Petitioners, John Foy and Sidney Goldman, are welders. They are employed in the New York City Transit System in the position of car maintainer, group D. Foy has held his position continuously (under different titles) since June 3, 1936 and Goldman since March 29, 1951. The issue is whether they are to be paid at the prevailing rate of wage under section 220 of the Labor Law. Foy was one of the petitioners in the proceeding which was decided by this court in 1952, sub nom. Matter of Corrigan v. Joseph (304 N.Y. 172). Goldman was
The first step is to examine the Corrigan case in order to ascertain whether it is determinative of the issue which is here presented. Foy and others instituted an article 78 proceeding against the City Comptroller, the City Treasurer, the Budget Director and the Board of Transportation to compel payment to them at the prevailing rate of wage under the ruling in Matter of Gaston v. Taylor (274 N.Y. 359), beginning in 1938. That demand was met by the contention on the part of the city that these were graded employees under the Civil Service Law, and as such were not comprehended within section 220 of the Labor Law (Wood v. City of New York, 274 N.Y. 155). This court held in the Corrigan case that from the time when these employees were effectively graded they were not entitled to be paid the prevailing wage under section 220 of the Labor Law. The parties to the instant proceeding do not now question that the grading of civil service employees in the competitive class is inconsistent with their being paid the prevailing rate under section 220.
The issue on the present appeal is crystallized by the following language from the opinion in Corrigan by Judge LEWIS, as he then was: "We thus reach the question which prompted the dissent by two Justices of the Appellate Division, viz., the date upon which the Municipal Civil Service Commission, by resolution, effectively graded appellants' positions." (p. 183.)
The answer to that question was held to have been supplied by subdivision 2 of section 11 of the Civil Service Law. The preceding subdivision of that section empowers the Municipal Civil Service Commission to "prescribe, amend and enforce rules for the classification of the offices, places and employments in the classified service of said city, and for appointments and promotions therein and the examinations therefor". Subdivision 2, with which we are immediately concerned, contains the following provision which is material to the present controversy: "Such rules so prescribed and established, and all regulations for appointment and promotion in the civil service of said cities and any subsequent modification thereof, whether prescribed under the authority of a general law or of any special
In May, 1938, a resolution by the Municipal Civil Service Commission purported to reclassify the positions of employees of this character, and authorized fixation of the maximum and minimum compensation of their wage or salary grades at levels to be established by the Board of Transportation and to be approved by the Municipal Civil Service Commission. That resolution was ratified by the Mayor on June 2, 1938 and by the State Civil Service Commission on July 1, 1938. After noting these circumstances, this court held in Corrigan that inasmuch as no specific wage schedule had been adopted by the Board of Transportation when that resolution was enacted by the Municipal Civil Service Commission, approval by the Mayor and the State Commission in advance of the adoption of a specific wage schedule was nugatory. The Mayor and the State Civil Service Commission could not delegate their power to approve wage scales to the Board of Transportation, nor could they ratify acts of the Board of Transportation before they had been performed; in order to comply with subdivision 2 of section 11 of the Civil Service Law, it was necessary that specific wage scales should have been adopted by the Board of Transportation, this court held, before they could be approved by the Mayor and the State Commission. Corrigan decided that these employees were not effectively graded by the Municipal Commission's resolution of May, 1938, and that they (including present petitioner Foy) were entitled to receive the prevailing rate of wage under section 220 of the Labor Law without being barred by the Municipal Commission's ineffective grading of them in 1938. Corrigan held that they were barred, however, by a subsequent grading resolution adopted by the Municipal Commission December 29, 1942 and approved by the Mayor February 2, 1943 and by the State Civil Service Commission on February 25, 1943. This resolution, like the one of 1938, provided that wage scales were to be established by the Board of Transportation and approved by the Municipal Civil Service Commission. There was a difference, however. Meanwhile specific wage grades had been
Foy recovered at the prevailing rate from July, 1938 until February 25, 1943 in the Corrigan case, but was defeated insofar as he claimed for a period after the latter date. He has now commenced another article 78 proceeding to recover at the prevailing rate for the period after February 25, 1943. That is to say, he is now suing for that part of the relief which he sought but was denied in the Corrigan case.
Foy attempts to escape the bar of that adjudication on the basis that the Municipal Civil Service Commission was not a party in the Corrigan proceeding. That did not stop him from taking advantage of the final order in Corrigan insofar as it allowed him to recover at the prevailing wage rate for the period between July, 1938 and February 25, 1943. This court directed that he recover for that period in spite of the Municipal Civil Service Commission's invalid grading resolution of May, 1938. The circumstance that the Municipal Civil Service Commission was not before the court did not prevent him from recovering. The Civil Service Commission's grading resolution was not avoided on the ground that it was arbitrary — in which event it would stand unless directly attacked in an article 78 proceeding against the commission — but it was held to be null and void on procedural grounds in that it had not been approved by the Mayor or State Civil Service Commission after specific wage scales had been established, in violation of subdivision 2 of section 11 of the Civil Service Law. Having neither force nor effect, the 1938 resolution of the Municipal Commission could be attacked collaterally; it did not need to be vacated; it simply did not operate as a bar against the fixation of the prevailing rate of wage by the Comptroller to be paid to Foy and the other employees who were parties to that proceeding. The footnote subjoined to page 186 of the opinion by Judge LEWIS that the commission's grading resolutions could not be challenged on the ground of arbitrariness except in a proceeding to which the commission was a party, did not relate to that part of the Corrigan decision which directed payment at the prevailing rate of wage until February 25, 1943, notwithstanding the absence of the commission as a party. The significance is that the effect of the Corrigan final order as res judicata against Foy is not affected by the absence of the Municipal Commission as a party to that proceeding.
This principle has been repeatedly enunciated by the New York Courts. (Matter of McLean v. Jephson, 123 N.Y. 142 ; Matter of Long Is. R. R. Co. v. Hylan, 240 N.Y. 199 ; People ex rel. New York Cent. R.R. Co. v. Limburg, 283 N.Y. 344 ; see Matter of Beckmann v. Talbot, 278 N.Y. 146, 149, 152 .) It is stated (73 C. J. S., Public Administrative Bodies and Procedure, § 146) as follows (p. 480): "Notwithstanding the rule against collateral attack, a decision [of an administrative body] may be subject to such attack where it is absolutely void; and, since the jurisdiction of an administrative board or agency consists of the powers granted it by statute, a determination is void and subject to collateral attack where it is made either without statutory power or in excess thereof. Accordingly, administrative decisions may be collaterally attacked as void for want of jurisdiction".
Nothing more than this was held in Matter of Golden v. Joseph (307 N.Y. 62, 68) or in Matter of Don v. Joseph (1 N.Y.2d 708).
Matter of Corrigan v. Joseph (304 N.Y. 172, supra) operates as res judicata against the present claim of John Foy.
The question regarding petitioner Goldman is whether the precedent of the Corrigan case disposes of his claim under the
The situation here is different from that in the Williston Park case. The notice of hearing which was published concerning the grading effective February 25, 1943 contained the following recital concerning the adoption by the Board of Transportation of these wage rates:
This language necessarily incorporated by reference the several scheduled rates which had been adopted by the Board of Transportation. It was published as part of the notice.
This point was raised in this court in the Corrigan case, contrary to respondents' present contention, as appears from page 36 of the Connelly, Remelius et al. brief, nor did it escape the attention of the court when Matter of Corrigan v. Joseph was decided.
This question was decided in the Corrigan case. It is the reasonable view, in any event, that the notice of hearing on the Municipal Commission's 1943 resolution, which was published, did refer to the wage grades as promulgated and in operation. Such publication complied with subdivision 2 of section 11 of the Civil Service Law.
The assertion at folios 59-60 of the amended petition that at the hearing which preceded the adoption of the resolution effective February 25, 1943 the commissioners refused to hear or consider any discussion of the question of any specific amount of maximum and minimum compensation as constituting a salary grade, is not borne out by the excerpts from the minutes which are attached to the petition and marked Exhibit G. It is evident that the presiding commissioner tried to discourage extended discussion on specific wage items, but he did not preclude it.
The proceedings taken subsequent to the Corrigan decision do not affect the issue. Regardless of whether the procedure in these instances subsequent to Corrigan complied with subdivision 2 of section 11 of the Civil Service Law, it could not have the effect of restoring petitioners' right to receive the prevailing rate of wage which had existed prior to February 25, 1943 when these positions were first effectively graded. These subsequent proceedings raised the wages of these employees, who are not in position to complain of increases in their compensation. If these resolutions were rescinded, as Justice COHN pointed out in his opinion at the Appellate Division (285 App. Div. 669, 677, supra), the wages of petitioners would revert to the lower amounts fixed by the scale effective February 25, 1943.
The order appealed from is reversed and the amended petition dismissed. The question certified is answered in the negative.
This order should be affirmed, so that we may arrive at a result consistent with the rulings in Matter of Corrigan v. Joseph (304 N.Y. 172), Matter of Golden v. Joseph (307 N.Y. 62) and Matter of Don v. Joseph (1 N.Y.2d 708). In the Corrigan case this court dealt with the claims for prevailing wages of these "Car Maintainers" in the transit system. The holding in Corrigan was that a 1938 Municipal Civil Service Commission grading resolution as to these positions was entirely void for various reasons and that, accordingly, the right to prevailing wages was not destroyed. In the same Corrigan case we held, however, that a 1943 Municipal Civil Service Commission resolution was on its face a wage scale fixation for these jobs and that, accordingly, prevailing wages could not be awarded for any period after the 1943 resolution. However, again in Corrigan, we made clear (see note at bottom of 304 N.Y. 186) that this 1943 resolution would be subject to attack, on appropriate grounds, in a proceeding like the present one with the Civil Service Commission as a party (it was not such a party in the Corrigan case). The present proceeding is against the commission itself. The undenied allegations of the petition and the supporting documents show conclusively that the 1943 resolution was void, as both courts below have now held, since that resolution did not state what the wage rates were to be thereunder. There is no showing of any other valid resolution fixing wages other than prevailing wages for these employments. It
The order should be affirmed, with costs.
Order of Appellate Division and that of Special Term reversed, with costs, and the amended petition dismissed. Question certified answered in the negative.