Soc. Investigator Eligibles Ass'n v. Taylor

• Decision Date: 11 July 1935
• Citation: 197 N.E. 262,268 N.Y. 233
• Court: New York Court of Appeals Court of Appeals
• Parties: SOCIAL INVESTIGATOR ELIGIBLES ASS'N v. TAYLOR, City Comptroller, et al.

268 N.Y. 233

197 N.E. 262

SOCIAL INVESTIGATOR ELIGIBLES ASS'N

v.TAYLOR, City Comptroller, et al.

Court of Appeals of New York.

July 11, 1935.

Application of Social Investigator Eligibles Association for an order of mandamus against Frank J. Taylor, as Comptroller of the City of New York, and another to compel the defendant William Hodson, as Commissioner of Public Welfare of the City of New York, to discontinue the practice of utilizing the services of any persons to perform the duties of social investigator in the Department of Public Welfare ‘unless such persons are selected or appointed pursuant to the provisions of the Civil Service Law’ (Consol. Laws, c. 7) and rules, and to restrain the defendant Comptroller from paying persons so employed as social investigators unless they had been selected or appointed pursuant to the Civil Service Law and rules. From an order of the Appellate Division (243 App. Div. 689, 277 N. Y. S. 944) which affirmed an order of Special Term granting a peremptory order of mandamus, defendants appeal by permission.

Reversed, and the proceeding dismissed.

CRANE, C. J., dissenting.Appeal from Supreme Court, Appellate Division, First department.

Paul Windels, Corp. Counsel, of New York City (William C. Chanler, Paxton Blair, and Edmund L. Palmieri, all of New York City, of counsel), for appellants.

Albert De Roode, of New York City, for respondent.

LOUGHRAN, Judge.

On December 8, 1932, the Municipal Civil Service Commission of the city of New York, by open competitive examination, established a list of persons eligible for appointment to the position of ‘Social Investigator-To make field investigation of persons applying for charitable relief from the city of New York.’ The petitioner is an unincorporated association consisting of 250 eligibles now on that list. It alleges that 200 persons employed by the department of public welfare of the city as social investigators have neither passed nor been exempted from civil service examination, and receive compensation out of funds deposited to the credit of the city. The petition demands that the defendant commissioner of public welfare of the city be directed forthwith to desist from utilizing the services as social investigator of any person not selected or appointed in accordance with the Civil Service Law (Consol. Laws, c. 7) and rules, and that the defendant comptroller of the city be directed not to make payment for such services of any person not so selected or appointed.

No member of the petitioner has ever been employed by the city. Cf. Danker v. Department of Health of City of New York, 266 N. Y. 365, 194 N. E. 857. Concededly, lack of appropriation prevents any additional appointment from the civil service eligible list upon which the names of its members appear.

The answer of the defendant commissioner of public welfare is that the works division of the emergency relief bureau of the city, the local agency then administering unemployment relief (Laws 1931, Ex. Sess., c. 798, § 7), sent to his department the persons mentioned in the petition with a request that the department avail itself of their services; that ‘the services of these persons had been utilized in connection with phases of the work of our regular force of civil service investigators'; and that ‘such relief is paid from moneys provided in part by the City, the State and the Federal Government.’ No claim is made that this course was followed otherwise than in good faith.

The Appellate Division has affirmed a peremptory order of mandamus granted by the Special Term in accordance with the prayer of the petition. Because of the importance of the conflict of interests presented, we allowed this appeal by the defendants. For the same reason, we now put aside an argument that the status of the petitioner does not entitle it to a hearing on the merits. Cf. Jaffe v. Board of Education of City of New York, 265 N. Y. 160, 192 N. E. 185.

‘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.’ Const. art. 5, § 6. Attachment to the principle of this command of the Constitution constrained the courts below to proscribe the practice challenged by the petitioner. We have come to the conclusion that nothing shown by this record is offensive to that principle or calls for its vindication.

Since September 23, 1931, it has been the declared public policy of the state that the hardships and suffering caused by unemployment of a considerable number of its inhabitants is a condition that requires the furnishing of public aid to individuals as a measure for the public health and safety occasioned by an existing emergency. Laws 1931, Ex. Sess. c. 798; Laws 1932, c. 567; Laws 1933, cc. 2, 9, 34, 69, 259; Laws 1934, cc. 15, 65; Laws 1935, c. 25. Pursuant to this legislation, the services of the persons mentioned in the petition are used by the department of public welfare of the city of New York. As persons who are unemployed or whose employment is inadequate to provide the necessaries of life, they receive ‘work relief,’ i. e., wages from moneys specifically appropriated or contributed for that purpose, for services or labor in work undertaken by the...