Leary v. Philadelphia

• Decision Date: 23 April 1934
• Docket Number: 363
• Citation: 172 A. 459,314 Pa. 458
• Parties: Leary v. Philadelphia et al., Appellants
• Court: Pennsylvania Supreme Court

172 A. 459

314 Pa. 458

Leary v. Philadelphia et al., Appellants

No. 363

Supreme Court of Pennsylvania

April 23, 1934

Argued December 8, 1933

Appeal, No. 363, Jan. T., 1933, by defendants, from judgment of C.P. No. 1, Phila. Co., Dec. T., 1932, No. 4648, in case of Charles J. Leary v. The City of Philadelphia, J. Hampton Moore, mayor, and Kern Dodge, director of public safety. Judgment of court below reversed and judgment here entered for defendants.

Mandamus for reinstatement to office. Before McDEVITT, P.J., without a jury.

The opinion of the Supreme Court states the facts.

Order entered granting peremptory writ. Exceptions dismissed McDEVITT, P.J., and PARRY, J., and judgment entered for plaintiff. Defendants appealed.

Error assigned, inter alia, was judgment, quoting record.

The judgment of the court below is reversed and judgment is here entered for defendants.

T. B K. Ringe, with him Ernest Lowengrund, Assistant City Solicitors, and David J. Smyth, City Solicitor of Philadelphia, for appellants.

James F. Masterson, with him James P. McGranery and Martin Feldman, for appellee.

T. Henry Walnut, Isaac C. Sutton and Albert Smith Faught, submitted a brief for Pennsylvania Civil Service Association as amicus curiae.

Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

MR. JUSTICE SIMPSON:

Plaintiff, who was at one time a patrolman of the City of Philadelphia, filed herein a petition for a writ of peremptory mandamus against the city itself (as to which, however, no relief is specifically asked); and against Kern Dodge, who at that time was director of the department of public safety, requiring [him] to show cause "why he should not forthwith designate your petitioner as a patrolman in the bureau of police, department of public safety of the City of Philadelphia, and assign your petitioner to the proper duties incident to the said office"; and against J. Hampton Moore, who then was mayor of the city "to show cause why [he] should not see that the petitioner is designated as a patrolman in the bureau of police and assigned to the duties incident to said office." The mayor and director who were filling those offices during all the proceedings of which plaintiff complains, are not parties to the suit. A return was made to the alternative writ, and, by agreement, a jury trial was waived and the trial had by and before one of the judges of the court below. This resulted finally, after exceptions had been filed and disposed of, in the award of the peremptory writ as prayed for; whereupon defendants appealed. The judgment must be reversed; and we would so conclude whether we agreed or disagreed with the court below in its findings of fact and its inferences therefrom.

On the main question in the case the facts are few and undisputed, and the law is clear beyond cavil. Prior to 1932 the number of patrolmen in the city, fixed by ordinance, was 4,530. By article XVII, section 2, of the Charter Act of June 25, 1919, P.L. 581, 606, it is provided that the city council, in adopting its "financial program for the ensuing year . . . shall be bound to accept the estimates of receipts and liabilities [furnished by] the controller, but shall have full discretion to determine the character and amount of expenditures to be made out of the estimated receipts of the city during the ensuing year."

In December of 1931, when the finance committee of the city council, and later the council itself, had under consideration the budget for 1932, it was evident to every one that drastic economies would have to be made. Plaintiff himself admits this, saying in his brief: "It is conceded that the budget for the City of Philadelphia for the year 1932, on account of the condition of the city's finances, had to be reduced and economies had to be effected to make the budget fit the prevailing tax rate." One part of the community contended that the police force should not be decreased in number, nor the wages of its individual members lessened; and others that the force should be decreased in number, or the wages of the individual members lessened, or both. The director of public safety who was then serving (hereinafter called the director, but is not the defendant named as such in this record) belonged to the first class. Indeed, he at first urged an increase in the force, and, in default of that, strenuously opposed the reduction in either respect. Subsequently learning that the finance committee of council, which then had the matter in charge, had determined that, for the reason stated, a reduction in one or the other respect would have to be made, he stated to the committee that he believed it would be better for the city to continue the existing wages and salaries, and to reduce the number of patrolmen from 4,530 men to 4,400 men. This was the course finally adopted by the committee, and by the council itself by an ordinance passed during the evening of December 31, 1931, and later on that night signed by the mayor. When the budget for 1932 was thus adopted and approved providing for but 4,400 men, it became necessary to reduce the force by 130 men in order to comply therewith. This was done, and the 130, one of whom was plaintiff herein, received written notice from the director, that because of this action of the council they need not report for duty after midnight of December 31, 1931. Notice of this separation of the 130 men was given to, but not expressly approved by, the civil service commission. Because of this latter fact, plaintiff contended, and the court below decided that all the 130 were improperly separated from the force. This contention would have been sound if they had been severally dismissed for improper actions on their part, and the number of authorized patrolmen continued as theretofore, but where, as here, the separation of the 130 men was necessitated by the council's reduction of the force, caused by enforced economy, and the total membership of the force was then actually reduced, no action by the commission was required. We said in Essinger v. New Castle, 275 Pa. 408, 411: "Civil service acts are designed to secure the appointment of competent public servants, and protect them in their employment from attacks on personal grounds, so long as they are well behaved. They are not intended to retain in office at public expense those whose services may be dispensed with for economy. . . . These statutes are not intended to affect or control the power of the city council, or the executive officers of the city, to abolish offices when they are no longer necessary, or for reasons of economy. They are not intended to furnish an assurance to the officer or employee that he will be retained in the service of the city after the time when his services are required. . . . In the absence of some constitutional provision or legislative enactment, notwithstanding the Civil Service Act, the municipality may do away with an office created by it, though the effect is the removal of an employee from his situation: 5 R.C.L. 614. Though not the subject of previous discussion in Pennsylvania, this has been the uniform ruling in many states where consideration has been given to the question: Harker v. City of Bayonne, 85 N.J.L. 176; Washington v. Seattle, 74 Wash. 199, 133 P. 11; Shawanee v. Hewett, 37 Okla. 125, 130 P. 546; People v. Lindenthal, 173 N.Y. 524, 66 N.E. 407; Gardner v. Lowell, 221 Mass. 150, 108 N.E. 937; note 4, A.L.R. 205."

Many other cases are to the same effect, as see Oldham v. Birmingham, 102 Ala. 357; O'Neill v. Williams, 199 A. 870; Heath v. Salt Lake City, 16 Utah 374; Venable v. Portland Police Commission, 40 Ore. 458; People v. Ham, 166 N.Y. 477; Moores v. State, 54 Neb. 486; Lathbridge v. Mayor, 133 N.Y. 232; and, so far as we have been advised, no court of last resort in this country now reaches an opposite conclusion, if, indeed, any one ever did.

In a vain attempt to escape the effect of the Essinger Case, appellee points to three supposed distinctions between it and the present, each of which, so far as it is such, is a "distinction without a difference," and hence is of no moment. In the first place, he quotes from that case (275 Pa. 410) the following: "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 some 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." This is likewise true in the present case. The reduction here was by city council and the mayor, against whose good faith there is neither averment nor proof. If appellee had not been included in the 130, some one else would have had to be, and everything said herein about the director, would have applied to such other person as fully as it does to appellee, for, as respects the director's personal relation to and removal of appellee, not one antagonistic word is to be found in the evidence.

So also, appellee quotes the following from 2 Dillon on Municipal Corporations (pages 805, 806, 807, note): "But although the operation of these [civil service] statutes does not prevent the abolition of an office in good faith, the local authorities have no power to discharge an officer or employee of the city upon the pretense that his office is abolished and immediately thereafter assign another person to do the same work which had been done by the discharged employee." Nor has that been done here. The places of none of the 130 removed men, has ever been filled by others; the force still remains at 4,400 men. Nor, -- and this is particularly important...