Leary v. Philadelphia , 314 Pa. 458 ( 1933 )

I am unable to agree with the reasoning or the conclusion reached by the majority in this case. In order to make my position clear, it is necessary to restate the facts, because to my mind several material features of the case have been omitted or not given their proper weight in the majority opinion.

Under the civil service provisions (Article XIX) of the Philadelphia Charter Act of June 25, 1919, P. L. 581, patrolmen may be appointed, except in an emergency, only from lists of those eligible, compiled after competitive examination by the civil service commission of the city. On August 14, 1931, Lemuel B. Schofield, then director of public safety, requested the civil service commission to hold an examination and provide him with an eligible list in order that he might fill a number of vacancies in the quota of patrolmen — at that time 4,530 — before his term of office should expire on January 1, 1932. Because of the delay attendant upon the examination and grading of the applicants, this list was not delivered to Director Schofield until December 14, 1931. No appointments were made to the police force between August 25th and December 15th, and there were on the latter date 179 vacancies in the ranks of patrolmen. Neither during that time nor during the remainder of the year was there any emergency requiring the appointment of additional patrolmen, nor was there any legal obligation upon the director of public safety to do so.

In the meantime, on December 10th, it had become evident to the municipal authorities that, because of the financial condition of the city and the undesirability of raising the tax rate, it would be necessary to cut the appropriations of the various city departments for the coming year. On December 14th, the same date that he received the eligible list from the civil service commission, Director Schofield proposed to the finance committee of the city council, at a session devoted to the preparation of the city budget for 1932, that a saving of over $800,000 be effected by the reduction of the number of patrolmen from 4,530 to 4,400, and by similar reductions in the fire department and other subordinate divisions of the department of public safety. This recommendation was immediately adopted by the finance committee and was incorporated in its report on the budget on December 29th; the budget ordinance, containing these reductions, was passed by council on December 31st and was signed by the mayor on the same day.

Nevertheless, although he had already recommended thereduction of the number of patrolmen by 130, and knew that hissuggestion had been accepted by the finance committee, Director Schofield proceeded to make appointments from the list furnished him by the civil service commission, and he thus filled, between December 15th and the end of the year, all of the 179 vacancies existing on December 15th. Of these appointments two were made on December 29th, 42 on December 30th, and eight on December 31st. He actually filled 50 vacancies after council had acted upon his own recommendation to reduce the force. All these appointments were provisional only; section 15, of Article XIX, of the Charter Act requires that all new appointments be for a probationary period of three months, and provides that "if during that period the service of that officer or employee is unsatisfactory, the appointing officer shall notify him in writing that he will not be retained in the public service after such three months' period. If not so notified, his appointment shall become permanent at the end of the three months' probationary period." The discharge of appointees during the probationary period is provided for by the rules of the civil service commission (which by section 13, of Article XIX, have the force and effect of law), which state: "A probationer may be removed at any time within the three months by the same procedure prescribed for the removal of employees who have received final appointment." The method of removing policemen who have completed their probationary period and become permanent employees is prescribed in section 18, of Article XIX, which provides: "No police officer or fireman, except those dismissed during probationary period, shall be removed or discharged, except for cause, upon written charges, and after an opportunity to be heard in his own defense. Such charges . . . . . . shall, within thirty days after filing, be heard, investigated, and determined by the commission."

Having thus filled every available vacancy in the quota for 1931 of 4,530 patrolmen by 179 new appointments in his last two weeks in office, Director Schofield was required by the action of council, approved by the mayor, to reduce the force by 130 men to 4,400, in order to meet the provisions of the budget for 1932. This he attempted to do by peremptorily discharging — not a single one of the probationers just appointed — but 130 permanently appointed service men, whom he hastily picked by examining the records of about one-half of the patrolmen. On December 29th he had letters printed, which on December 31st were sent to the discharged men, including plaintiff, in notification; in them, it was stated that the discharge was an honorable one and was necessary because of the reductions in the budget of the department for 1932. In his testimony Director Schofield stated, as his reason for choosing the men he did, that he wished to separate from the force those men whom it could "best afford to lose." However, the records of the discharged men, which were printed with the testimony, show that none were probationers, while some were veterans of 18 or 19 years' experience, that among them was one who had won in the previous year the annual public award for the outstanding feat of bravery on the police force, and that others had absolutely clear records. The evidence amply supports the finding of the learned trial judge that the appointment by the director of probationers when he knew the force would have to be reduced was a mere subterfuge resorted to by him in order that he might later discharge, upon the pretext of economy, men whom he could not otherwise remove from the service and whom he wished to dismiss for personal reasons.

On January 14, 1932, the president of the civil service commission, without consultation with the other two members of the commission, sent a form letter to the city controller, approving the separation from the police force of the 130 men discharged by Director Schofield. This was done because such approval was necessary in order that the city payroll be not held up. On January 19th, the new director of public safety, Kern Dodge, who had taken office on the first of the year, sent to the civil service commission, at its request, a new list of the men discharged, together with their records. At that time, Director Dodge testified, he approved the action of his predecessor because of the bad records of the men discharged, although he admitted that he made no check or comparison of their records with those of the others remaining on the force. In accordance with the rules of the civil service commission, these men, since they had been honorably discharged, were placed on a "preferred list," to which preference was to be given in making appointments during the following year. However, because of the financial difficulties of the city, which continued throughout 1932, no appointments were made to the police force, although a number of vacancies occurred. Finally, on December 28, 1932, the civil service commission, after efforts to have the discharged men appointed to the existing vacancies had failed, and since their status as preferred applicants was about to expire, formally withdrew the letter sent by the president on January 14th and ordered the director of public safety to reinstate on the force all the men on the preferred list, creating vacancies by promotion, if necessary to do so. There were at this time 87 vacancies among the ranks of the patrolmen. With the order of the civil service commission the director of public safety refused to comply, and this action followed.

The decision of the court below was based on the ground that, inasmuch as there were more than 130 vacancies when Director Schofield proposed to abolish that number of positions, petitioner's position was not abolished by the budget ordinance putting that proposal into effect, and, therefore, the discharge of petitioners was not, in fact, made for reasons of economy, but merely to make way for a probationary appointee of the director. For such reason, the court held, the director was without authority to dismiss petitioner, and he could lawfully be removed from his position only by the civil service commission, following the procedure established in Article XIX of the Charter Act.

It would at once seem that this denial of the right of the director to remove patrolmen whom he had the power to appoint, and the giving of the power of removal to the civil service commission, as provided by the Charter Act, is in direct violation of the provision of Article VI, section 4, of the Constitution, that "Appointed officers, other than judges of the courts of record, and the Superintendent of Public Instruction, may be removed at the pleasure of the power by which they shall have been appointed." However, as we have often said, this provision applies only to officers in whose offices are vested important public duties and functions (Houseman v. Com., 100 Pa. 222; Arthur v. Phila., 273 Pa. 419; see Richie v. Phila., 225 Pa. 511, and 37 Pa. Super. 190), not to mere subordinate ministerial agents or employees, who are petty officers, and therefore subject, as to appointment and removal, to legislative regulation: Com. v. Black, 201 Pa. 433; see Duffy v. Cooke, 239 Pa. 427; Georges Twp. School Directors, 286 Pa. 129. Thus, in Com. v. Black, we expressly held that a policeman of a third-class city, who was appointed by the mayor, could not be removed by the mayor without the consent of the city council, inasmuch as the governing act of assembly required such consent for dismissal. The case is directly in point, and it must therefore be regarded as settled that, so far as petty ministerial officers such as policemen are concerned, civil service statutes regulating the method of dismissal are effective and not in contravention of the Constitution.

The opinion of the majority is based upon the ground that as the quota of patrolmen was full on December 31, 1931, it was necessary to discharge 130 patrolmen in order to come within the limits fixed for the year 1932, and the removal of petitioner and those discharged with him was thus dictated by the abolition of 130 positions. Under these circumstances, it is held, where dismissals must be made in order to reduce the number of employees, civil service limitations upon the discharge of employees have no application, and Director Schofield, as the appointing officer, had the power to remove those whom, in the exercise of his discretion, he chose. The principle thus relied on is well established; since the number of patrolmen had to be reduced for reasons of economy, the director, as the appointing officer, had the right to remove, without the presentation of charges and a hearing, as many men as was necessary. I cannot agree, however, that this power vested in the director gave him any authority to act as he did in the instant case. As I see it, his action was not a mere breach of discretion, but an attempt to accomplish by apparently legal means that which he had no right or power to do.

When, with the approval of the budget ordinance on December 31st, the director had to reduce the number of policemen by 130, there were, in the ranks from which he had to choose, 4,351 permanent service patrolmen, and 179 new probationary patrolmen. As provided in the Charter Act, these new men, until after they had completed a three months' probationary period, could be removed without trial. I would hold, therefore, that when it became the duty of the director to reduce the force, it was incumbent upon him first to discharge those who had not yet become permanent employees of the city, and who could in any event be removed without a trial. Since the number of probationers exceeded the number by which the force was to be reduced, all the removals should have been made from among them. When the director, instead of removing 130 probationers — who, under the circumstances, should never have been appointed in the first place — attempted to remove 130 veterans, he exceeded the right of choice given to him. I think he had no right to do what he did, and that his action in attempting to remove petitioner should be held illegal and of no effect.

In my opinion, Director Schofield's action was a clear violation of the civil service provisions of the Charter Act. The most important principle and fundamental object of all civil service laws is the protection of public servants in their employment and the prevention of their removal therefrom by unfair means. If broken down in this primary respect, such laws will have no value. As already shown, the civil service provisions of the Charter Act give complete protection, so far as removal without trial is concerned, to the classes of public servants named therein. The only exception to this protection is that which results from necessary reduction of personnel for reasons of economy. But certainly this well-known principle should not be unnecessarily carried to the extent of destroying the basic feature of the Civil Service Law. That is exactly the result of this decision sustaining the action of Director Schofield, because he deliberately took from the rolls of his department men who were protected in their employment by the Civil Service Law, while at the same moment keeping on those rolls a greater number of men who did not have that protection, but were probationers, subject by the terms of the Civil Service Law itself to removal without trial and without the assignment of any reason. The action of the director was destructive of the fundamental object of the law. Under the facts of this case I would hold that it was the director's bounden duty to remove from the ranks of the probationers a sufficient number to comply with the mandate of the city council, and that his action in removing veteran employees protected by the civil service, even under the pretense of having done so for reasons of economy, was illegal and of no effect.

Nor can I agree with the majority in holding that the judgment must be reversed because there is no appropriation for plaintiff's salary, and that to order his reinstatement would be to enforce a liability against the city without an appropriation having been made to meet it. No such question of payment is involved in the instant proceeding; the question now before us is whether plaintiff is entitled to reinstatement, not whether he can, if reinstated, obtain payment for his services. Whether plaintiff can require the city to pay him for the period of his improper suspension is in this action entirely immaterial. The sole question here is the right of the plaintiff to be returned to an office from which he was never legally removed. To grant the plaintiff the mandamus which he seeks would not be holding the city responsible for the wrongful act of the director, but would merely restore him to the place from which the director had no power to remove him. This argument of the majority seems to me a clear misapplication of the rule that a municipality is not to be visited with liability for the wrongful acts of its representatives or employees. In Scibilia v. Phila., 279 Pa. 549; Devers v. Scranton, 308 Pa. 13, and Szilagyi v. Bethlehem, 312 Pa. 260, relied upon by the majority, it was attempted to hold the defendant municipality liable in damages for the torts of its officers and employees done in the performance of a governmental function; it is well settled that this cannot be done. The other case relied upon by the majority, Keim v. United States,177 U.S. 290, is not, in my view, even authority for that proposition; the Supreme Court of the United States there held that "In the absence of specific provision to the contrary, the power of removal from office is incident to the power of appointment," and that therefore the discretion of an appointing officer in removing a subordinate clerk on account of inefficiency was "beyond review in the courts either by mandamus to reinstate him or by compelling payment of salary as though he had not been removed." Here, of course, there is specific statutory provision regulating the power of the director of public safety to remove police officers. The principle of our cases cannot logically be so extended as to deny one wrongfully removed from office the right to reinstatement. The enforcement of that right by an action of mandamus is a familiar remedy (Dillon, Municipal Corporations [5th ed.], section 487; 19 R. C. L. 940), which we should not thus casually destroy. Since, as I see it, Director Schofield had, by the plain provisions of the Charter Act, no power to discharge the plaintiff in the way he did, his attempt to do so was absolutely nugatory, and plaintiff should be reinstated. So far as the instant proceeding is concerned, this would place no liability upon the city. It means only the return of the plaintiff to the position from which he was never legally discharged.

For the reasons given above, I would affirm the judgment rendered below.