199 N.E. 624 | NY | 1936
Lead Opinion
The petitioner was removed from his position as dockmaster on May 16, 1934, in violation of his rights under the Civil Service Law (Cons. Laws, ch. 7). He was reinstated by order of mandamus dated October 26th. During the interval the salary which should have gone to him was paid to another, who though younger in service was retained by the city in the position to which the petitioner was entitled. The order of reinstatement contained a direction for the payment by the city of the same salary to the petitioner. Before that direction was obeyed, this court inMatter of Barmonde v. Kaplan (
Thereafter, by chapter 734 of the Laws of 1935, the Legislature amended section
The petitioner does not now challenge the order of resettlement which denied him the right which he at that time asserted. The law, as it then was, dictated such denial. Now he asserts a new statutory right. The earlier decision may be a conclusive adjudication of the petitioner's rights, existing then; it cannot be an adjudication of rights thereafter conferred by law, or bar a new proceeding to vindicate new rights.
It is clear that the Legislature intended to confer this new right retroactively upon those "who shall have been * * * removed," as well as prospectively upon those who "may hereafter be removed." Though, ordinarily, legislation creating new rights and obligations is intended to have only prospective application, yet within a limited field where no provision of the Constitution of the State or the United States restricts the powers of the Legislature, statutes which are clearly intended to have retroactive effect may be so applied. New rights may have their roots in old relationships. The question here is whether the Legislature in attempting to confer a new right upon officers and employees who had theretofore been removed in violation of the Civil Service Law, exceeded its powers as limited by the Constitution.
Until the statute was enacted, the city was under no obligation to pay to the petitioner the compensation it *374 has been directed to pay to him. Under the statute, compensation is to be paid as part of the emoluments of the petitioner's office, or for loss theretofore suffered by reason of a completed wrong. If it is regarded as extra compensation to a public officer or servant, section 28 of article III of the Constitution bars the Legislature from granting it. If it is regarded as a gift of public moneys, section 10 of article VIII is violated. We are told, however, that it is neither extra compensation nor gift, but an appropriation of public moneys to meet a moral obligation. That is the problem presented upon this appeal.
By constitutional mandate, the principle that appointments and promotions in the civil service of the State shall be based upon merit, and that the civil servants of the State shall have security of tenure, is firmly embodied in the public policy of the State. The Legislature rests under the duty of giving effect to this mandate by appropriate legislation. The removal of the petitioner violated provisions of the Civil Service Law and, even if made in good faith because of mistaken interpretation of complicated rules, it was a wrongful act, which deprived the petitioner of the benefits and emoluments of his office. The law provided a remedy by which the petitioner could be restored to his position; it did not permit recovery of the salary attached to the position where such salary had been paid to another. To that extent the Civil Service Law failed to confer upon officers and employees of the State or municipal corporations all the benefits of complete security of tenure. The common law had imposed no obligation to pay such salary upon the State or a municipal corporation, and the Legislature had not created such obligation. Under the recent amendment of the statute, the benefit of security of tenure in office or position is made more complete. Now it includes the right to demand and receive, as damages for a wrongful removal, the compensation which, but for such removal, *375 an employee would have earned and received. It cannot be doubted that the Legislature had power to provide that in the future such a right should be attached to tenure of office. There the Legislature's discretion in determining the rights and benefits which should attach to an office or position in the civil service and in determining how security of tenure shall be safeguarded is almost plenary. Then public moneys are used to meet the obligations to officers and employees in the civil service, which the Legislature could impose upon the State and municipal corporations. They are not used in any sense as a gift.
The situation is different when the Legislature provides that public moneys shall be used to pay to holders of office or positions, salaries or compensation for a period during which the State or municipal corporation was under no legal obligation to pay such salary. That is what the Legislature has attempted to do when it provided that persons "who shall have been * * * removed from any position * * * and who shall have been restored to such position or employment" may enforce payment of salary or compensation during the interval between removal and restoration. Such provision is on its face a gift of public moneys, unless there was a moral obligation to pay, even though no legal obligation may exist.
We assume that the Legislature has determined that such a moral obligation did exist here. "The decision by the Legislature that certain facts create a moral obligation, even if those facts exist, is not conclusive. The courts will still be called upon to decide whether its judgment was correct." (Williamsburgh Sav.Bank v. State,
The injustice must be real, and even then the remedy may not be through the grant of extra compensation to a public officer, servant, agent or contractor. "Such terms as `moral obligation' and obligations `founded on justice and equity' are flexible. They serve to formulate the problem rather than to provide the formula by which the problem may be solved. No yardstick has ever been devised which can be mechanically applied. None the less, in every case there must exist an obligation which would be recognized, at least, by men with a keen sense of honor and with real desire to act fairly and equitably without compulsion of law." (Ausable Chasm Co. v. State,
In that field the Constitution has imposed upon the Legislature a more inflexible restriction. A keen sense of honor and a real desire to deal fairly and equitably without compulsion of law might, at times, impel a private person to grant to a servant or contractor compensation beyond the amount which by agreement he was bound to pay. The Constitution of the State forbids the Legislature from granting any extra compensation (Art. III, § 28). There the mandate is absolute, regardless of conditions or circumstances. It is said that in this case the Legislature did not grant extra compensation to a public servant, but merely provided that he should receive the compensation previously fixed by law, to which he would have been entitled except for his wrongful removal, and in effect imposes damages for a wrong committed by the State or a municipality. Such distinctions would defeat the plain intent of the constitutional restriction. That is imposed for the protection of the public against misapplication of the public moneys. The Legislature may not use these moneys for the payment of compensation to a public servant where the servant is not entitled by law to such compensation. A payment of compensation to a public servant constitutes extra compensation whenever there is no legal obligation to pay such compensation. The Legislature has attempted to impose upon the city an obligation to pay its servant compensation during a period when such servant has been ousted from his office and has performed no services for which the city was liable. A statute requiring a city "to pay its public money for a service never rendered and for which it was not liable, falls within the inhibition of the provisions of the Constitution." (Stemmler v.Mayor,
The order of the Appellate Division should be reversed and that of the Special Term affirmed, without costs. *378
Dissenting Opinion
I am unable to concur for it seems to me that there is not only a moral obligation to pay the incumbent who has been wrongfully removed, but the situation is such that if private individuals were involved, there would also be a legal obligation by way of damages for the breach. (Howard v. Daly,
The respondent was wrongfully removed, rightfully reinstated, has not been reimbursed, and had no opportunity to receive any other compensation during the period he was out of office.
I vote to affirm.
CRANE, Ch. J., HUBBS, CROUCH and LOUGHRAN, JJ., concur with LEHMAN, J.; FINCH, J., dissents in opinion, in which O'BRIEN, J., concurs.
Ordered accordingly. *379