Kraus v. Singstad

250 A.D. 384, 294 N.Y.S. 688, 1937 N.Y. App. Div. LEXIS 8350

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 25, 1937
• Status: Published

Opinions

McAvoy, J.

The names of the petitioners appeared upon an eligible list for the position of social investigator promulgated December 8, 1932. This proceeding was brought January 30, 1936, to compel the emergency relief bureau of the city of New York to employ only persons selected pursuant to the Civil Service Law and Rules, to compel the emergency relief bureau to discontinue the employment of persons not so selected, to compel the comptroller of the city of New York to cease contributing to the salary or compensation of any of the persons now employed in the emergency relief bureau until the municipal or State Civil Service Commission shall certify that such persons are employed pursuant to Civil Service Rules and Law, and to compel the appointment of petitioners to investigative positions in the emergency relief bureau.

On March 31, 1936, an alternative order of mandamus was granted fixing the sole issue to be tried thereunder as that raised by the denial by the emergency relief bureau that competitive examination was practicable to fill the positions involved.

The return contained substantially the following defenses: First, that the Civil Service Laws are not applicable to the employees of the temporary emergency relief administration or to any other relief bureau, including the emergency relief bureau, established in a city public welfare district for the emergency period; second, that the provisions of chapter 798 of the Laws of 1931, and the amendments thereto, providing that the employees and the clerical and other assistants or volunteers of the temporary emergency relief administration or of emergency relief bureau, shall not be subject to the provisions of the Civil Service Law, are not contrary to the provisions of the Constitution of the State of New York; third, that the provisions of chapter 798 of the Laws of 1931, and the amendments thereto, providing that the employees, etc., of T. E. R. A. or of emergency relief bureau shall not be subject to the Civil Service Law, are not contrary to the provisions of the Constitution of the State of New York; fourth, that since there is no budget provision for the employees of the emergency relief bureau, petitioners were not entitled to appointment from the list. (Marter of Danker v. Dept. of Health, 266 N. Y. 365.)

It is stipulated that approximately twenty-five per centum of the clerical administrative staff and forty per centum of the investigative force are not needy persons, and as to these persons the decision in Matter of Social I. E. Assn. v. Taylor (268 N. Y. 233) is not necessarily controlling.

May 25, 1936, objection to the return as insufficient in law was filed and motion made for the final peremptory order of mandamus. This motion came on June 17, 1936. June 19, 1936, the petition was amended to specify by name the individual members of the association, and to include specifically in the prayer for relief the appointment of such individual petitioners to the investigative positions filled by the emergency relief bureau without compliance with the Civil Service Law and Rules. The motion for final peremptory order was denied June 30, 1936.

The question to be determined here is whether employees such as investigators, bookkeepers, stenographers, clerks, telephone operators, typists, etc., who are not “ on relief,” engaged in administering the relief work in the emergency relief bureau of the city of New York are, in the language of the Constitution of the State, of New York (Art. 5, § 6) “ in the civil service of the State, and of * , * * the civil divisions thereof, including cities and villages.”

The Court of Appeals in both the Danker and the Social I. E. Assn. Cases (supra) specifically referred to the Emergency Relief Law as taking the people on work relief without the scope of the Civil Service Law. The intent of the Legislature must be construed as applying this exception to only people on work relief.

The positions of social investigators, clerks, telephone operators, stenographers and typists are all positions for which competitive examinations have for years been held, and proven eminently practicable.

The claim is asserted that section 19 of the Emergency Relief Law provides that these persons shall not be subject to the provisions of the Civil Service Law. The phraseology used in that section (as amd. by Laws of 1932, chap. 567, and Laws of 1933, chap. 9) reads: “ No person employed pursuant to this act, during the emergency period, shall be subject to the provisions of the Civil Service Law.”

* This refers to “ additional clerical and other assistants or volunteers,” who are paid upon authorization by the central T. E. R. A. authority out of the “ discretionary fund.” This sentence refers only to the positions referred to in section 19. Section 19 does not cover the regular supervising force of the local emergency relief bureau.

In section 3 of the law which refers to the employees of the Central State Administrative Agency T. E. R. A. there is the sentence: “ Employees and volunteers of the administration shall not be subject to the provisions of the Civil Service Law.” This refers merely to the Central State Authority. It does not apply to the emergency relief bureau.

The emergency relief bureau is established under the provisions of section 12, paragraph 2, of the act, which provides for the establishment of an emergency relief bureau in cities as a consolidation of various relief agencies and the taking over of the former local relief bureaus provided for in section 7. It is provided that the powers and duties of these former local relief bureaus shall be vested in the new emergency relief bureaus upon such reorganization. Section 7 does not provide for these former local relief bureaus in cities any exemption of the employees of the local bureau from the application of the Civil Service Law. Section 7 provides that these local bureaus “ may employ necessary clerks and assistants, whose compensation shall be fixed by the officer or governing Board by which such Bureau was created.”

By section 7 the mayor “ may establish ” a local bureau.

Consequently, the emergency relief bureau, under section 12, succeeds to the powers and duties “of this local bureau, and it is the power or duty of the local bureau to employ clerks and assistants whose compensation shall be fixed by the mayor. Therefore, the emergency relief bureau may employ clerks and assistants whose compensation shall be fixed by the mayor. Under such devolution of power there is no provision in sections 12 and 7 that the persons so appointed shall not be subject to the Civil Service Law.

The conclusion is inevitable that employees of the emergency relief bureau who are not on a status of “ relief ” are in the “ civil service ” within the contemplation of the constitutional provision (Art. 5, § 6).

The specific defenses raised in the return are invalid as matter of law and constitute no ground upon which the mandamus may be refused.

The order should be reversed, with twenty dollars costs and disbursements, and the motion for a final peremptory order of mandamus for the relief prayed for granted.

Martin, P. J., O’Malley and Cohn, JJ., concur; Dore, J., dissents and votes for affirmance.

Since amd. by Laws of 1936, chap. 822.— [Rep.