Essinger v. City of New Castle
| Decision Date | 03 January 1923 |
| Docket Number | 182 |
| Citation | 119 A. 479,275 Pa. 408 |
| Parties | Essinger v. New Castle, Appellant |
| Court | Pennsylvania Supreme Court |
Argued October 3, 1922
Appeal, No. 182, Oct. T., 1922, by defendant, from order of C.P. Lawrence Co., March T., 1922, No. 9, in mandamus proceedings, in case of Charles E. Essinger v. The Mayor and the members of the Council of the City of New Castle. Reversed.
Petition for mandamus. Before EMERY, P.J.
The opinion of the Supreme Court states the facts.
Order of reinstatement entered for petitioner. Defendant appealed.
Error assigned was order, quoting it.
The decree is reversed, and the petition dismissed at the costs of the appellee.
Jas. A Gardner, City Solicitor, and Robert M. White, Assistant City Solicitor, for appellants. -- When a person is appointed to a position or employment under acts of assembly, which forbid his dismissal or discharge except for cause and after a hearing, the appointing power may dismiss or discharge such person, notwithstanding the provisions of any such act where the services of the appointee are no longer needed, or the position or place occupied by him has been abolished Phillips v. Mayor, etc., 88 N.Y. 245; Langdon v. Mayor, etc., 92 N.Y. 427; People v. Mayor, etc., of Brooklyn, 149 N.Y. 215.
J. Norman Martin, of Martin & Martin, with him Thomas W. Dickey, for appellee. -- The legislative regulation applicable to the appellee is found in the Act of May 3, 1917, and without compliance with the provisions of this act the council could not remove the employee: Com. v. Black, 201 Pa. 433.
Before MOSCHZISKER, C.J., WALLING, KEPHART, SADLER and SCHAFFER, JJ.
New Castle is a city of the third class, subject to the Act of June 27, 1913, P.L. 568, and supplementary legislation, and thus acquired the power to establish a paid fire department. In 1917 (Act May 3, 1917, P.L. 138), provision was made for the selection of employees of such municipalities by a civil service board, the appointees to serve "for and during good behavior." Section 6 regulated the manner of suspension and discharge, after charges made and hearing had, resulting in a finding of some violation of the laws of the Commonwealth, ordinance of the city, or rules of the service, by the one named.
Essinger, relator in the present proceeding, after examination, qualified as one of the authorized force of thirty-six salaried firemen. In 1921, the number of employees was changed to thirty-four, for the purpose, as stated in the preamble to the ordinance, of reducing the cost of the city government. Later, the present petitioner was relieved from duty, though no charges of any misconduct had been lodged against him, and he instituted the present mandamus proceeding to compel reinstatement, contending in the court below that a fireman regularly appointed could not be removed, except after trial for causes specified in the Civil Service Act, though his service was no longer required. This position was sustained, and the city was directed to continue the relator in service at the salary fixed. From this judgment, the present appeal is taken.
The single question now requiring consideration is the right of the city to lessen the number of firemen chosen in the statutory manner, and to reduce the force accordingly when its council determines the furtherance of efficient and economical government makes necessary such action. Admittedly, in the present case, the course pursued was not taken to secure the removal of Essinger on political grounds, or as a mere subterfuge, adopted to reach such end by apparently legal methods, but was a bona fide attempt to cut down the expenses of the city by ceasing to engage one whose services were believed not requisite for the proper conduct of its affairs.
The office involved is not a constitutional one, and there is no reason, therefore, why the body authorized to create it, should not in its discretion abolish it (Com. v. Black, 201 Pa. 433; Lloyd v. Smith, 176 Pa. 213; Com. v. Weir, 165 Pa. 284; Butler v. Pennsylvania, 10 How. 402), unless some legislative inhibition against such action clearly appears. It is suggested this is found in the Civil Service Act, which protects the employee "for and during good behavior." The wording of this statute is sufficiently broad to lend color to this argument, but, in considering it, as in the case of any other act of assembly, an effort must be made to give the reasonable construction required to carry out the object evidently desired to be accomplished: Citizens E.I. Co. v. L. & W.V.P. Co., 255 Pa. 145; Provident L. & T. Co. v. Klemmer, 257 Pa. 91.
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