77 N.Y.S. 241 | N.Y. Sup. Ct. | 1902
This is an application for a peremptory writ of mandamus requiring the defendants to reinstate the relator as section foreman in the department of street cleaning.
For a period of twenty years prior to May 25, 1894, the relator was a member of the police force of this city; on that date he was, pursuant to chapter 375 of the Laws of 1888, retired on his own application and became entitled to a pension which was fixed at $650 per annum by the police commissioners.
Thereafter he became an employee of the street cleaning department and on December 31, 1901, he held the position of section foreman at an annual salary of $1,200.
On December 31, 1901, the relator received the following letter:
“ Sib.— On the ground that you are now in the receipt of a pension from the City of New York, I declare your position as section foreman of this department forfeited by section 1560 of the Greater Rew York Charter, and I therefore dismiss you from the service of this department for the above-mentioned reason alone, to take effect at the end of this yoar, 1901.
" Respectfully,
“ P. E. Nagle, Commissioner.”
It is claimed by the relator that his removal, pursuant to the notice was illegal.
Section 1560 of the Charter, as it became operative on January 1, 1902, provides as follows: “Ro person now receiving or who may hereafter receive any pension from The City of Rew York
I am of the opinion that this provision is violative of the State Constitution and primarily of article 1, section 1, which, commands that no member of the 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. I am aware that, in this department at least, it has not been the usual practice to declare a law unconstitutional in the first instance at Special Term, but that its legality, where it has been attacked, has been affirmed pro forma, leaving it to the higher tribunal to declare its nullity. This has usually been done so that established order should not be interfered with until an appellate court has given at least some finality to the litigation. In this instance, however, I am not disposed to follow the practice; the granting of a stay pending appeal will prevent any disturbance of office. The provision strikes me, at least, as so obviously unconstitutional that I cannot omit, even at the risk, perhaps, of a departure from an unwritten rule of practice, briefly to state the reasons of my conclusion.
The theory as well as the spirit underlying all democratic constitutions is to deny to no one living under them, to no member of the State, the right to hold office. The trusts, offices or employments within the gift or at the disposition of the conferring power, whether by vote or by appointment, are for all the citizens. This is the general rule, and so far as we find it modified in particular instances, the reason is to be sought and found in certain properly continued inhibitions of the common law, express constitutional disqualification, or in legislative enactments following both tho common law and the reasonable intendments of the Oonstitution. While not strictly speaking a natural right or one guaranteed inviolable by the Oonstitution, it flows nevertheless from the general scheme of that instrument and the spirit of our institutions. “ Eligibility to office, is not declared as a right or principle, by any express terms of the Constitution; but it results, as a just deduc
General eligibility is the rule; disqualification is the exception. The particular Constitution may, of course, impose any disqualification which the sovereign will of the people may have seen fit to incorporate in the instrument, but it should be remembered that these restrictions are exceptional. Within certain very narrow limits the Legislature may impose additional disqualifications, dr rather certain disqualifications declared by the Legislature have been sustained not so much by virtue of any inherent power of the law-making body to limit eligibility in the broadest, sense, as by virtue of proper construction of reasonable intendments of the Constitution. These legislative disqualifications, however, are likewise exceptional. In addition to these two classes there is, perhaps, a third — disqualifications like the one that no person shall hold incompatible offices, which have been carried over and continued from the common law (People v. Green, 5 Daly, 254; People v. Carrique, 2 Hill, 93); but this class can be reasonably deduced from the spirit and intent of the Constitution itself, and the application of the old common-law rules can be treated as but the expression, legislative or otherwise, of reasonable Constitutional intendment. In other words all disqualifications are strictly constitutional whether express or implied, and all are tobe treated as restrictive of the general tendency that concedes to all citizens all civil and political rights. “ To be a citizen is to be qualified for the enjoyment of any right or privilege under our State government. * * * At any rate this is the rule and no presumption is to be indulged against it. This fundamental right of each citizen as a citizen can be impaired only by express provisions of law.” People v. May, 3 Mich. 598, 6Ó3. Such exceptions as exist are few and well defined. The maxim expressio unius esí exclusio alterius is to be applied in all its rigor. I Story Const. 628.
Specifically the underlying general rule has not been frequently or precisely stated in our cases. It has rather been taken for granted in most instances, and its terms are to be deduced from
I realize that this section of the charter would at first blush strike the average reader as entirely proper and constitutional. Proper, perhaps it is, if we consider solely the end in view; but
It is not my purpose here to enter into an analysis of the theory of a pension. Whether the intent of the Legislature was that no person should at the same time derive income from two city sources; or that the recipient of a pension, thus securing some means of livelihood for life, should not be allowed to deprive a less fortunate brother of a position in the city service, much might be said in favor of either construction on social and economic grounds. But here we have to deal simply with the proper execution of that intent. A remedy, to my mind, if one be sought, exists, and the underlying appreciation that the principle involved may be right, leads to the confusion of ideas as to the law’s constitutionality. If it is.deemed advisable to limit a city pensioner’s right to his pension to his continued nonacceptance of city employment, the prohibition would have to be incorporated, if at all, in the act granting him his pension. It is settled beyond dispute that a pension is a mere bounty or gratuity, an allowance without consideration which the granting authority may cancel, withhold, distribute, or recall in its discretion. It confers no vested rights and acts repealing statutes awarding to certain persons gratuities or bounties, have repeatedly been held to be constitutional. Nagle v. Stagg, 15 Abb. Pr. (N. S.) 348; People ex rel. Cunningham v. Roper, 35 N. Y. 629; United States v. Teller, 106 Fed. Repr. 447; Walton v. Cotton, 19 How. (U. S.) 355; Frisbie v. United States, 157 U. S. 160; Pennie v. Reis, 80 Cal. 226; 132 U. S. 464. I am not now called upon to consider the question whether the particular fund from which the relator derives his pension has characteristics which would prevent the application of the general rule. It is unnecessary to do so as the charter section under construction is sweeping and applies to all pensions. The rule is applicable wherever the allowance is strictly a pension as that term has been construed in the law, and under that rule, it seems that the legislature being the granting authority, would have ample power to incorporate a provision in the act allowing the pension, to the effect, that it should terminate or become forfeited if the pensioner accepts another office. There is the remedy, if remedy be sought, but the end cannot be accomplished by a general act announcing a rule as to eligibility in conflict with the general provisions, and the spirit and intent of the Constitution.
The relator is entitled to a writ.
Application granted.