Gianatasio v. Kaplan , 142 Misc. 611 ( 1931 )

Callahan, J.

It was stipulated on the argument of the motion for mandamus herein that the sole question involved was whether or not the amendment to article 5, section 6, of our State Constitution, approved by the People at the general election of November 5, 1929, and the legislation adopted pursuant thereto (Laws of 1930, chap. 374, amdg. Civil Service Law, § 21), which amendment and statute provide preference in civil service to disabled war veterans, violate section 1 of the Fourteenth Amendment of the United States Constitution.

The precise claim of the petitioner is that the new veterans preference laws abridge the privileges of citizens of the United States and deny to them the equal protection of the laws because théy grant preference only to those disabled veterans who were citizens and residents of this State at the time of their entrance into the military and naval service of the United States.

The question is clarified when we consider that entry into civil service is a privilege rather than a right. It is well established that employment by the State may be made dependent upon citizenship (People v. Crane, 214 N. Y. 154; Atkin v. Kansas, 191 U. S. 207; Heim v. McCall, 239 id. 175), or upon residence in the State (Blake v. McClung, 172 U. S. 239, 256). (See, also, Ownbey v. Morgan, 256 id. 94, 109.) While there is a dearth of authority on the precise question it appears that at least where proper conditional support exists the State may provide for preference in civil service on the basis of service to the country in time of war. (Matter of Keymer, 148 N. Y. 219; Matter of Barthelmess v. Cukor, 231 id. 435; People ex rel. Kenny v. Folks, 89 App. Div. 171; Matter of Opinion of Justices, 166 Mass. 589.) As the State has the right to discriminate in favor of citizens against aliens or in favor of residents against non-residents in public employment and to reward patriotic service by preferring veterans over non-veterans, the question involved herein is whether or not it may combine these so as to provide that only war veterans who were citizens and residents of the State at the time of their entrance into the military service may receive preference.

Atkin v. Kansas (supra) and Heim v. McCall (supra) upheld the right of the State to limit employment on pubhc work to citizens of the State on the ground that such employment was a privilege rather than a right and that the State as an employer had the power to prescribe the conditions upon which it will permit pubhc work to be done by contractors paid with State funds or the funds of municipalities. These cases held that the courts did not have authority to review legislative action in that respect as the regulations on this subject suggest only questions of pubhc pohcy and with such considerations the judicial branch had no concern.

The extent to which the Supreme Court intended by its decision in Heim v. McCall to affirm the right of the State to discriminate in selecting its employees is not clear. The opinion of the court consists largely of an analogy between the questions therein involved and those before the court in Atkin v. Kansas. The principles enunciated in the latter decision were held controlhng. On first reading, Atkin v. Kansas would appear to hold that as an employer the State can select whom it hkes without restriction of any nature. It is so interpreted by some text writers and reviewers. (See Burdick Law of American Constitution, § 277; 1 Cornell Law Quarterly, 175; 28 Harv. Law Review, 498; 14 Mich. Law Review, 246.) Others indicate that the right of selection is not so broad but is subject to the general limitation that the State cannot violate other express constitutional provisions to provide by law arbitrary or unreasonable discriminations that would deprive its citizens of equal protection of the law. (Willoughby Const. [2d ed.] § 127; 4 Cal. Law Review, 405.)

That the Supreme Court did not intend to hold that no question of abridgement of the privileges of citizens or of the equal protection of the laws could arise concerning the subject of employment by the State is quite certain. Upholding the right of the State to regulate hours of employment on pubhc works (Atkin v. Kansas), or approving the right of the State to confine pubhc work to citizens (Heim v. McCall), does not necessarily determine the right of the State to discriminate between citizens as to appointment or advancement in pubhc employment solely on the basis of the citizen’s status at a particular period in the past.

That the question of constitutional infringement might arise concerning employment by the State is suggested by a consideration of the following quotations from the decision of our Court of Appeals in the case of People v. Crane {supra), a companion case to Heim v. McCall, and involving the same questions:

In the Crane case (at p. 168) the Court of Appeals in the opinion rendered by Cardozo, J., in which a majority of the court concurred, said: “ It is true that the individual, though a citizen, has no legal right in any particular instance to be selected as contractor by the government. It does not follow, however, that he may be declared disqualified from service, unless the proscription bears some relation to the advancement of the public welfare. (Strauder v. West Virginia, supra, [100 U. S. 303] at page 305.) The legislature has unquestionably the widest latitude of judgment in determining whether such a relation exists, but we are not required to hold that there is no remedy against sheer oppression. Where the line must be drawn, we do not now determine.”