With the important and far-reaching decision which the court is here making I cannot agree. I am persuaded that a construction has been given to section 6 of article V of the State Constitution which its words cannot be made to bear.
A number of eligibles on a civil service promotion list, all honorably discharged veterans, applied to the Municipal Civil *Page 384 Service Commission of the City of New York for disabled veterans' preference. As to each of those here involved, the United States Veterans' Administration certified (1) that he had sustained a disability in the war and (2) that that disability was a present and existing one. On the strength of that certification, the Civil Service Commission granted the requested preference. Others on the list — non-disabled veterans and nonveterans — protested that action and brought this proceeding under article 78 of the Civil Practice Act to review the Commission's determination; some of those accorded a disabled veterans' preference intervened as defendants. The courts below annulled the Commission's determination, holding that a disability to be recognized as such must be a disability which the Veterans' Administration has rated at 10% or more.
The appeal calls for construction of the recently adopted constitutional amendment relating to civil service appointments and promotions and, in brief, requires us to define the meaning of the word "disability" contained therein and to determine whether the certificate of the Veterans' Administration to the effect that the applicant was disabled in war and that his disability is present and existing entitles him to a preference or whether the certificate must establish that the applicant has a disability of at least 10%.
Our problem is illumined by a consideration of the 1929 constitutional provision, the predecessor of the current amendment. That 1929 amendment (art. V, § 6) granted "honorably discharged soldiers, sailors, marines or nurses of the army, navy or marine corps" civil service preference if the veteran (1) was "disabled in the actual performance of duty in any war, to an extent recognized by the United States Veterans' Bureau" and (2) the "disability exists at the time of his or her application for such appointment or promotion".
Provisions of the 1929 amendment and its companion statute (Civil Service Law, § 21) were brought before this court for construction in 1934, in Matter of Potts v. Kaplan (264 N.Y. 110,113), on certified questions, one of them in this form: "Should the word `disability' as used in section 21 of the Civil Service Law, be interpreted as meaning a disability that materially impairs the applicant's earning capacity?" The court answered that question in the negative, declaring, in the course of its opinion, that *Page 385
1. On the question whether the veteran had been disabled in war, the Veterans' Bureau's certification was conclusive and nonrebuttable. Thus, the court wrote (p. 117): "the Civil Service Commission and the appointing officer must accept at their face value certificates issued by the Veterans' Bureau or its successor, the Veterans' Administration. * * * For the purpose of determining the fact of disability in war, the State has designated that body as its agent. That the applicant whose name appears on such a certificate has been disabled in actual performance of duty in war and that the nature or character and degree of his disability were such as that body has recognized is evidence not subject to rebuttal. The certificate on these facts is conclusive."
2. As to the question whether the disability exists at the time of application, the court held that the determination of that matter was for the civil service authorities (p. 117).
3. In addition, the court supplied its own definition of the term "disability" as a guide to civil service commissions in ruling on whether a disablement existed at the time of application. First, it rejected the contention that the disablement must "impair earning capacity" and, then laid down, in these words, the requirement that to be a disability the condition must result in "Some lessening of bodily force or some disfigurement, even if unrelated to capacity for wage earning but present at the time of application for a preference" (pp. 117-118).
Presumably aware of that construction of the 1929 amendment, the electorate and the Legislature — in 1945 and 1946 — replaced it with the present constitutional provision and conformed the implementing statute (N.Y. Const., art. V, § 6; Civil Service Law, § 21; L. 1946, ch. 521). The present constitutional amendment grants preference to a member of the armed forces who served therein in time of war and
(1) "who was disabled therein to an extent certified by the United States veterans administration", and
(2) "whose disability is certified by the United States veterans administration to be in existence at the time of his or her application for appointment or promotion".
In the implementing Civil Service Law provision, a "disabled veteran" is defined as one who has "a disability which is *Page 386 certified by the United States veterans' administration to have been incurred in time of war and to be in existence at the time of application for appointment or promotion".
In terms of the Potts case (supra), the effect of the new provision is (1) to leave unaltered the 1929 requirement that the Veterans' Administration is to certify whether the veteran was disabled in war; (2) to authorize the Veterans' Administration — instead of the various local civil service authorities — to determine whether there is an existing disability; and (3) to render certification by the Veterans' Administration conclusive as to both the existence of a disability and that it was war sustained. (See, also, Matter of Winternitz v. Morton,272 App. Div. 339, 340, affd. 297 N.Y. 541.)
Read as they were written, the Constitution and its implementing statute command that a preference be accorded a veteran for civil service purposes upon producing a certificate of the Veterans' Administration stating that he was disabled in the war and that that disability is in existence at the time of his application for appointment or promotion. No other requirement or test is imposed upon a veteran who seeks to qualify for such preference. Neither the language nor the history of the enactments suggests that distinctions are to be drawn between lesser and greater disabilities, or that the courts may review or disregard the certification that there is a "disability now in existence".
Of course, the certificate must affirmatively recite that a disability exists, and that requirement is not satisfied, we recently held, by the confusing and equivocal recital that there is a "0% disability". (See Matter of Winternitz v. Morton,supra.) As a result of the Winternitz decision, new certificate forms were prepared, and those are the forms now in use. They contain four questions. The first two specifically relate to the facts which, the Constitution specified, are to be certified by the Veterans' Administration:
"1) Did the applicant sustain a war service connected disability?
"2) Is that disability now in existence?"
The other two questions are neither required nor suggested by the Constitution: "3) What is the disability?" and "4) If the percentage of disability is 10 or more, state percentage." *Page 387
In all of the certificates before us, the first two questions were answered in the affirmative. Nevertheless, petitioners contend that since the disability was not rated at 10% or more, the certificates do not establish appellants' rights to preference since they certify existing disabilities of a less degree than those necessary to entitle the applicants to Federal compensation benefits. No question is raised by them as to the propriety or sufficiency of the certification insofar as it establishes that the disablement occurred in war. Their argument is that the Veterans' Administration has no authority to certify an existing disability of less than 10%, because that figure is the minimum percentage for Federal disability compensation, and, hence, that certifications of disabilities rated at "less than 10%" are tantamount to certifications of "0%", that is, no disability at all.
In my view, the language of both Constitution and statute is flatly opposed to such a conclusion. Nothing in either enactment requires — or even suggests — that any minimum degree of physical disablement has to exist at the time of application; to be significant, the disability must simply be certified by the Veterans' Administration to be presently in existence. In my judgment, the affirmative answers to the first two questions constituted categorical and unequivocal certification that there was a war disability and that it was presently in existence. Those were the only facts rendered operative and vital by the Constitution. The information sought by the other two questions, relating as they do to items irrelevant and inconsequential, are entirely superfluous and should be so regarded.
This court clearly held in the Potts case (supra), that the certification of the Veterans' Bureau was conclusive and nonrebuttable as to the one matter which the State had, by the current constitutional provision, then assigned to it for determination. The new constitutional provision, as already indicated, designates the Veterans' Administration as its agent to determine not only whether the disability was war sustained but also whether it is present and existing. On the basis of both reason and authority, the courts as well as the various civil service agencies are compelled to assign the same degree of conclusiveness to the certification that there is an existing disability *Page 388 as to the certification that it is service connected. Neither civil service agency nor court may go behind that certification to challenge the existence of the disability as certified by the Veterans' Administration.
Beyond that, even if we should look behind the certification and even if we should insist that the definition of "disability" formulated in the Potts case (supra) be satisfied before the Veterans' Administration may properly certify an applicant, I am persuaded that the appellants' certificates are valid.
First, the record discloses that the question relating to present disability is never answered in the affirmative by the Veterans' Administration's field agents unless the condition involves "some impairment of the organ or function affected." This information comes to us from the director of claims of the Veterans' Administration; in a letter which he sent to the Civil Service Commission, he wrote: "The certificates presently in use by New York State and local Commissions call, among other things, for a statement as to whether the veteran has a service-connected disability now in existence. When a veteran's disability is not rated at 10% or more and this question is answered in the affirmative it means that the veteran has a service-connected disability of some degree, however slight, in existence at the time the certification is made. Under the most recentinstructions issued to field stations by this office, thisquestion will not be answered affirmatively in such cases unlessthere is shown to presently exist some impairment of the organ orfunction affected. The disability may range in scope from one of extremely slight proportions to one falling just short of being evaluated at 10%. Unless the minimum requirement above outlinedis met the existence of disability will not be certified by thisAdministration." (Emphasis supplied.)
This furnishes a complete answer to the claim that the failure of the Veterans' Administration to rate a disability at 10% or more is tantamount to a finding that no disability exists as a matter of fact. Residual disabilities, presently existing, are, it is clear, typically and uniformly carried as "less than 10%"; that description is meant to indicate some lessening of bodily force, some impairment of functioning, in short, some disability.
Second, the definition of disability employed by the Veterans' Administration — "some impairment of the organ or function *Page 389 affected" — is practically identical with the test laid down in the Potts case (supra) — namely, "Some lessening of bodily force or some disfigurement" (264 N.Y., at p. 117). Thus, besides having satisfied the mandate of the Constitution, the certificates comply with the requirements of "disability" as defined and long recognized by this court.
Third, appellants do, in point of fact, have pragmatic and ascertainable disabilities. After our Winternitz decision (supra), they were rerated on the new-type forms, and their certificates now affirmatively indicate that they have existing disabilities. When it is borne in mind that twenty-eight other applicants were dropped from the disabled list during that rerating process, it becomes clear that the Veterans' Administration's standards are practical and meaningful. Only by ascribing illegal motives or capricious methods to that agency can we escape the conclusion that some basis existed for distinction between the two groups, and that the applicants who were retained as disabled do, in fact, suffer from existing disabilities.
Underlying the conclusion that only disabilities rated at 10% or more can be considered for present purposes is the view expressed in the opinion of the majority, that the Veterans' Administration "has no power to certify a grade of disability of less than 10%" (supra, p. 373; see, also, 273 App. Div., at p. 248). Such a view is based upon the assumption that the Veterans' Administration has power to deal only with matters touching on compensation and to rate veterans only for compensation purposes, which demands an evaluation beginning at 10% disability.
That is not so.
In the first place, as we have seen from a consideration of thePotts case (supra), the Veterans' Administration had the power to recognize and certify to the civil service authorities any disability that was service connected. Its degree or seriousness, whether it impaired "earning power", was of no consequence. Whether or no the veteran might be entitled to compensation depended upon other considerations which played no part in the Veterans' Administration's act of certifying the fact of disablement to the civil service agencies. Indeed, in thePotts case, some of the very certificates issued by the Veterans' Bureau referred to a "0%" or "less than 10%" disability *Page 390 (264 N.Y., at pp. 115-116), and, nevertheless, this court treated those certificates insofar as they recited the fact that the veteran had been disabled in war — as conclusive and "not subject to rebuttal" (264 N.Y. at p. 117). Certainly, that constituted unmistakable recognition of the authority of the Veterans' Bureau to issue the certificates which this court is now declaring are beyond its competence.
In the second place, while, as stated, for purposes of receiving compensation, a veteran must be disabled to the extent of 10% (Veterans' Regulation No. 3[a], promulgated under authority of Act of March 20, 1933, § 3; 49 U.S. Stat. 9), such 10% disability has meaning only so far as compensation is concerned; it is of no consequence or significance insofar as civil service preference is concerned. Such an award is related to impairment of earning capacity and unless there is a disability of at least 10%, compensation will not be given. But there is, of course, a difference between the allowance of a preference for civil service purposes and the grant of compensation. For instance — and I consider it of the highest significance — a veteran is given a preference in Federal civil service even though he does not receive compensation, even though, in other words, he does not have a rated disability of 10% or higher. This clearly appears from the Federal Veterans' Preference Act of 1944 (U.S. Code, tit. 5, § 851), which provides that Federal civil service preference is to be given to disabled veterans, "who have established the present existence of a service-connected disability OR who are receiving compensation". Thus, the mere existence of a war-connected disability entitles the veteran to a preference; receipt of Federal compensation, which at present demands at least a 10% disability, is not an additional requirement.
In short, the Veterans' Administration has a two-fold function: (1) in determining a veteran's eligibility for compensation awards, it is under the necessity of rating them as to disability in 10% multiples (Executive Order No. 6157; U.S. Code [1940 ed.], tit. 38, ch. 12, p. 3327 [Code of Fed. Reg., tit. 38, § 35.03]); (2) in determining — or helping in the determination of — their civil service standings, it is under the necessity of deciding whether they have any existing disability — not 10% — and *Page 391 evaluating that disability. (See, e.g., Federal Personnel Manual of United States Civil Service Commission [March 25, 1948], Table VII, ch. V1, pp. V1-26, V1-27.)
And if more be needed to establish the Veterans' Administration's competency to recognize and certify a disability of less than 10%, it is at hand. In so many words and by explicit language, the Veterans' Administration is given express authority — by virtue of a regulation which the United States Veterans' Administrator promulgated — to evaluate a disability at less than 10% "for purposes of Civil Service Preference". The regulation reads in this way (Code of Fed. Reg. [1946 Supp.], tit. 38, § 2.1158, as amd. Sept. 17, 1946; 11 Federal Register 10829): "(b) For the purposes of the 1933 and 1945 schedules, a disability under any diagnostic classification which does not meet the minimum rating schedule standard under that classification will be rated as no per cent, except for purposes of Civil Servicepreference, in which event an evaluation of less than tenpercent may be made." (1946 amendment emphasized.)
In the light of such a regulation, it is impossible to maintain that the Veterans' Administration lacked the power or competency to certify veterans as having a present disability merely because they were rated at less than 10%. If the court is correct in ruling that this regulation empowers the Veterans' Administration to certify the veteran's disability only to the Federal Civil Service Commission and does not endow it with authority to issue a similar certification to non-Federal civil service agencies, then one seeks in vain for any provision vesting the Veterans' Administration with authority to certify to such other bodies even a disability of 10%.
It seems to me that the court reaches the conclusion that it has only by rearranging the language of the constitutional amendment and then assigning to such language as rearranged a meaning never designed or intended for it. As the constitutional provision was written, a preference is accorded a member of the armed forces who served therein in time of war "and who was disabled therein to an extent certified by the United States veterans administration, and whose disability is certified by the United States veterans administration to be in existence at the time of his or her application for appointment or promotion". The phrase "to an extent", it will be noted, is used only *Page 392 in the first part of the provision and only in connection with disablement sustained in war. The court, however, does two things with that phrase. It first inserts it into the latter portion of the provision and thereby relates it to the present and existing disability there mentioned. And, second, it uses the phrase thus inserted as a basis for importing into the provision a requirement that the Veterans' Administration may not certify a disability unless such disability exists to an appreciable orserious extent, which, in turn, the court defines as a disability of 10%. There is, however, not the slightest suggestion in either Constitution or statute that, to entitle the veteran to the preference, he must be suffering from a serious disability or be receiving compensation from the Federal Government. Perhaps, to treat veterans who have minor ailments the same as those seriously handicapped may be considered unfair; perhaps, too, to treat non-disabled veterans who have served in the armed forces in time of war for one day the same — for purposes of preference — as those who fought in the field for years may likewise be considered undesirable. But that is precisely what the constitutional amendment provides — and a court may not rewrite it to accomplish what may appear to be a more desirable result.
To recapitulate:
(1) The Constitution and Civil Service Law command that preference be given honorably discharged veterans if they are certified by the Veterans' Administration to have existing service-connected or war-sustained disabilities;
(2) The Veterans' Administration has, in this case, certified such disabilities for each of the appellants;
(3) These certificates are conclusive and nonrebuttable, under the authority of the Potts case (supra), and cannot be attacked on the ground that they are based upon an improper definition of "disability";
(4) Even, however, if it were pertinent to review the basis on which the certificates were issued, they would stand, for the Veterans' Administration employs the same test in rating veterans as disabled as this court approved in the Potts case;
(5) A rating of "less than 10%" disability is warranted and represents something more than "0%" disability; *Page 393
(6) Such a rating of "less than 10%" is within the competency and authority of the Veterans' Administration to make; and, finally,
(7) Whether a veteran is receiving compensation from the Government or not is of no consequence whatsoever in determining his right to a civil service preference under the Constitution and the Civil Service Law.
To affirm in this case, we must hold that the Constitution and the Civil Service Law provide an honorably discharged member of the armed forces is entitled to a disabled veteran's preference only if the Veterans' Administration certifies that he has a present existing disability rated at 10% or more. To that I cannot subscribe.
The order should be reversed, and the petition dismissed, with costs in all courts.
LEWIS, THACHER and DYE, JJ., concur with CONWAY, J.; FULD, J., dissents in opinion in which LOUGHRAN, Ch. J., and DESMOND, J., concur.
Order affirmed.