McCoach v. Philadelphia

Opinion by

Mr. Justice Walling,

The plaintiff, David McCoach, has been a police officer of the City of Philadelphia for forty years and was a captain of police from 1902 until 1920. In the latter year charges were preferred against him, to which an answer was filed and the case heard by the civil service commission, who sustained certain of the charges and ordered the demotion of McCoach to the position of lieutenant. The order being enforced, he sought restoration to his former rank by a petition for a writ of mandamus, to which return was made, and the court below (jury trial being waived) heard the case, filed an opinion and made an order granting the petition; from which the defendant city and its proper officers brought this appeal.

The decision of the trial court was based upon its finding that no competent evidence was submitted to the commission in support of the charges. Such finding, if correct, might entitled petitioner to relief by mandamus had he been removed or discharged from the force; but no law seems to prevent the demotion of a policeman without formal proceedings before the civil service commission. Unless restrained by statute, a city may promote, demote or discharge a policeman at will, under the rule that the power which appoints may remove; but section 1 of article III of the Act of June 1,1885 (P. L. 37, 41), known as “The Bullitt Bill,” protected policemen and firemen from dismissal, except by the decision of a court of inquiry, created and acting as therein provided; this was reenacted by the Act of 1906, P. L. 94, 95 (which became a law because not returned by the governor within thirty days after the adjournment of the legislature), but was superseded by the more elaborate Act of June 25, 1919, P. L. 581, entitled “An Act for the better government of cities of the first class of this Commonwealth,” which, in addition to expressly repealing the Act of 1885 (reenacted by the Act of 1906, above referred to), repealed also the Act of March 5, 1906, P. L. 83, relied on by the court below, and provides in section 1 of article XIX (Act of 1919, P. L. 613), that “From and after the effective date of this article, all appointments, transfers, reinstatements, promotions, reductions, suspensions, removals and dismissals, in the civil service of such city, shall be made in accordance with the terms and provisions of this article and the rules prescribed thereunder.” This clearly leaves the Act of 1919 as the sole guide in matters like the present, in cities of the first class. Bearing in mind that what we are here considering is not an appointment, suspension, removal or dismissal, but simply a reduction in position and pay, let us see what the Act of 1919 provides in regard thereto.

By section 16 of the same article (P. L. 619), it is provided that “No person in the classified service or seeking admission thereto, shall be appointed, promoted, suspended, reduced or removed or in any way favored or discriminated against because of his political or religious opinions or affiliations. No inquiry in any application, examination or investigation shall relate to the religious or political affiliations of any person.” Under this section, plaintiff, being in the classified service, could not be reduced “because of his political or religious opinions or affiliations”; but, since the petition for the writ of mandamus does not aver he was reduced because of either of these reasons, we need consider that section no further.

The first paragraph of section 18 of the same article (P. L. 620) provides: “No officer, clerk or employee in the classified civil service of such city 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 during the probationary period, until he shall have been furnished with a written statement of the reasons for such action and be allowed to give the removing officer such written answer as the person sought to be removed from office may desire. In every case of such removal or reduction a copy of the statement of the reasons therefor and of the written answer thereto shall be furnished to the civil service commission and entered upon its public records,” If we assume, because of the general language used, that this paragraph relates to policemen, though we do not so decide, because of the specific provision next to be quoted (Buckley v. Holmes, 259 Pa. 176, 189; Phila. v. Com., 270 Pa. 353), appellee is not helped, for no trial or hearing is required: Thomas v. Connell, 264 Pa. 242. On the same assumption, all that appellee had the right to under this section, was that the cause assigned be a just one, not religious nor political, and the reasons given in this case are ample, if true, to justify the demotion. Neither the court below nor this court is charged with an inquiry into the truth or falsity of the causes alleged; and since there is no trial to be had, the accused is not entitled to such clear specifications as would otherwise be required.

The next paragraph of the act is the only one having any further bearing on the question at issue here, and is as follows: “No police officer or fireman except those dismissed during the probationary period shall be removed or discharged except for cause upon written charges, and after an opportunity to be heard in his own defense.” It will be noted that this does not relate to reduction in pay or position, but only to cases of removal or discharge, and therefore in the former instances a police officer or fireman is not entitled to “an opportunity to be heard in his own defense.” It follows that as appellee was reduced and not removed or discharged, it is wholly immaterial what evidence was taken before the civil service commission or in the court below; the matter was one for the appointing power alone, where, as here, there was a just cause stated, not religious or political, a written statement thereof given to the policeman and he allowed to give a written answer thereto.

We cannot construe the word “removed” to signify “reduced” or “demoted”; such is not its popular meaning, especially when referring to a public official. Moreover, in other clauses of the Act of 1919, as above quoted, where the legislature meant “reduced” it used that word and its omission when referring to police officers and firemen indicates a legislative intent to make a distinction. The use of the words “removed or discharged” does not signify that either means “reduced.” It is our duty to construe the law as written and that of the legislature to make or modify it. True, the question upon which we decide this case was not raised in the lower court, nor by counsel here; but, as it goes to the jurisdiction to grant the relief sought, we cannot ignore it.

The judgment of the court below is reversed and set aside.