Mullane v. McKenzie

• Decision Date: 07 January 1936
• Citation: 199 N.E. 624,269 N.Y. 369
• Court: New York Court of Appeals Court of Appeals
• Parties: MULLANE v. McKENZIE, Commissioner of Docks, et al.

269 N.Y. 369

199 N.E. 624

MULLANE

v.McKENZIE, Commissioner of Docks, et al.

Court of Appeals of New York.

Jan. 7, 1936.

Proceeding by John T. Mullane for a mandamus order against John McKenzie, Commissioner of Docks of the City of New York, and others, to compel the defendants to pay to petitioner certain arrears of salary for his services as a dockmaster in the department of docks of the city of New York. From an order of the Appellate Division, First Department (245 App.Div. 397, 282 N.Y.S. 909), which reversed an order of the Special Term, defendants appeal.

Order of Appellate Division reversed and that of Special Term affirmed.

See, also, 153 Misc. 255, 275 N.Y.S. 262; 245 App.Div. 711, 281 N.Y.S. 983,- App.Div. -, 285 N.Y.S. 402.

FINCH and O'BRIEN, JJ., dissenting.Appeal from Supreme Court, Appellate Division, First department.

Paul Windels, Corp. Counsel, of New York City (Paxton Blair and Arthur B. Hoff, Jr., both of New York City, of counsel), for appellants.

John B. Doyle, of New York City, for respondent.

Joseph T. Malone, of New York City, amicus curiae.

Albert De Roode, of New York City, for William A. Carroll, amicus curiae.

LEHMAN, Judge.

The petitioner was removed from his position as dockmaster on May 16, 1934, in violation of his rights under the Civil Service Law (Consol. Laws, c. 7). He was reinstated by order of mandamus dated October 26th. During the interval the salary which should have gone to him was paid to another, who though younger in service was retained by the city in the position to which the petitioner was entitled. The order of reinstatement contained a direction for the payment by the city of the same salary to the petitioner. Before that direction was obeyed, this court in Barmonde v. Kaplan, 266 N.Y. 214, 194 N.E. 681, pointed out that under long-established rules of law the city was under no obligation to pay the salary, attached to a position, to the person who was rightfully entitled to such position, where it had already paid the same salary to another, who actually, though without right, occupied the position and performed its duties. Then upon a motion made at Special Term to resettle the order for the petitioner's reinstatement, the provision for the payment of salary to the petitioner was stricken out.

Thereafter, by chapter 734 of the Laws of 1935, the Legislature amended section 23 of the Civil Service Lawto provide that ‘any officer or employee who shall have been, or may hereafter be removed’ from his position in ‘violation of any provision of this chapter [the Civil Service Law],’ and thereafter restored to his position by order of the Supreme Court, should be entitled to receive the same compensation from the date of his removal to the date of his restoration which he would have received in such position, but for such unlawful removal, less the amount of any compensation received from any other employment or occupation during that period. Thus by change in the law the Legislature has conferred upon officers and employees in the civil service a right to compensation which the law had theretofore denied to them.

The petitioner does not now challenge the order of resettlement which denied him the right which he at that time asserted. The law, as it then was, dictated such denial. Now he asserts a new statutory right. The earlier decision may be a conclusive adjudication of the petitioner's rights, existing then; it cannot be an adjudication of rights thereafter conferred by law, or bar a new proceeding to vindicate new rights.

It is clear that the Legislature intended to confer this new right retroactively upon those ‘who shall have been * * * removed,’ as well as prospectively upon those who ‘may hereafter he removed.’ Though, ordinarily, legislation creating new rights and obligations is intended to have only prospective application, yet within a limited field where no provision of the Constitution of the state or the United States restricts the powers of the Legislature, statutes which are clearly intended to have retroactive effect may be so applied. New rights may have their roots in old relationships. The questionhere is whether the Legislature in attempting to confer a new right upon officers and employees who had theretofore been removed in violation of the Civil Service Law exceeded its powers as limited by the Constitution.

Until the statute was enacted, the city was under no obligation to pay to the petitioner the compensation it has been directed to pay to him. Under the statute, compensation is to be paid as part of the emoluments of the petitioner's office, or for loss theretofore suffered by reason of a completed wrong. If it is regarded as extra compensation to a public officer or servant, section 28 of article 3 of the Constitution bars the Legislature from granting it. If it is regarded as a gift of public moneys, section 10 of article 8 is violated. We are told, however, that it is neither extra compensation nor gift, but an appropriation of public moneys to meet a moral obligation. That is the problem presented upon this appeal.

By constitutional mandate, the principle that appointments and promotions in the civil service of the state shall be based upon merit, and that the civil servants of the state shall have security of tenure, is firmly embodied in the public policy of the state. The Legislature rests under the duty of giving effect to this mandate by appropriate legislation. The removal of the petitioner violated provisions of the Civil Service Law and, even if made in good faith because of mistaken interpretation of complicated rules, it was a wrongful act, which deprived the petitioner of the benefits and emoluments of his office. The law provided a remedy by which the petitioner could be restored to his position; it did not permit recovery of the salary attached to the position where such salary had been paid to another. To that extent the Civil Service Law failed to confer upon officers and employees of the state or municipal corporations all the benefits of complete security of tenure. The common law had imposed no obligation to pay such salary upon the state or a municipal corporation, and the Legislature had not created such obligation. Under the recent amendment of the statute, the benefit of security of tenure in office or position is made more complete. Now it includes the right to demand and receive, as damages for a wrongful removal, the compensation which, but for such removal, an employee would have earned and received. It cannot be doubted that the Legislature had power to provide that in the future such a right should be attached to tenure of office. There the Legislature's discretion in determining the rights and benefits which should attach to an office or position in the civil service and in determining how security of tenure shall be safeguarded is almost plenary. Then public moneys are used to meet the obligations to officers and employees in the civil service, which the Legislature could impose upon the state and municipal corporations. They are not used in any sense as a gift.

The situation is different when the Legislature provides that public moneys shall be used to pay to holders of office or positions, salaries, or compensation for a period during which the state or municipal corporation was under no legal obligation to pay such salary. That is what the Legislature has attempted to do when it provided that persons ‘who shall have been * * * removed from any position * * * and who shall have been restored to such position or employment’ may enforce payment of salary or compensation during the interval between removal and restoration. Such provision is on its face a gift of public moneys, unless there was a moral obligation to pay, even though no legal obligation may exist.

We assume that the Legislature has determined that such a moral obligation did exist...