Ross v. Arbury

• Decision Date: 18 June 1954
• Citation: 206 Misc. 74
• Parties: Herbert U. Ross, Doing Business under the Name of "Ross Employment Service", Plaintiff,<BR>v.<BR>Ward B. Arbury et al., as Members of The State Commission Against Discrimination, Defendants.
• Court: New York Supreme Court

206 Misc. 74

Herbert U. Ross, Doing Business under the Name of "Ross Employment Service", Plaintiff,

v.Ward B. Arbury et al., as Members of The State Commission Against Discrimination, Defendants.

June 18, 1954.

Burke & Burke for plaintiff.

Henry Spitz for defendants.

CORCORAN, J.

In this action for a declaratory judgment against the members of the State Commission Against Discrimination, both the plaintiff and the defendants move for summary judgment.

The State Commission Against Discrimination, in reliance on its statutory rule-making power (Executive Law, § 295, subd. 5), adopted a regulation which reads, in part, as follows: "1. Posting of Notices. Every employer, employment agency and labor organization, subject to the Law Against Discrimination, shall post and maintain at their establishments, notices furnished by the State Commission Against Discrimination, indicating the substantive provisions of the Law Against Discrimination, where complaints may be filed and such other information as the State Commission Against Discrimination deems pertinent." (N. Y. Official Compilation of Codes, Rules & Regulations [4th Off. Cum. Supp.], p. 705.)

The notice drafted by the commission is twelve and one-half inches long by nine and three-fourths inches wide and is printed in black letters on white cardboard.

At the top of the notice appear the State Seal and the following:

"STATE OF NEW YORKC>EXECUTIVE DEPARTMENTC>State Commission Against DiscriminationC>This Establishment Is Subject To The LawC>Against Discrimination"

The notice then briefly states the objectives of the law, advises that an aggrieved person can file a complaint, and gives the addresses of the commission's local offices for anyone who has any questions as to his rights under that law or who desires further information or advice. There is no issue with respect to the form of the notice.

The plaintiff, who conducts a licensed employment agency, commenced this action against the commission for a judgment declaring the regulation to be null and void, and for an injunction against the enforcement of it. There is no dispute as to the facts. The only question involved is a legal one. Does the commission have the power to adopt the regulation in question?

There are no cases directly in point on this question of whether the posting of notices can be required. Some illustrations of posting requirements have been brought to the court's attention by the commission. It points to the authority of the Industrial Commissioner to require the posting by employers of provisions of the Labor Law and of his rules and orders pursuant to section 201 of the Labor Law; and to similar authority under section 51 of the Workmen's Compensation Law. These illustrations of statutory authorization have no bearing on the question whether there is administrative power in the absence of specific legislation. The commission's other illustration with respect to the posting of notices concerning unemployment insurance as required by rule of the Industrial Commissioner without specific statutory authorization, is also of no value because no challenge of authority was ever made in the courts.

The plaintiff's attempt to find a specific guide to the answer is equally unavailing. In 1949, the commission sponsored legislation to authorize it specifically to require the posting (Sen. Int. No. 1817, Pr. No. 1968; Assem. Int. No. 1869, Pr. No. 1958).

The bills were not reported by the legislative committees to which they were referred. The plaintiff argues that the Legislature, by not acting, intended to deny the commission such power or authority. The rules of statutory construction on implications from legislative inaction must be applied cautiously, particularly in instances where bills have not been reported to the floor, or where there is no record indicating the reasons for the disposition of them. Frequently, legislative bodies prefer to leave acts which they deem administrative to administrative agencies in the exercise of their rule-making power. In this case, such a conclusion appears as reasonable as the one the plaintiff draws.

In the absence of more specific guides, the question of authority to make the regulation must be sought under the principles which broadly distinguish between regulations which are...