85 N.Y.S. 1100 | N.Y. App. Div. | 1903
Lead Opinion
The findings of fact are supported by evidence and, briefly stated, are as follows: The relator, Kenny, is a veteran volunteer fireman, having served more than the time required by law, viz., from January, 1872, to December, 1881, in the Cataract Engine Company No. 2 of the North Shore fire department of the county of Richmond, which was a volunteer fire company in said county. Kenny was appointed superintendent of out-door poor for the borough of Richmond in 1898, and held that office and fulfilled its duties continuously from that date until March 31, 1902, when he was summarily removed by Mr. Folks, commissioner of public charities of the city of New York, without a hearing upon notice or charges, and without being served with, or receiving, any charges of incompetence or misconduct. No charges of any kind were ever ‘
The office or position held by Kenny was not that of a private secretary, cashier or deputy of any official or department, and Kenny did not occupy a position involving, a strictly confidential relationship between the commissioner and himself. The office has never been abolished and still exists. At the time Kenny was removed there was a vacancy in the department which he was qualified to fill, viz., the position of deputy superintendent of out-door poor for the borough of Richmond, which, on April 1, 1902, was filled by the appointment of one Sechusen. The office of superintendent remained vacant till May 10, 1902, when the office of deputy was abolished and Sechusen was appointed superintendent of out-door poor for the borough of Richmond. The duties performed by Sechusen from April first to May tenth, as deputy, and since May tenth, as superintendent, are similar in kind and character and substantially the same as those performed by Kenny as superintendent prior to 1ns removal.
The court granted a peremptory writ of mandamus commanding the commissioner to reinstate and re-employ Kenny in the office of superintendent of out-door poor in the borough of Richmond, at his former salary. From this order the commissioner appeals.
The appellant contends that the finding that Kenny was a veteran volunteer fireman was not warranted by the evidence. We think otherwise. In the 2d paragraph of the petition it is alleged that Kenny was a veteran volunteer fireman and, while the return denied the allegation of the 2d paragraph, such denial was coupled with the allegation that no notice of such claim was made by Kenny until after his removal. At the trial Kenny was asked: “ Were yon a member of the Cataract Engine Company No. 2 ? ” A simple objection was made without specifying any grounds and afterwards the act of the Legislature incorporating the Cataract Company was offered and received in evidence without objection, and Kenny testified, also without objection, that he joined the company as an active member in 1871, and served as such until 1882, and thereafter continued to serve as a privileged member; that he was foreman in 1874.
It may be assumed that the relator could have given other evidence, if it had been necessary (which is not at all certain), in view of his testimony that he was a member of an incorporated fire company for the time required by law.
" Neither is it necessary that the veteran should be a member of a fire department officially connected with a municipality. It is- sufficient if he was a member of an incorporated fire company the object of which was to render the public service in the' extinguishment of fires. That is the public service to which the statute has. relation. In other statutes the distinction is recognized, without: making á difference by reason thereof. Notably in section 1030,. subdivision 13, of the Code of Civil Procedure, which exempts from, jury duty in the several counties of the State, other than the counties of New York'and Kings, “a member of a fire company, or fire-department, duly organized according to the laws of the State * * * who, after faithfully serving five successive years in such a fire-company, Or fire department, has been honorably discharged therefrom.” Similar language is used in subdivision 12 of section 1081" in relation to jurors in the county of New York, and in subdivision-10 of section 1127 in relation to jurors in the county of Kings.
We hold that Kenny was a veteran volunteer fireman, having served the time required by law in a “volunteer fire department ” of a town or village in this State, and, being such, could be removed from his position only for incompetency or misconduct after a hearing upon notice and stated charges.
The commissioner also contends that the relator was a deputy, and so not entitled, within the provision of section 21 of the State Civil Service Law, to notice and hearing. The court has found, upon sufficient evidence, that he was not a deputy within the meaning of said section as amended by chapter 270 of the Laws of 1902, which provides that the veteran exemption clause does not apply, among others, to a “ deputy of any official or department.” With this finding we fully concur.
The learned corporation counsel earnestly urges that section 21 is unconstitutional and void because it violates section 1 of the 14th amendment of the Constitution of the United States, which provides that “ no State shall * * * deny to any person within its jurisdiction the equal protection of the laws.” His argument is that where two men occupy exactly similar positions in the same department of the municipal service, and are accused of the same offense, one, if a veteran volunteer fireman, can be discharged only after a trial in which the burden of proof is on his accuser, and he- can have the decision reviewed on certiorari, while the other, if not a veteran, can be discharged without trial, and in such a case cannot have the decision against him reviewed. This, he contends, is not “equal protection of the laws.”
The first veteran law was passed in 1884 (Chap. 312). That act
The learned corporation counsel admitted on the argument that he had been unable to find any authority exactly in point. Neither has any member of this court.
It may be observed that the main purpose of section 1 of the 14th amendment of the Constitution of the United States was the protection.of negroes against invidious distinctions as to their legal rights. ' While it has not such a restricted sense as matter of law, it would be a long stretch of interpretation to extend it to the protection of persons in holding State offices. It cannot be affirmed that any person has a right to be appointed to a non-elective municipal office. If the municipality confers such an office upon an individual lie cannot be said to have a property right therein until a definite term of. tenure has been affixed thereto. At the most it is only a privilege, and as to privileges of citizens we have the definite utterance of the Supreme Court of the United States in Presser v. Illinois (116 U. S. 252, 266), where it was held that “ A State may pass laws to regulate the privileges and immunities of its own citizens, provided that in so doing it does not abridge their privileges and immunities as citizens of -the United States.” We cannot see why the veteran sections of the Constitution and of the Civil Service Law are not precisely and completely within the language ánd spirit of this opinion of the United States Supreme Court.
It follows that the order should be affirmed.
Hirschberg, Jenks and Hooker, JJ., concurred; Woodward, J., concurred in separate opinion.
Concurrence Opinion
1 have no hesitation in concurring in the result reached by the learned presiding justice, and generally in the reasons which appear in his opinion, but upon the constitutional question urged I prefer to place my concurrence upon slightly different grounds.
In the first place I do not understand that the appellant is in a position to raise the question of the “ equal protection of the laws.” The appellant, Homer Folks, is the commissioner of public charities of the city of New York; he holds his office and exercises its duties under the provisions of the revised Greater New York charter (Laws of 1901, chap 466, § 658 et seq.), and no rights or interests of his are involved in the discrimination between veterans and others. If some one in his employ, other than a veteran, should be removed from office without the hearing provided for in the case of veterans, such person might question whether he was given that equal protection of the law which the Constitution of the United States requires, but the appellant is not in a position ' to raise this question, for there is no question of equality in which he is interested. The statute provides that he cannot remove a veteran without a hearing, and the Legislature very clearly has a right to limit the powers of the officers of its own creation, and they cannot challenge this power, because, as between the relator and some unknown and disinterested person, there is a discrimination in the law. The Legislature might have provided that no one should be removed without a hearing, and the appellant would have accepted his position subject to this limitation on his powers, and this situation is not changed because the Legislature has seen fit to limit his . powers only as to veterans.- He takes the office under the conditions prescribed by the law; he is not denied the equal protection of the law. He has the rights conferred upon him by law, and no others, and the fact that the law, as between .others, may not be equal, cannot give him the right to discharge without a hearing those whom the law declares must be given a hearing. In other words, the appellant has no legal interest in whether the law is equal in its protection to those who are employed through his agency. He has a right to the office and its emoluments, but he has no legal interest in the relative rights of his subordinates, and when the law declares
In the case now before us the Legislature has extended a privilege to a certain class of citizens; it has limited the common-law right of the appointing officer to remove his appointee, and the officer who accepts public employment under the'laws of this State cannot disregard this limitation upon his powers, because the Legislature lias not seen, -fit to extend this privilege to all persons equally; the law ' is controlling upon the relator, whatever rights individuals discriminated against by such legislation might have in the premises. The provisions of section 21 of chapter 370 of the Laws of 1899, as amended by chapter 270 of the Laws of 1902, apply equally to every appointing power in the State; the appellant has the equal protection of the law in the discharge of the duties of the office which he holds, and if there is any defect in the statute under section 1 of the 14th amendment of the Constitution of' the United States, it is not one which affects the rights of the appellant.. That Constitution does not place any limitations upon the granting of privileges to persons occupying public offices or public employments, and the Legislature clearly had the power to determine that no one should be removed without a hearing upon specific charges, It has extended this privilege of permanency in public employment to veterans of the army and navy and of fire departments, and this is the standard of privileges which the State has established and which is controlling upon the appellant. If there are others who are not given this privileg’d, and who are deprived of their positions without an equal opportunity of being heard, they may be in a position to complain that they have been denied the equal protection of the law, but neither the appellant nor the relator has any such relation to this proceeding,, and, therefore, as to them, there is no constitutional question involved. “Nor,” says Judge Cooley in his Constitutional Limitations (6th ed. p. 196), “will a court listen to’an objection made to the constitutionality of an act by a party whose rights it does not affect, and who has therefore no interest in
Upon the merits, however, I am of the opinion that the provisions of section 20 of chapter 370 of the Laws of 1899, as amended by chapter 270 of the Laws of 1902, are not open to the objection that they do not afford the equal protection of the laws, as that clause is understood in constitutional law. This provision of section 1 of the 14th amendment of the Constitution of the United States was intended to guarantee, not that every person should have exactly the same privileges as every other person, regardless of differences in conditions, and independent of proper and reasonable classifications, but that every person within the jurisdiction of the State should be given the same rights and privileges Tinder the same circumstances and conditions; it was the same guaranty, in effect, as that found in the- 1st section of the 1st article of our State Constitution, which provides that “ no member of this State shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers.” This clause, “ the law of the land,” is defined by Judge Catron (afterward Mr. Justice Catron of the United States Supreme Court) in Vanzant v. Waddel (2 Yerg. 260) to mean “ a general and public law, equally binding upon every member of the community. * * * The right to life, liberty and property of every individual must stand or fall by the same rule or law that governs every other member of the body politic or ‘land,’ under similar circumstances.” (See Gulf, Colorado & Santa Fe Ry. v. Ellis, 165 U. S. 150, 156; Cotting v. Kansas City Stock Yards Co., 183 id. 79,105.) And the same idea finds concise expression in Yick Wo v. Hopkins (118 id. 356, 369) where in speaking of section 1 of the 14th amendment of the Constitution of the United States which guarantees the equal protection of the law, it is said: “ These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.” And the requirement of that Constitution is met when the act of the Legislature deals with all persons of a particular class (where that classification is based
Is the classification provided for in section 21 of the Civil Service Law as amended by the act of 1902 arbitrary or unreasonable ? It finds two men in public employment, one of whom has served- the State as a member of á fire department within some of its municipal corporations for a period of five years or has served the nation in its army or navy; he has performed services for which the State might pension him ; for which it might properly exempt him from jury duty or from other civic obligations, and no good reason suggests itself why the State might riot extend to him the privilege of remaining in public employment under a better tenure of office than that which is secured to the other inan who has rendered the State no special service. The classification is not arbitrary; it is based upon actual service to the State which the State had the right to compensate in the first instance or to reward by pension after it had been performed. Why, then, may not the State, in determining who shall receive the compensation of its public places, make discrimination in favor of those who have rendered special service ? In considering a similar question-presented to the Supreme Judicial Court of Massachusetts (Opinion of the Justices, 166 Mass. 589, 595) the majority of the judges say: “ The G-eneral Court may have been of opinion that a person who had served in the army or navy of the United States in the time of the war of the rebellion and had been honorably discharged therefrom, or who was a citizen of Massachusetts and had distinguished himself by valiant and heroic conduct in the army or navy of the United States and had received a medal of honor from the President of the United States, is a person who has shown'such qualities of character that it is for the interests
There is a clear distinction between the case at bar and that class of cases where the Legislature has attempted to deprive persons of their remedy against municipal corporations by requiring conditions precedent which were practically impossible of fulfillment. In those cases the fundamental rights of the individual are at stake; the cause of action, growing out of the invasion of the plaintiff’s consti
Nor does this conclusion conflict with that reached in the cases'of Grossman v. Caminez (79 App. Div. 15) and of Cody v. Dempsey (86 id. 335). The classification of cities for the purpose of depriving persons of their fundamental rights can find no justification in any of the adjudicated cases. While it is true, of course, that a thing which might be harmless if done upon a remote country highway would become a nuisance in the streets of New York, and it is competent for the Legislature to make acts criminal in one portion of the State which would not be criminal in another, this power only extends to the legitimate exercise of the police power, and not to prescribing conditions for the^transaction of business, where there is no legitimate basis for the classification. For instance, if the Statute of Frauds should be limited in its operation to the cities of the first and second class, what possible justification could there be for such a discrimination between the rights and privileges of the people of this State ? Fraud is not confined to localities; it is liable to manifest itself in all portions of the State, and the limitations should be made to reach all of the people or none. Every man making a contract in any occupation or employment should .stand upon an equal footing with every other man ; that is the essential element of the law of the land, and that equal protection of the law which is required by section 1 of the 14th amendment of the Constitution of the United States. The laws which reach and affect fundamental rights should be uniform in their operation upon persons
For the reasons above stated, I concur in the conclusion reached by the presiding justice, that the order appealed from should be affirmed.
Final order affirmed, with costs.