262 A.D. 109 | N.Y. App. Div. | 1941
The order appealed from directs the respondents to certify the payrolls of the petitioners and to continue to employ them in the department of welfare of the city of New York as veteran relief investigators or social investigators and to pay the petitioners’ salaries, subject only to the limitation set forth in subdivision 1-a of section 22 of the Civil Service Law (Hampton Act, Laws of 1941, chap. 784), effective April 28, 1941. The order also denied the intervenor-appellant’s application to dismiss the petition.
Subdivision 1-a of section 22 provides in substance that no person holding a provisional or temporary position who is a veteran or an exempt volunteer fireman, and who was employed on or before December 31, 1937, in a position in a public welfare department or emergency relief bureau, and whose salary is being paid wholly or in part from special emergency relief taxes, shall be removed from such position except for incompetency or misconduct shown after a hearing upon due notice upon stated charges.
The petitioners were provisional appointees as social investigators in the veterans division of the department of welfare. In
The new statute is also void because it grants a privilege, to one class of veterans and volunteer firemen and discriminates arbitrarily and unreasonably against all other veterans and volunteer firemen equally entitled, under the Constitution, to the same rights and privileges. This statute attempts to confine special privileges only to such veterans or exempt volunteer firemen as were employed before a specified date in a public welfare department and whose salary is paid from emergency relief taxes. It does all but name its particular beneficiaries, and comes within the condemnation of a statute unmistakably aimed to confer a favor on designated persons who are none the less designated though not specifically named. (Barlow v. Berry, 245 N. Y. 500, 503; Matter of Barthelmess v. Cukor, 231 id. 435, 441.)
In the memorandum of the Governor approving the act, he points out that there is grave doubt as to its constitutionality extending special privileges.
We cannot agree with the contention that this was not an effort at a purported appointment in the civil service of the State of persons not entitled to appointment from an eligible list to the exclusion of persons who were. The petitioners were never validly appointed in any civil service class, either exempt or non-competitive, but were merely temporary or provisional appointees,
We are constrained to hold that the mandate of the Constitution must be obeyed. The order appealed from should be reversed, with twenty dollars costs and disbursements, and the motion to dismiss the petition granted.
Present — Martin, P. J., Townley, Dore, Cohn and Callahan, JJ.
Order unanimously reversed, with twenty dollars costs and disbursements, and motion to dismiss the petition granted.