Gossnell v. Spang, 6063.

• Decision Date: 12 August 1936
• Docket Number: No. 6063.,6063.
• Citation: 84 F.2d 889
• Parties: GOSSNELL et al. v. SPANG et al.
• Court: U.S. Court of Appeals — Third Circuit

84 F.2d 889 (1936)

GOSSNELL et al. v. SPANG et al.

No. 6063.

Circuit Court of Appeals, Third Circuit.

June 2, 1936.

Rehearing Denied August 12, 1936.

Charles E. Wyzanski, Jr., Sp. Asst. to Atty. Gen., Harry W. Blair, Asst. Atty. Gen., Charles D. McAvoy, U. S. Atty., of Philadelphia, Pa., Aubrey Lawrence, Sp. Asst. to Atty. Gen., and William E. Linden, of Washington, D. C., and Harry B. Wirin, for appellants.

H. Eugene Gardner, of Philadelphia, Pa., for appellees.

Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.

BUFFINGTON, Circuit Judge.

In the court below Benjamin J. Spang, a disabled and honorably discharged soldier, who, however, was not a registered relief person, filed a bill in equity against certain employees of the Department of Commerce of the United States alleging that he and his fellows were "being denied the preference to which they were entitled under the law, and personnel for such positions is being recruited from Federal Relief Rolls," and praying they "be enjoined from employing and from compensating any personnel for project of the United States Government known as Business Census of the United States to be taken under and by virtue of provisions contained in the Federal Emergency Relief Act of 1933 and its supplements 15 U.S. C.A. § 721, et seq. and the Emergency Relief Appropriation Act of 1935 15 U.S. C.A. § 728 note in disregard of statutes of the United States, in disregard of opinion of the United States Attorney General and in disregard of civil service rules."

The case was heard on the motion of the defendants to dismiss and the plaintiff's motion for a preliminary injunction and in pursuance to its opinion (13 F.Supp. 840), the court refused to dismiss and granted an injunction forbidding the defendants "from denying * * * to the plaintiff and other honorably discharged soldiers, sailors and marines, who are qualified * * * preference of employment to clerical and other positions incident to the furtherance of said Business Census Project."

Passing by all questions of lack of parties, of equitable jurisdiction of the court below, and of constitutionality, we note that the underlying and decisive question here involved is whether the Act of July 11, 1919, § 1, 41 Stat. 37 (5 U.S.C.A. § 35), giving soldiers a preference, which provides, "In making appointments to clerical and other positions in the executive branch of the Government in the District of Columbia or elsewhere preference shall be given to honorably discharged soldiers, sailors, and marines, and widows of such and to the wives of injured soldiers, sailors and marines who themselves are not qualified, but whose wives are qualified to hold such positions," applied to the so-called Business Census Act of 1935, under which defendants are acting in refusing a soldier preference.

After due consideration had, we are of opinion it did not. We regard that question as conclusively settled by what took place when the Act of 1935 was being considered by the Congress, viz.:

"Congressional Record

"Vol. 79, Page 2122, No. 32.

"Mr. Metcalf submitted an amendment intended to be proposed by him to the joint resolution (H.J.Res. 117) making appropriations for relief purposes, which was ordered to lie on the table and to be printed, as follows:

"On Page 5, after line 17, add the following new proviso: `Provided, That in the employment of all officials and employees paid from funds appropriated by this resolution preference shall be given, where they are qualified, to ex-service men.'

"Congressional Record

"Vol. 79, Page 4108, No. 55

"Mr. Metcalf. Mr. President, I offer the amendment which I send to the desk to be inserted at the proper place in the joint resolution.

"The Vice President. The clerk will state the proposed amendment.

"The Chief Clerk. At the proper place, it is proposed to insert the following:

"Provided, That in the employment of all officials and employees paid from funds appropriated by this joint resolution, preference shall be given, where they are qualified, to ex-service men.

"Mr. Hayden. Mr. President, it is with great hesitation that I say a word in opposition to this amendment. The Senator from Rhode Island has offered a proposal to give preference to veterans. The fact is, as I think upon reflection the Senator will recognize, that the amendment is improper. The joint resolution is designed to take care of three and a half million men unemployed. Among them are veterans. The amendment would destroy the purpose of the measure by giving preference to veterans, whether or not they were on relief. The joint resolution limits the benefits of the measure to persons on relief. The Senator from Rhode Island seeks to change that, and, under the amendment...