations as to practicability, to classify certain positions, as exempt from competitive examinations. Such power cannot be exercised arbitrarily but must be exercised reasonably. (Matter of Ottinger v. State Civil Service Comm., 240 N.Y. 435, 440-441.)

In Matter of Keymer (148 N.Y. 219) the Court of Appeals declared unconstitutional an act exempting certain positions from competitive examinations.

In that case the court said (p. 226):

"While it is true that the Constitution contemplates that it may not always be practicable to ascertain merit and fitness by examinations, or to have these examinations competitive, yet a mere arbitrary declaration in an act of the legislature that competitive examinations * * * are impracticable in cases where the compensation does not exceed four dollars per day, is in plain violation of the provisions of the Constitution making competitive examinations necessary.

"It needs no argument to demonstrate that the rate of compensation attaching to an office is no test of the practicability of subjecting the applicant for the position to a competitive examination.

"It is not necessary at this time to define and limit the power here conferred upon the legislature.

"It is enough to say that the attempted exercise of power in the act of 1895 is void.

"It is quite possible there are or will be offices and positions, by reason of peculiar duties, which experience will demonstrate cannot be filled by competition and when such a case arises it will be competent for the legislature to provide for it by an appropriate act disclosing the circumstances which justify its intervention".

In Matter of Ottinger v. State Civil Service Comm. (240 N.Y. 435, 440-441, supra) the court said, in substance, that the Legislature may classify for itself, "if its classification can reasonably be regarded as a genuine endeavor to extend the constitutional test to the limit of the practicable * * * What that limit is, may not be determined * * * irrespective of experience".

The statute under consideration in that case was "not an expression of the legislative judgment that the constitutional test is impracticable for enumerated or described positions with known or determinate duties. Its aim is far more drastic. It authorizes the Attorney-General not merely to create the positions, but also to define their duties, and declares in advance that, whatever the...