People ex rel. Strahan v. Feitner

49 A.D. 101, 63 N.Y.S. 209

Opinion

Per Curiam:

Prior to June 1, 1898, the relator occupied the position of deputy tax commissioner in the department of taxes and assessments in the city of New York, and was in the enjoyment of a salary of $2,700 a year. In that position he came within the protection of section 3 of chapter 186 of the Laws of 1898, amending section 13 of'chapter 354 of the Laws of 1883, and could not be removed therefrom or reduced without the reasons therefor being stated in writing and tiled with the head of the department, and without having an opportunity to make an explanation. On the day above mentioned the defendants, commissioners of taxes, adopted a resolution by which they classified deputy tax commissioners into five grades with a different salary for each- grade. They placed the relator in the fifth grade and reduced his salary from $2,700 to $1,500 per annum. On October 27, 1898, the relator presented a petition to the Supreme Court containing the necessary allegations and praying that a writ of mandamus be issued commanding the defendants to reinstate him in his former position as deputy tax commissioner, with a salary of $2,700 a year. The proceeding being brought to a hearing, an order was made that a peremptory writ of mandamus issue requiring and commanding the respondents forthwith to reinstate and re-employ the relator in the position of ■deputy tax commissioner in the department of taxes and assessments in the city of New York, with the salary of $2,700 per annum, as the same was occupied by him prior to the 1st day of June, 1898, together with all the salary and emoluments of said position due and ¿accruing since June 1, 1898, and further commanding them and each of them forthwith to take such action as may be necessary to pay or cause to be paid to the said relator the difference between said salary and the salary he has actually received since June 1,1898; said difference amounting to $1,200 per annum. From this order the present appeal is taken.

All the questions arising on the application for the writ are fully considered in the opinion of Mr. Justice Scott, delivered at the Special Term, and little need be added to the views therein expressed.

Footnotes

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* That the relator was within the protection of the provision of the 3d section of chapter 186 of the Laws of 1898, results from what was held in People ex rel. Miller v. Feitner (42 App. Div. 622) and People ex rel. Fleming v. Dalton (158 N. Y. 175). That the action of the commissioners in making separate and distinctive grades of their deputies, whereby the relator was consigned to the •fifth .and lowest grade of all, was clearly such a reduction in rank and position as made the commissioners’ action invalid for noncompliance with the requirements of the section of the statute referred to. This reduction in position carried with it a reduction in the salary the relator had previously enjoyed, which salary was incident to the office he held. There can be in no just sense a separation of the unlawful act and its consequence. If the resolution of the commissioners degrading or reducing the relator in position was unlawful, as under the decisions it is conceded to be, the wrong affected the whole action of the commissioners, and if the relator is. entitled to reinstatement, his right extends to the full enjoyment of that of which he has been deprived unlawfully by the action of the commissioners.

The claim that the reduction was made for economical reasons does not appear to be well founded on the facts disclosed in the record before us. There has been no general reduction of the salaries of all the deputy tax commissioners; under the grading made in June, 1898, some have been increased and some diminished. They range from §3,250 for the first grade to §1,500 for the fifth grade. If the relator is entitled to be restored to the position he occupied on June 1, 1898, he cannot be compelled to- accept the diminished salary, which is only made incidental to and connected with a grade in which the commissioners had no authority to put him. As to him the classification into grades fails and the incidents of that classification as to him fail with it.

It is very strongly urged that the relator was not entitled to the writ because of laches in applying for it. Whau ,s stated in the opinion of the justice at Special Term fully disposes of that contention.

The order appealed from must be affirmed, with costs.

Present —-Van Brunt, P. J., Rumsey, Patterson, O’Brien and Ingraham, JJ..

Order affirmed, with costs,

The following is the opinion delivered at the Special Term:

Scott, J.:

The relator, on September 1, 1876, was appointed a deputy tax commissioner of the former city of Hew York, and upon the creation of the present city of Hew York continued to hold the same position. From the time of his appointment until June 15, 1898, all the deputy tax commissioners were in the same grade or class, and received a uniform salary of 83,700. The position has, for a long time, been included in the classified service as a position to be filled only after an open competitive examination, and was so classified in the rules adopted by the municipal civil service commission, and approved by the mayor on March 5, 1898. It is not questioned but that the position held by relator was one of those intended to be protected by section 8, chapter 186, Laws of 1898. (People ex rel. Miller v. Feitner, 27 Misc. Rep. 153; affd., 42 App. Div. 622.) When the tax commissioners of the present city of Hew York came into office on January 1, 1898, they found that, while all the deputy tax commissioners were in one rank, receiving a uniform salary, the extension of the city limits by consolidation had brought within the jurisdiction of the tax department certain localities where the work required of the deputy tax commissioners was not as important, and did not demand as much attention as in some other localities. The tax commissioners thereupon, and on J une 15, 1898, adopted a plan for the division of the deputies into five classes, the first receiving a salary of $3,350 a year, and the lowest or fifth class receiving a salary of $1,500. Throughout his whole term of service, and at the present time, the relator has been and is a resident of that portion of the city of Hew York now known as the borough of Manhattan, and until the adoption of the plan of classifying the deputies in June, 1898, the territory within which he performed his duties was in that borough. Upon the adoption of the plan of June 15, 1898, the relator was placed in the fifth or lowest grade, at a salary of $1,500, and assigned to perform duty in the borough of Richmond. It is conceded that the reasons for the relator’s reduction (if his relegation to the lowest rank at a lower salary was a reduction) were not stated in writing and filed with the head of the department, and that no opportunity was afforded him to make an explanation. There can, I suppose, be little doubt that the effect of the tax commissioners’ action was to “reduce” the relator within the meaning of that word as used in chapter 186, Laws of 1898. The statute is a remedial one, having for its purpose both the protection of the person directly affected and the general good of the public service. It is, therefore, to be liberally construed. (People ex rel. Taylor v. Welde, 28 Misc. Rep. 582.) It can hardly be questioned that when an officer holding a responsible position not only has his salary cut down, but is relegated from the first grade of officers of his class to the fifth grade, and is given duties to perform which are much less important than those formerly performed, he has been “ reduced ” both in rank and pay, and it is this kind of reduction which is contemplated by the statute. If, then, the relator was reduced, was the statute of 1898 violated by the commissioners?

It is contended on the part of the respondents that the adoption of the plan of classification of deputies was a mere question of administration, and that in placing the relator in the lowest grade, at the lowest salary, they merely exercised the right of so rearranging their force as to produce the best results; that in what they did, they exercised their best judgment and discretion, which are not subject to question by their subordinates, or to criticism or correction by the court, and that the assignment of the relator implied no personal unfitness or dereliction on his part, and that, therefore, there was nothing calling for an explanation, and no occasion for affording him an opportunity to explain. There are undoubtedly cases where an opportunity to make an explanation need not be afforded, because from the very nature of the case it would be ineffectual. (People ex rel. Patten v. Waring, N. Y. L. J. Nov. 7, 1895; Matter of Kenny v. Kane, 27 Misc. Rep. 680.) It is not clear that this rule applies to the present case, although it is quite possible that no explanation would have altered the .respondents’ intention respecting the relator. There is, however, another provision of the act of 1898 with which the respondents have failed to comply, and which is quite as mandatory as the provision respecting the opportunity to make an explanation. The reasons for the relator’s reduction were not reduced to writing and filed with the head of the department. This was a clear violation of the statute. The provision thus disregarded is quite as important as that prescribing an opportunity for explanation, and may often be the means of making the latter provision effective. When filed, the reasons would become public records, and a subordinate who had been reduced or removed if no opportunity for explanation had been afforded, could, at least, learn why he had been so reduced or removed. The reasons might often be-such as to justify or even demand an opportunity to make an explanation.

The present case is highly illustrative of the value of and necessity for the filing of such a statement. Even the answer of the respondents to the relator’s petition does not give anything which can properly be called a reason for the-relator’s reduction. There must have been some potent reason which led the commissioners to reduce the relator from the first grade to the fifth, and from a salary of §3,700 to ope of §1,500, and to assign’him to duty in the borough of Richmond, notwithstanding the general policy of assigning to duty former employees of the-constituent municipal corporation now consolidated into the city of Few York, which, by section 1536 of the charter (Laws of 1897, chap. 378), is declared to be-“that each person shall be assigned as nearly as may be, without prejudice or advantage, to perform the same service and in the same part of the city, and to hold the same relative rank or position in the city constituted by this act, as he performed and held at the time said plan of apportionment, and assignment is determined upon,” It is true that this provision applied directly to the plan of apportionment of officials to be made by the mayors of the several cities before the charter went into effect and in anticipation thereof, but it also indicates a legislative intent as to the assignment to duty of those who formerly held office and were by the charter transferred to the service of the new city, an intent which should be some guide to the heads of departments in the distribution of their subordinates. It is only fair to the respondents to believe that they must have had especial reasons for their disposition of the relator, andif those reasons had been truly set forth in writing and filed it may be that they would have been such as to call for an explanation. The statement that the relator was assigned to the-borough “in which his experience and intelligence could be best utilized,” can scarcely be accepted as the real reason for his reduction and transfer, for the record shows that the relator’s whole experience had been as a deputy performing duties in the borough of Manhattan, an experience which could scarcely be of much value when he was called upon to assess real estate values in the borough of Richmond. Although a removal or reduction of an officer holding a position classified as open to competitive examination may be made for reasons as to which any explanation would be obviously futile, yet, even in such a case, no reason exists why the mandate of the statute as to stating and filing the reasons for the removal or reduction should be disregarded, and because it was disregarded in the relator’s case his attempted reduction was illegal and void.

The relator has not, in my opinion, being guilty of any laches which should prevent his reinstatement. Within four months after the Court of Appeals had decided in Fleming v. Dalton that the act of 1898 was applicable to the city of New York, the relator moved to be permitted to withdraw his appeal from an order refusing him a mandamus under the Veteran Acts, and, having obtained such permission, promptly moved for leave to amend his petition so as to claim relief under the act of 1898. When that motion was denied, because of lack of power, the present proceeding was begun. Such vigilance destroys any supposed analogy between this case and that of People ex rel. Steinson v. Board of Education (158 N. Y. 125). The relator is, therefore, entitled to be restored to the position from which he was reduced, that is to say, to the receipt of a salary of §2,700 per annum, and.is entitled to be paid the difference between that salary and the salary he has actually received since his reduction. So far as restoring him to any particular grade is concerned, I do not find any warrant in the charter for classifying the deputy tax commissioners into grades, and do not understand from the papers before me that such classification by the commissioners means anything more than a division into classes depending upon the amount of salary received. Excepting as concerns the salary the deputy tax commissioners all stand upon the same footing before the law; and in the relator’s case the reduction consisted not in nominally placing him in ft grade numbered five, but in subjecting him to a reduction of salary, below that which he had formerly received and below that of others holding the same position that he held.