Truitt v. Philadelphia

Opinion by

Mr. Justice Mestrezat,

In August, 1905, Harry W. Truitt, the plaintiff, passed a successful examination before the civil service commission of the city of Philadelphia for appointment to the position of superintendent of squares in the city, and on the eighteenth of that month was placed on the eligible list for appointment to the position. In October of the same year he was appointed to the office of superintendent of squares by the director of the department of public safety, and was assigned to duty as superintendent of Rittenhouse square. He continued to perform the duties of this position until October 14, 1907, when he was notified by letter from Henry Clay, director of public safety, of his “ dismissal from the position of superintendent of square, bureau of city property, for the betterment of the service, the same to date from Thursday, October 17, 1907.” Since the date of this notice the mayor and the director of public safety have refused to recognize the plaintiff as a superintendent of squares, and he has been denied the right to perform the duties of such position.

On November 18, 1907, Truitt presented his petition to the court below, setting forth the above facts and praying for a writ of alternative mandamus to compel the mayor and director of public safety to place his name on the roll of superintendent of squares and to recognize him as a superintendent of squares of the city, alleging as reasons therefor that “ he has been unlawfully and illegally refused the right to act as superintendent aforesaid by said Henry Clay, director aforesaid,” and because the mayor and director “ have failed and refused to recognize and cause to be recognized your petitioner as superintendent of squares aforesaid.” To this writ the defendants made return and filed an answer. The answer, like the petition, contains many irrelevant and immaterial averments which need not be noticed in disposing of the case. The answer concedes the appointment and service of the plaintiff as superintendent of squares in the city as alleged in the petition. It denies, however, that he performed his duties according to law and the rules of the department of public safety, and avers certain causes which are alleged to be sufficient to justify the plaintiff’s removal from office. It further avers that the notice given by Director Clay to the plaintiff was in full compliance with the act of assembly regulating the dismissal of employees from the civil service; and “ that the said letter contains and is a written statement of the reasons for the dismissal of the said petitioner from the said office.” The answer further avers that if the court should be of opinion that the reasons for dismissal were not sufficiently explicit, the action upon the petition would be without practical effect, inasmuch as ample causes for the dismissal of the plaintiff from the office and reasons therefor exist. The learned court below awarded a writ of peremptory mandamus, President Judge Willson filing a clear and convincing opinion which amply vindicates the correctness of his conclusion.

The legislature of Pennsylvania passed an Ac.t approved March 5, 1906, P. L. 83, entitled: “ An act to regulate and improve the civil service of the cities of the first class in the commonwealth of Pennsylvania, making violation of its provisions to be a misdemeanor, and providing penalties for violations thereof.” The act is very comprehensive and contains ample provisions regulating the subject indicated in its title. It provides that appointments to and promotions in the civil service of cities of the first class shall only be made according to qualifications and fitness, to be ascertained by examination, which so far as practicable shall be competitive. No officer, clerk, employee or laborer in the civil service of the city government can be appointed, transferred, reinstated, promoted, or discharged in any manner or by any means other than those provided in the act. Penalties are prescribed for violations of its provisions. The act was manifestly intended to make full provision for the appointment and discharge of officers and employees in the civil service of the city, and to definitely prescribe the manner of exercising such authority, as well as to protect faithful and efficient appointees against removal for a political, religious or other insufficient cause. Prior to the present act dismissals from the civil service of Philadelphia were regulated by the Act of June 1, 1885, P. L. 37, which provided, inter alia, that “ the directors or chief officers of departments may by written order giving their reasons therefor, remove or suspend subordinate officers and clerks, provided the same is not done for political reasons; ” and that “ no policeman or fireman shall be dismissed. . . . except by the decision of a court and a trial upon charges with plain specifications and the right of the accused to be present with sworn witnesses.”

The restriction or limitation placed upon the removal or dismissal of an officer or employee from the civil service of the city is contained in section 20 of the act of 1906, which is as follows: “No officer, clerk, or employee in the competitive class or in the noncompetitive class of the classified civil service of any city of the first class, who shall have been appointed under the provisions of this act, or of the rules made pursuant thereto, shall be removed, discharged, or reduced in pay or position except for just cause, which shall not be religious or political. Further, no such officer, clerk or employee, shall be removed, discharged or reduced, except as provided in section 8 of this act, until he shall have been furnished with a written statement of the reasons for such action, and been allowed to give the removing officer such written answer as the person sought to be removed may desire.” The same section provides — manifestly to show the public that the dismissal has been for a sufficient cause — that “ in every case of such removal or reduction a copy of the statement of reasons therefor, and of the written answer thereto, shall be furnished to the Civil Service Commission, and entered upon its public records.” By section 27 of the act it is provided that all officers or employees in the service of the city on March 1, 1906, shall be construed to have been appointed under its provisions, and shall hold their offices in accordance therewith.

The only question for consideration raised by the pleadings in this case is whether Director Clay complied with the act of 1906 in dismissing the plaintiff from his position of superintendent of squares. The legislature had the power to pass the act in question and legislate upon the subject: Commonwealth v. Black, 201 Pa. 433, and hence officials appointing to or removing from office or employment are required to comply strictly with the provisions of the statute.

It may be suggested that neither the court nor the officials in whom is lodged the power of appointment and removal can have any concern with the policy of the law or the reasons for its enactment. Those are questions which are solely for legislative consideration, and neither the court nor the officials can be permitted to question or deny the authority of the legislature to pass upon and determine them. The duty of the officer in appointing to or dismissing from the service of the city is to comply with the statute and in good faith yield obedience to its provisions, so that the intention of the legislature may be fully carried out. The purpose of the legislature in passing the act ivas, as its title shows, “ to regulate and improve the civil service of the cities ” to which it applies, and thereby obtain for the city faithful and efficient employees and protect them from removal for religious or political reasons. Legislation of a similar character has been enacted by the federal congress and by the legislatures of nearly every state of the union. It unquestionably has the approval of the best thought of the present day, and we have recently so declared in Commonwealth v. Black, 201 Pa. 433. In that case we said (p. 433): “ It is undeniable that much of the best recent thought devoted to municipal government tends to the elimination of politics and personal influences from consideration and the establishment as far as practicable of a tenure of good behavior for all subordinate and non-political positions.”

Recurring now to the question to be decided in this case, it is to be observed that the act of 1906 provides that an officer or employee of the city shall not be discharged “except for just cause, which shall not be religious or political.” Here is an explicit denial by the legislature of the right to remove any employee of the city except for the cause named in the act. So long as the employee is without that exception, he is immune from dismissal by any superior officer. The only ground which authorizes a removal from the service is a “ just cause,” and before the employee can be deprived of his position that must be made to appear. The whim or caprice of the superior officer are entirely inadequate to justify his action in dismissing an employee from the city’s service. The cause sufficient to warrant a removal must be personal to the employee and .such as to render him unfit for the position which he occupies : City of Rockford v. Compton, 116 Ill. App. 406. The statute denies specifically the right to remove for any religious or political cause. The cause must be substantial and one which affects the efficiency of the employee and the good of the service. Until such “just cause ” has been made to appear, the act of 1906 is a complete barrier to the dismissal of the employee.

The statute not only requires that a just cause shall exist to justify the removal of an employee, but it provides the way in which the incompetent or inefficient employee shall be discharged. No officer or employee shall be removed, says the act, “ until he shall have been furnished with a written statement of the reasons for such action, and been allowed to give the removing officer such written answer as the person sought to be removed may desire.” This language is explicit and not to be misunderstood. It is an emphatic declaration by the legislature prohibiting the removal of any employee except as authorized by its provisions. Before the removing officer exercises his authority to dismiss the employee, the former must give to the latter a written statement of the reasons for his intended action. In other words, the officer must state specifically in writing the cause or causes of the unfitness or incompetency of the employee to perform the duties of his appointment. He must designate wherein the employee is incompetent to perform the service or is unfaithful in the performance of his duties. This is a condition precedent, imposed by the statute, before the removing officer can dismiss the employee from the service. It is mandatory and the failure of the officer to observe this provision of the act will render the employee’s removal as abortive as if no cause had been assigned. The purpose of the statute in requiring a written statement of the reasons for dismissing the employee is that he may have an opportunity to meet and refute the allegations of incompetency, unfitness or unfaithfulness alleged against him, and thereby prevent his removal. Not only must the removing officer assign his reasons in writing for his intended action in dismissing the employee, but, before acting, he must also give to the employee an opportunity to answer the charges preferred against him. If he can satisfactorily answer the reasons assigned for his removal and thereby show that there is no just cause for his dismissal from the city’s service, the removing officer is prevented by the statute from dismissing him from the service. If the employee in his answer to the specifications of incompetency or unfitness fail to meet and refute the charges contained in the written statement furnished him by the removing officer, there will then exist a “ just cause ” for his dismissal, and the statute authorizes the removing officer to discharge him from the city’s service. The statute, therefore, provides explicitly that an employee can only be removed for just cause, and in equally plain terms regulates the manner in which the dismissal must be accomplished.

The dismissal of Truitt from the city’s service was, as we have seen, by the letter of Director Clay, written October 14, 1907. The only reason assigned for the director’s action was “ for the betterment of the service.” It is apparent, we think, that the reason assigned by the director was not such “ a written statement of the reasons ” for his action as the statute requires. The reason assigned is general, vague and indefinite, and wholly fails to meet the requirements of the statute. It is true, as claimed by defendants, that it is the reason that was assigned by some of the predecessors of the present incumbent in the office of director of public safety, but that is no argument in its favor or justification for its use under the civil service act of 1906. Such a reason defeats the very purpose of the act itself, which unquestionably was to protect a faithful and efficient employee from removal for a political, religious or other insufficient cause. It denies the employee an opportunity to answer his accusers by failing to disclose the accusations against him. How is he to make a “ written answer ” to the charges of unfitness or inefficiency, as required by the act, if the charges against him are not specifically set forth in the statement furnished by the removing officer? The allegation that the dismissal is for “ the betterment of the service ” is simply the declaration of the removing official, and in no sense is it a written statement of the reasons for removal within contemplation of the civil service act. In passing upon a similar reason assigned for removing certain officers under the civil service law of the federal government, Jackson, J., in Butler v. White, 83 Fed. Repr. 578, said: “ Now, it seems to me no grounds have been shown for their removal, except ‘ for the good of the public service.’ This is a reason that was employed by the officers of the government, when they desired to remove anyone that was obnoxious to them, long prior to the passage of the civil service act. It is too general, vagué and indefinite to authorize the removal of an officer under existing law. By the other terms and provisions of the rule .just referred to, he has to be confronted with the charges that are made against him, and to have full notice and an opportunity to make defense.”

The demurrer to the answer admits the truth of the facts well pleaded, but not facts immaterial or irrelevant to the issue. Whether the plaintiff was justly open to the charges made against him is not involved in this litigation, and hence was improperly averred in the defendants’ answer. Under the well-established rules of pleading he was not required to deny, and was clearly right in not denying, the truth of the charges contained in the answer. The application for the mandamus and reinstatement was based upon the averment in the petition that the plaintiff was not furnished a statement of the reasons for his dismissal and given an opportunity to answer them, as required by the act of 1906. The answer of the defendants should have admitted or denied the averment in the petition, and the demurrer admitted only such facts in the answer as were material and relevant to that issue.

It is contended by the defendants that a peremptory mandamus should not be awarded to reinstate the plaintiff in his position, because the answer to the alternative writ discloses a sufficient cause for the plaintiff’s dismissal from the service, and, further, that his reinstatement would have no practical effect, inasmuch as the director could immediately dismiss him. This position is wholly untenable. The plaintiff is asserting a right conferred upon him by an act of the legislature. He claims, and the pleadings disclose, that he was dismissed from the service of the city in direct violation of the civil service act of 1906. His application to the court for a mandamus requiring his reinstatement is based upon the ground that he was unlawfully dismissed from the service, and, therefore, he should be reinstated. It is not an answer to the alternative writ for the defendants to aver that the plaintiff was guilty of conduct which would warrant his removal. The statute provides that the cause shall be properly assigned and furnished him by the removing officer before his removal, and that he be given an opportunity to answer. It is not sufficient for the removing officer to dismiss an employee from the service without assigning a cause, and, when subsequently brought into court on a demand for his reinstatement, to assign the cause. The statute does not so provide, and hence the court cannot sustain such an answer by the removing officer to an alternative writ of mandamus. Until the employee has been confronted with the charge and has been afforded an opportunity to give a written answer, the removing officer cannot declare that a just cause of removal exists.

The other reason assigned by the defendants, that it will be a vain thing for the court to reinstate the plaintiff because sufficient reasons for his removal exist and the director will remove him, is also without merit. To sustain that proposition we must hold that Director Clay and his superior officer, the mayor, will discharge the plaintiff regardless of the sufficiency of his answer and explanation of the charges preferred against him. This would be a palpable violation of the statute and of the oath of office of both officers. We will not, therefore, assume for one moment that those officials, when judicially advised of the proper interpretation of the civil service act, will not obey its command. When Director Clay furnishes the plaintiff a written statement of the reasons for the proposed removal, the latter will have an opportunity to reply. It will then be the duty of the director to make an investigation and determine whether the accusations against the officer or employee are well founded or groundless. He cannot, as a matter of course, discharge him. He must act upon the facts as they are made to appear to him, and if the plaintiff meets and refutes the charges against him, the duty of the director is to retain the plaintiff in the service of the city. If the charges are shown to be true, it is then equally the duty of the director to remove the plaintiff and protect the city against an inefficient or unfaithful employee. The argument, therefore, of the defendants’ counsel that the reinstatement of the plaintiff will be vain because the director will at once discharge him reflects upon the director as an officer, and if we were to so hold we would be assuming that the director would not in good faith, and as required by his official oath, make a full and fair investigation of the charges preferred against the plaintiff and base his subsequent action in removing, or refusing to remove him, solely upon the facts as disclosed by the investigation. The statute imposes this duty upon the director, and we cannot assume that it will not in good faith be performed.

We are of opinion that the plaintiff was illegally removed from his position as superintendent of squares in the city of Philadelphia, and that the court below was right in issuing a peremptory writ of mandamus requiring the defendants to reinstate him in the position from -which he was removed.

The judgment is affirmed