289 N.Y. 1 | NY | 1942
Henry M. Williams, a fireman, first grade, in the Fire Department of New York City, enlisted in the United States *4 Marine Corps Reserve on January 26, 1942. He had filed an application for enlistment on November 27, 1941, without the knowledge or consent of his superior officers in the Fire Department. He reported for physical examination on January 14, 1942. By written notice dated January 22, 1942, he was informed officially that he was "eligible for enlistment in the Marine Corps" and that if he would present himself at the office of the Corps "with your birth certificate and release from your local draft board, we will complete your enlistment and immediate transfer to active duty." His enlistment was completed on January 26th and immediately he was "ordered to report for active service" on January 27, 1942. Since then he has been on active service with the armed forces of the United States.
At the time of the enlistment the Military Law (Cons. Laws, ch. 36, § 245, subd. 1) provided:
"1. Every officer and employee of the state or of a municipal corporation or of any other political subdivision thereof who is a member of the national guard or naval militia, or a member of the reserve corps or force in the federal military, naval or marine service, shall be entitled to absent himself from his duties or service while engaged in the performance of ordered military or naval duty, and while going to and returning from such duty. Notwithstanding the provisions of any general, special or local law or the provisions of any city charter, no such officer or employee shall be subjected by any person whatever directly or indirectly by reason of such absence to any loss or diminution of vacation or holiday privilege or be prejudiced by reason of such absence with reference to promotion or continuance in office or employment or to reappointment to office or to re-employment. During the absence of any such officer or employee, while engaged in the performance of ordered military or naval duty as a member of the national guard or naval militia, or as a member of the reserve corps or force in the federal military, naval or marine service, he shall receive his salary or compensation as such officer or employee, provided the period of such absence in any calendar year does not exceed thirty days. If the period of such absence in any calendar year exceeds thirty days he shall receive for the period of absence in excess of thirty days such part of his salary *5 or compensation as such officer or employee as equals the excess, if any, of such salary or compensation paid to him for the performance of such duty."
The benefits accorded by that statute constitute one of the terms of the employment of every employee of the State or of a municipal corporation. (Hoyt v. County of Broome,
Employees of the State or city who were members of the National Guard or Naval Militia or "of the reserve corps or force in the federal military, naval or marine service" prior to the date in December, 1941, when the United States declared war, have a right, which is no longer subject to serious challenge, to the privileges and benefits granted to them under the terms of the Military Law. (Hoyt v. County of Broome, supra.) The defendants, representing the City of New York, contend that employees who become members after that date are entitled to no such benefits. On December 15, 1941, the Fire Commissioner, with the approval of the Mayor, promulgated a special order that no application for permission to enlist in the armed forces would be granted to members of the Fire Department. Williams enlisted thereafter without such permission. For these reasons the claim made in his behalf was rejected by the city.
We are told that the special order of the Fire Commissioner was promulgated "because it was deemed essential for the defense of the City that members of the Fire Department should continue *6
in the department during the war between the United States and the Axis powers." We may assume that there is good reason why members of the Fire Department should continue during the war to perform the duties, for which they have received special training, in an organization which might be called upon to perform an essential defense service which it alone could efficiently perform. We assume, too, that within the limits of the powers granted by statute to the Fire Commissioner, he may promulgate orders calculated to retain such men in his department. The Military Law, by its express terms, limits the administrative powers of State or city officers, granted to them by other statutes. No order or rule may be promulgated by which the privileges and benefits granted to certain employees by section
The privileges and benefits accorded by this section are not in terms limited to those who became members of the reserve corps or force in times of peace but the court at Special Term, after a careful review of the history of the section and the amendments made from time to time by the Legislature, has concluded that:
"Both in its original passage and the subsequent amendments to subdivision 1, it is clear that the Legislature was concerned with ordered duty arising out of peacetime membership in the National Guard or naval militia, or, as subsequently provided, in duty arising out of peacetime membership in the federal reserve forces.
"To avail oneself of the benefits of that law a person must have been (1) a member of the National Guard or of the federal reserve forces concurrently with his civilian employment, and (2) must have been ordered compulsorily to absent himself from civilian duty because of such membership, not because of his volunteering for duty."
Doubtless in 1911, when the Legislature first enacted section
We find no sound basis for any such implication. True, enlistment in the reserve forces in war time may be equivalent to enlistment for immediately ordered active duty. When every citizen is subject to draft for selective service in the country's war effort, there may be doubt as to the soundness of a public policy which gives to a person who enters the armed service through voluntary enlistment in the reserve force a benefit or special privilege not accorded to one who enters the armed service through the selective service draft. We may assume, for the purpose of this appeal, that if the Legislature had foreseen that the time might come when this country would be engaged in a total war to preserve its freedom and the entire man power of the country would be registered and subject to call for selective service, it might not have enacted section 245. Perhaps then it might have refused to draw any distinction between employees inducted into the service under a Selective Service Law and those who entered the service through voluntary enlistment in a reserve force and might have chosen as matter of policy to grant or deny benefits to all alike. The Legislature did indeed, by chapter 255 of the Laws of 1942 (effective *8 April 1, 1942), amend subdivision 1 of section 245, to provide that only those public employees who are members of the National Guard or Naval Militia or of the reserve corps or force "on or before the date this subdivision as hereby amended takes effect" shall be entitled to the privileges and benefits accorded by the subdivision. Thus, those thereafter entering the military service by enlistment in the reserve force or corps enjoy no advantage over those inducted into the military service through other channels. The amendatory statute left untouched the privileges and benefits of those public employees who had been placed in a special category by prior membership in the reserve force or corps pursuant to the provisions of the existing statute. That statute had not restricted the special category to those who had become members before a declaration of war. The amendatory statute does not suggest any distinction between those who had joined before and those who joined after such declaration. It is difficult to find any ground upon which the court would be justified in reading into the statute a distinction or restriction which the Legislature did not express, even though perhaps the Legislature might have enacted a different statute if it had conceived the possibility that conditions analogous to those created by the present war would ever exist.
Until those new and, perhaps, unanticipated, conditions arose, the grant of special benefits and privileges was concededly valid and involved no arbitrary discrimination. There was reasonable ground for the determination by the Legislature that the State would receive adequate benefit from such a grant to all within the class defined by the Legislature. No person, within or without that class, is deprived of the equal protection of the law, even if we assume that with equal reason the Legislature might now grant the same privilege to other classes or might conclude to deny it to all. Determination of such questions is, under the Constitution, confided to the Legislature. "These considerations address themselves to the law-making power if not to the courts. Assuming that all might be included, on judicial review, a classification is not held to be bad because it is not comprehensive." (People ex rel. Bryant v. Zimmerman,
The order should be affirmed, with costs.
LOUGHRAN, FINCH, RIPPEY, LEWIS, CONWAY and DESMOND, JJ., concur.
Order affirmed.