De Veau v. Braisted

• Decision Date: 12 May 1958
• Parties: , 42 L.R.R.M. (BNA) 2310, 34 Lab.Cas. P 71,549 George DE VEAU, Daniel Lowery and David Honan, individually and as members of Local 1346 of the International Longshoremen's Association (Ind.) and on behalf of all other members of Local 1346 of the International Longshoremen's Association (Ind.), Appellants, v. John M. BRAISTED, Jr., as District Attorney of Richmond County, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 596

174 N.Y.S.2d 596

5 A.D.2d 603, 42 L.R.R.M. (BNA) 2310,

34 Lab.Cas. P 71,549

George DE VEAU, Daniel Lowery and David Honan, individually and as members of Local 1346 of the International Longshoremen's Association (Ind.) and on behalf of all other members of Local 1346 of the International Longshoremen's Association (Ind.), Appellants, v. John M. BRAISTED, Jr., as District Attorney of Richmond County, Respondent.

Supreme Court, Appellate Division, Second Department.

May 12, 1958.

Arthur J. Cilento and Thomas W. Gleason, New York City, for appellants.

John M. Braisted, Jr., Dist. Atty., Richmond County, Port Richmond (Thomas R. Sullivan, Staten Island, of counsel), for respondent.

William P. Sirignano, New York City, and Robert J. Mozer, Jamaica, for Waterfront Commission of New York Harbor, amicus curiae.

Nanetee Dembitz, Stephen C. Vladeck and Edward L. Sadowsky, New York City, for New York Civil Liberties Union, amicus curiae.

Before NOLAN, P. J., and WENZEL, UGHETTA, HALLINAN and KLEINFELD, JJ.

WENZEL, Justice.

Appellants challenge the validity of section 8 of the Waterfront Commission Act (L.1953, ch. 882, as amended), McK.Unconsol.Laws, § 6700-aa et seq., the interpretation thereof by respondent, and the action taken by him based thereon which led to the dismissal of appellant De Veau as secretary-treasurer of the labor union known as Local 1346 of the International Longshoremen's Association (Ind.), hereinafter referred to as the local. De Veau and his two co-appellants brought this action in their individual capacities and as members of the local, and on behalf of all other members of the local, seeking a declaratory judgment and injunctive relief.

So far as material, section 8, McK.Unconsol.Laws, § 6700-ww states that 'No person shall solicit, collect or receive any dues, assessments, levies, fines or contributions within the state from employees registered or licensed pursuant to the provisions of this act for or on behalf of any labor organization representing any such employees, if any officer or agent of such organization has been convicted by a court of the United States, or any state or territory thereof, of a felony unless he has been subsequently pardoned therefor by the governor or other appropriate authority of the state or jurisdiction in which such conviction was had or has received a certificate of good conduct from the board of parole pursuant to the provisions of the executive law to remove the disability.'

According to the complaint, De Veau had been secretary-treasurer of the local for some time up to January 17, 1957 and was on that day suspended from his office by the president of the parent organization of the local (the parent organization shall hereafter be referred to as the I.L.A.) because of a threat by a certain assistant district attorney in respondent's office that he would commence a prosecution based on section 8 and a conviction of De Veau in 1922 in the Court of General Sessions in the County of New York of the crime of attempted grand larceny in the first degree, which conviction was had upon De Veau's plea of guilty. The complaint further alleges that De Veau received a suspended sentence and was 'paroled' [sic] for five years, that he complied with the conditions of the 'parole' [sic], that he was last re-elected to his said office in 1955, prior to the said action taken by the president of I.L.A., and the membership of the local re-elected him at that time with knowledge of his said 1922 conviction, that his services as an agent of the local are valuable to the local, and that he himself has been damaged by the termination of his employment in that he was deprived of his right to continue in the employment and has lost certain substantial welfare benefits and pension rights.

Respondent admits in his answer that the assistant district attorney in question advised the president and other I.L.A. representatives of De Veau's said conviction and of the provisions of section 8.

Appellants' contentions are that section 8 is violative of the Constitution of the United States, that it is void because it conflicts with the National Labor Relations Act (U.S.C.A., tit. 29, § 151 et seq.), particularly section 7 thereof, and that the 1922 conviction is not a conviction within the intendment of section 8 in view of the fact that sentence had been suspended, and therefore no judgment of conviction was rendered.

In limine, disposition must be made of respondent's argument that the court does not have jurisdiction of this action. The remedy of an action for a declaratory judgment (Civil Practice Act, § 473) 'is applicable in cases where a constitutional question is involved or the legality or meaning of a statute is in question and no question of fact is involved' (Dun & Bradstreet v. City of New York, 276 N.Y. 198, 206, 11 N.E.2d 728, 732). Of course there must be a real controversy, involving substantial legal interests, and the defendant must be in a position to place the plaintiff's rights in jeopardy (22 Carmody-Wait on N. Y. Practice, pp. 713-717). Resort to this remedy and also to that of an injunction may be had even with respect to penal statutes and against a public official or public agency whose duty it is to conduct appropriate prosecutions, if the purpose be to avoid irreparable injury and if the sole question is one of law (Reed v. Littleton, 275 N.Y. 150, 9 N.E.2d 814; Mills Novelty Co. v. Sunderman, 266 N.Y. 32, 193 N.E. 541; New York Foreign Trade Zone Operators v. State Liquor Authority, 285 N.Y. 272, 34 N.E.2d 316; Aerated Products Co. of Buffalo v. Godfrey, 263 App.Div. 685, 35 N.Y.S.2d 124, reversed on other grounds 290 N.Y. 92, 48 N.E.2d 275). One of the very purposes of a declaratory judgment is to settle a serious question of law as to the validity of a statute which would be the basis of a threatened prosecution for crime, without requiring, as a prerequisite to judicial entertainment of the question, that interested parties first commit the very acts which are involved in the dispute and thereby run the risk of such prosecution (New York Foreign Trade Zone Operators v. State Liquor Authority, supra, 285 N.Y. at page 278, 34 N.E.2d at page 319).

In previous actions similarly brought to test the validity of this very section 8, it was recognized that the remedy of an action for declaratory judgment was appropriate (Linehan v. Waterfront Commission of New York Harbor, D.C., 116 F.Supp. 401, 405 [De Veau was also a plaintiff in this cited case]; International Longshoremen's Ass'n, Independent v. Hogan, 3 Misc.2d 893, 156 N.Y.S.2d 512) and in the case last cited, and in other cases in which the validity of all or portions of the Act was attacked, it was also recognized that an action for an injunction would be a proper remedy (Staten Island Loaders v. Waterfront Commission of New York Harbor, D.C., 117 F.Supp. 308, affirmed Linehan v. Waterfront Commission of New York Harbor, 347 U.S. 439, 74 S.Ct. 623, 98 L.Ed. 826; Linehan v. Waterfront Commission of New York Harbor, D.C., 116 F.Supp. 683, affirmed 347 U.S. 439, 74 S.Ct. 623, 98 L.Ed. 826; Bradley v. Waterfront Commission of New York Harbor, D.C., 130 F.Supp. 303; O'Rourke v. Waterfront Commission of New York Harbor, D.C., 118 F.Supp. 236).

The facts presented in the record establish ample basis for the court at least to consider the legal questions which are posed. Respondent, through the power of his office, has in effect forced De Veau's dismissal from his position. Not only has De Veau lost his executive post and certain emoluments, but the local and its members have lost him as a representative. Neither the local nor the I.L.A. chose to challenge respondent's position, and it does not appear that De Veau or anyone else has any remedy against the local or the I.L.A. or their officials.

The question as to whether violation of section 8 is indeed a crime or offense, and whether respondent indeed could have prosecuted a violator of the section, has not been raised and we do not pass on it. However, certain observations will be made hereinbelow as to that question, after first reviewing the aspects of the Waterfront Commission Act which are salient on the issues which have been raised.

The act is divided into three parts. Part I contains but one section ( § 1). It is a restatement of a compact (the Waterfront Commission Compact) which had been entered into between the States of New York and New Jersey, and has been approved by the Congress (67 U.S.Stat. 541). It contains 16 articles. Article I sets forth findings and declarations as to certain evil conditions and practices that had prevailed with respect to waterfront labor within the Port of New York district. Succeeding articles create a Waterfront Commission of New York Harbor as the agency to administer the laws regulating waterfront activities, prohibit persons from working or engaging in certain occupations (pier superintendent, hiring agent, port watchman and stevedore) without a license obtained from the Commission, and in another occupation (longshoreman) unless they have been included in the longshoremen's register established by the Commission. Consistent with the manifest intent in section 8 to prevent the existence of any influence of convicted felons upon the waterfront, waterfront labor and related matters, these articles also provide that no such license shall be granted to a person who has been convicted of a felony, subject to a right given to the Commission, where application is made for a license as pier superintendent, hiring agent or stevedore, to remove the ineligibility by reason of such conviction upon satisfactory evidence that the conduct of the license applicant in question for a period of not less than five years has been such as to warrant the grant of the license, and that the five-year period 'shall be measured either from the date of payment of any fine imposed upon such person or the...