276 A.D. 527 96 N.Y.S.2d 466 LEDERMAN et al. v. BOARD OF EDUCATION OF CITY OF NEW YORK. Supreme Court of New York, Second Department March 27, 1950
Abraham Lederman, as President of the Teachers Union of the City of New York, Local 555 of the United Public Workers, Irving Adler, and others sued the Board of Education of the City of New York for a permanent injunction against enforcement of, and a judgment declaring unconstitutional, Civil Service Law, § 12-a, as implemented by Laws 1949, c. 360, and Education Law, § 3022, subd. 2, and Rules of the Board of Regents, chapter XV-B, § 254. From so much of a judgment of the Supreme Court, Special Term, Kings County, Part 1, Murray Hearn, J., 196 Misc. 873, 95 N.Y.S.2d 114, as granted a motion as to plaintiffs Adler and others, under Rules of Civil Practice, rule 112, for judgment on the pleadings, defendant appealed. The Appellate Division, Carswell, J., held the statutes constitutional.
Judgment, so far as appealed from, reversed on the law, motion denied, and complaint dismissed.
Before NOLAN, P. J., and CARSWELL, SNEED, WENZEL and MacCRATE, JJ. John P. McGrath, Corporation Counsel, New York City (Seymour B. Quel, Michael A. Castaldi and Morris Weissberg, New York City, with him on the brief), for appellant.
Harold I. Cammer, New York City, for respondents.
John P. Walsh, New York City, and others for Kings County Committee of the American Legion, amicus curiae.
Paul O'Dwyer, New York City, and others for New York City Chapter of National Lawyers Guild, amicus curiae.
Arthur C. Buck and others for Association of Teachers of Social Studies in City of New York, amicus curiae.
R. Lawrence Siegel, New York City, and others for American Civil Liberties Union, amicus curiae.
We are required to pass upon the constitutionality of two statutes. One is section 12-a, subdivision (c), of the Civil Service Law, and the other is section 3022 of the Education Law, L.1949, ch. 360, the so-called ‘ Feinberg Law.’ The former bans organizing a society or group advocating the overthrow of the State or National government by force, as well as membership therein. The latter implements Civil Service Law, section 12-a, in respect of its enforcement and, inter alia, provides for the removal of superintendents, teachers and employees in the educational system who continue as members of subversive organizations. We may not pass upon the validity of administrative action thereunder or Regents' rules adopted pursuant thereto; such issues are not justiciable in this action.
The principles to which recourse must be had to resolve the contentions respecting the validity of the challenged statutes are elementary. The application of these principles does not present a novel or unique problem. These principles, and the reasoning vindicating them, have been the subject of prolix exposition in opinions without number. Consequently, after a thorough analysis of the arguments advanced and the cases invoked, both relevant and irrelevant, it will suffice merely to state our determinative conclusions on the pertinent or decisive contentions pressed upon us.
(1) The wisdom or unwisdom of the challenged statutes and the propriety of their enactment presents a legislative and not a judicial problem. (2) The offenses defined in section 12-a, Civil Service Law, are crimes under section 161, Penal Law, and Title 18, United States Code, section 3285, 18 U.S. C.A. § 3285. These latter enactments have been held to be constitutional. Gitlow v. People of State of New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138; Whitney v. People of State of California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095; Dunne v. United States, 8 Cir., 138 F.2d 137, certiorari denied 320 U.S. 790, 64 S.Ct. 205, 88 L.Ed. 476. Hence, section 12-a, subdivision (c), Civil Service Law, is valid.
It is patently within the power of the Legislature, to promote the general welfare and protect the public service, to provide, as a reasonable condition governing public employment, that upon the commission of certain offenses described in section 12-a, Civil Service Law, public employment shall be discontinued. A constitutional right of free speech may be abridged as a condition to the enjoyment of public employment. One does not have a constitutional right to be a public employee except upon compliance with reasonable conditions imposed upon all, or imposed under reasonable classifications. United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754; McAuliffe v. City of New Bedford, 155 Mass. 216, 29 N.E. 517; People ex rel. Clifford v. Scannell, 74 A.D. 406, 77 N.Y.S. 704, affirmed on opinion below, 173 N.Y. 606, 66 N.E. 1114; Friedman v. Schwellenbach, 159 F.2d 22, certiorari denied 330 U.S. 838, 67 S.Ct. 979, 91 L.Ed. 1285; Washington v. Clark, D.C., 84 F.Supp. 964; Pawell v. Unemployment Compensation Board of Review, 146 Pa.Super. 147, 22 A.2d 43; Matter of Rabouine v. McNamara, 275 A.D. 1052, 92 N.Y.S.2d 110; People v. American Socialist Society, 202 A.D. 640, 195 N.Y.S. 801. The condition here imposed and the classification made are reasonable. (3) A finding pursuant to the statute (§ 3022) as to an organization and its listing, upon sufficient proof and after a hearing on notice, bears rational relation to the facts to be presumed under section 3022, subdivision 2, Education Law, namely, that the organization does unlawfully advocate overthrow of the government and that a member-employee has knowledge thereof. The listing serves to apprise him of the character of the organization. The presumption in the statute is not conclusive, merely prima facie, and is a prescribed rule of evidence clearly within legislative competence. The presumed facts, moreover, are subject to defenses available to an employee at his own hearing.
He may deny (a) membership; (b) that the organization advocates the overthrow of the government by force; and (c) that he has knowledge of such advocacy. The disqualification referred to in section 12-a, subdivision (c), in respect to membership by an employee in a described organization means with knowldge of the employee of its subversive character. And the burden on the whole case is to be borne by the one preferring the charges against him. Civil Service Law, § 12-a, subd. d. The statute is prospective in operation and conforms with due process of law. Morgan v. United States, 304 U.S. 1, 15, 58 S.Ct. 773, 82 L.Ed. 1129; Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 87 L.Ed. 1519; Casey v. United States, 276 U.S. 413, 418, 48 S.Ct. 373, 72 L.Ed. 632; Manley v. State of Georgia, 279 U.S. 1, 6, 49 S.Ct. 215, 73 L.Ed. 575; People v. Pieri, 269 N.Y. 315, 324, 199 N.E. 495; People ex rel. Beardsley v. Barber, 266 A.D. 371, 43 N.Y.S.2d 588, affirmed 293 N.Y. 706, 56 N.E.2d 587.
(4) The contention that the statute, L.1949, ch. 360, Education Law, § 3022, is a bill of attainder and, therefore, invalid, is without merit. It is predicated upon language in the preamble thereto and not contained in the statute. It is unsound and irrelevant to an inquiry as to the validity of the statute. It is long settled doctrine that such a preamble is not part of a statute. Recourse to a preamble is permissible only when ambiguity is to be resolved, or statutory language interpreted. Neumann v. City of New York, 137 A.D. 55, 59, 122 N.Y.S. 62; Westchester County Society for the Prevention of Cruelty to Animals v. Mengel, 266 A.D. 151, 155, 41 N.Y.S.2d 605, affirmed 292 N.Y. 121, 54 N.E.2d 329; Pumpelly v. Village of Owego, 45 How.Prac. 219; Goodell v. Jackson, 20 Johns. 693, 722, 11 Am.Dec. 351.
Irrespective of references in the preamble to the Communist Party and its affiliated organizations, section 3022, Education Law, provides for a finding, after a hearing on notice, as to all organizations. The provisions of the statute and not the references in the preamble are determinative. The challenged statutes are constitutional.
(5) The validity of the rule of the Board of Regents need not be considered. No list has as yet been published, and any rule may be withdrawn and substituted prior to its practical application. Administrative procedure will be reviewed only at the instance of a person allegedly aggrieved thereby. Bandini Petroleum Co. v. Superior Court of California, 284 U.S. 8, 22, 52 S.Ct. 103, 76 L.Ed. 136, 78 A.L.R. 826; Town of Pierrepont v. Loveless, 72 N.Y. 211, 216. (6) The allegations in the complaint with respect to proposed expenditures by the defendant are expressly denied in the answer. This issue of fact precludes the granting of a judgment on the pleadings in favor of the plaintiffs.
The judgment, in so far as appealed from should be reversed on the law, with $10 costs and disbursements, the motion for judgment on the pleadings denied, with $10 costs, and the complaint dismissed, under Rule 112, Rules of Civil Practice, with costs.
Judgment, in so far as appealed from, reversed on the law, with $10 costs and disbursements, the motion for judgment on the pleadings denied, with $10 costs, and the complaint dismissed, under Rule 112, Rules of Civil Practice, with costs.