Matter of Kraus v. Singstad , 275 N.Y. 302 ( 1937 )

The Legislature by chapter 798 of the Laws of 1931 created "a temporary emergency relief administration" to continue only during the period of "emergency" in unemployment which the Legislature found existed at that time. The "emergency period" as defined by the act "means the period between the first day of November, nineteen hundred thirty-one, and the first day of June, nineteen hundred thirty-two." Before the date fixed in advance as the limit of the "emergency period" it became evident that the need for extraordinary relief would not be over at that time. Successive Legislatures have renewed the powers of the "temporary emergency relief administration" and by new definition have extended the "emergency period." Until 1936, the successive statutes, with the exception, perhaps, of chapter 9 of the Laws of 1933, did not, in manner material to any question presented upon this appeal, change the provisions of the original statute

Section 19 of that statute provides for the appointment by city and county commissioners of "such additional clerical and other assistants or volunteers, with qualifications satisfactory to the administration, who shall not be subject to the provisions ofthe civil service law, as may be necessary for the administration of home relief." Even in that form the legislative intent to exempt all employees of local bureaus from the provisions of the Civil Service Law (Cons. Laws, ch. 7) is reasonably clear. Any possible doubt is removed by the amendment to section 19, made by chapter 9 of the Laws of 1933. The section now provides that "no person employed pursuant to this act, during the emergency period, shall be subject to the provisions of the civil service law."

It is admitted that in January, 1936, the Emergency Relief Bureau of New York city employed "for the work of investigating circumstances and conditions of persons on Home Relief upwards of one thousand (1,000) persons as investigators, visitors and/or social investigators." None of these persons, or indeed any other persons of the thousands employed by the bureau, have taken a civil service examination or have been appointed from eligible lists. The petitioners have successfully passed an examination for the position of social investigator and their names were placed upon an eligible list in December, 1932. In 1936, while the list was still in force, they instituted a mandamus proceeding to compel, among other things, the Emergency Relief Bureau to employ "only such persons hereafter as shall be selected pursuant to the Civil Service Law and Rules" and "forthwith to desist from and discontinue the employment of the persons as hereinbefore set forth unless and until they shall have been duly appointed pursuant to the Civil Service Law and Rules." The Appellate Division has held that a peremptory order should be issued. The question presented upon this appeal is whether in 1936 the Emergency Relief Bureau was authorized by the Legislature to employ persons, without competitive examination and without any other restriction imposed by the Civil Service Law.

It seems clear that the Legislature intended to confer such authority. Its power to do so is challenged. The Constitution requires that "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." (Art. V, § 6.) No person has the temerity to argue that it is not practicable to determine by competitive examination fitness for the position of social investigator, and indeed for most, if not all, of the other employments in the Emergency Relief Bureau. Even if that were not true, the Legislature could not by sweeping exemption determine that the constitutional test is impracticable for all positions thereafter to be created, even before these positions are enumerated or described and while they are without "known or determinate duties." (Matter of Ottinger v. Civil Service Comm., 240 N.Y. 435, 441.) Any attempt to do that would be patently futile. The Legislature was faced with a situation without precedent — one which perhaps the framers of the constitutional provision had not envisaged. New positions in the civil service are created ordinarily to meet needs which are more or less permanent, and appointments to such positions in most cases are made with some assurance of permanence of tenure. A sudden need for public relief had arisen. Nobody could be certain how long it would last. The Legislature planned an administration of relief which it hoped would be temporary. The duration of the administration was to last only a few months. The Legislature could not know in advance what positions should be created to cope with the new situation. A large proportion of the population of the State was in crying need. Starvation would not wait until the new administration had determined what positions should be created; till the Civil Service Commission had determined what competitive examinations would provide a test of merit and fitness for such positions; till a host of applicants, needy or otherwise, had been examined for the thousands of positions required in the city of New York, alone, for the administration of relief; and till appointments could be made from eligible lists prepared after such examinations. The constitutional provision serves a reasonable and very desirable purpose when applied to the "civil service" of the State as the term "civil service" is usually understood; i.e., to regular and stable positions in the State service. The constitutional provision becomes unreasonable and destructive of good government if it precludes the Legislature from providing speedy and efficient remedy in emergency and immediate relief for urgent needs, through persons employed by the State temporarily without appointment to any position in the "civil service." The Legislature adopted the only course which was practicable in connection with a temporary relief administration which was intended to last for only nine months. It may be assumed that it knew that it could not create civil service positions and then create a sweeping exemption of such positions. It authorized employment without appointment to a position in the civil service of the State.

We have held in Matter of Social I.E. Assn. v. Taylor (268 N.Y. 233, 237) that the Legislature had power to do so. We there said of the constitutional provision: "The command of that section is addressed to conventional and stable duties of the functionaries of civil government," and we held that persons who receive "work relief" may be employed as "social investigators" without violation of the Constitution. The reason is that "The positions in which they are said to be employed never actually existed." In the instant case it appears that of the thousand persons employed, only about sixty per cent are on work relief, forty per cent are paid from appropriations made for that purpose. If employment as "social investigator" is a position with "conventional and stable duties," then the position falls within the scope of the constitutional provision and the Legislature could not remove it. If the employment does not fall within the scope of that provision, the Legislature might properly provide that it should not be subject to the Civil Service Law. No sound basis exists for any distinction between employment of persons on work relief and employment of other persons.

It may be argued, however, that even if the Legislature might authorize temporary emergency employment without appointment to a position in the civil service, it could not continue to do so indefinitely. The Legislature saw the force of the argument and has now enacted statutes which place the temporary Emergency Relief Administration upon a permanent basis and requires that appointments there shall be made in accordance with the Civil Service Law. Perhaps many may think that the Legislature should have acted earlier, but there is some room there for the exercise of legislative judgment in that regard, and we cannot say that the Legislature has exceeded its limits.

We sustained, in July, 1935, the practice authorized by the Legislature; though, it is true, with a warning that in time the practice might become illegal. By chapters 822 and 873 of the Laws of 1936, the Legislature at its next session provided for change in the status of the Relief Administration and employment thereunder. To provide for the appointment of thousands of persons to positions in the civil service after competitive examinations and at the same time to maintain efficiency of operation of temporary employment requires planning. Employment legally initiated does not in such circumstances become illegal through lapse of time alone. Orderly government requires that after decision has been made that the employment intended to be temporary has become a stable position, the temporary employment may lawfully be continued until there has been time for appointment to the stable position after determination by the proper authority as to the manner in which fitness for the position should be ascertained. After the Legislature has provided for orderly transition from a temporary status to a permanent status, the courts may not order that present employees be forthwith discharged and persons on eligible lists prepared for other positions with similar duties appointed.

The order of the Appellate Division should be reversed and the order of the Special Term should be affirmed.

HUBBS, FINCH and RIPPEY, JJ., concur with CRANE, Ch. J.; LEHMAN, J., dissents in opinion, in which LOUGHRAN, J., concurs; O'BRIEN, J., taking no part.

Ordered accordingly.