Butcher v. Philadelphia

110 A.2d 349, 380 Pa. 290, 1955 Pa. LEXIS 567

Opinions

Opinion by

Mr. Chief Justice Horace Stern,

Vital to the proper disposition of this case is the chronology of the events which gave rise to it: November 6,1951, The City-County Consolidation Amendment to the Constitution was adopted by the electorate. January 7, 1952, The Philadelphia Home Rule Charter became effective. January 7, 1952, Supplemental Emergency Regulation “B” was adopted by the Civil Service Commission. February 4, 1952, Action was instituted in the case of Carrow v. Philadelphia. June 24, 1952, this Court handed down its decision in the Carrow case (371 Pa. 255, 89 A. 2d 496). July 2, 1952, Addendum to Emergency Regulation “B” was adopted by the Civil Service Commission. July 31, 1952, Action was instituted in the case of Lennox v. Clark. January 5, 1953, this Court handed down its decision in the Lennox case (372 Pa. 355, 93 A. 2d 834). June 30, 1953. Emergency Regulation “B” (Section 31.1) was adopted by the Civil Service Commission.

The question here involved is whether Emergency Regulation “B” (31.1), of the Civil Service Commission, is valid. It provided that in all offices, departments, boards and commissions which became city offices, departments, boards and commissions by virtue of the City-County Consolidation Amendment adopted November 6, 1951, all employes appointed on or before July 2, 1952, should be continued in their respective positions provided that they passed a qualifying test prescribed by the Personnel Director and approved by the Civil Service Commission.

In the Carrow case we held that the employes of the former county offices had become subject upon the adoption of the City-County Consolidation Amendment to the provisions of the Home Rule Charter, and therefore that a former county employe who became a city employe by virtue of the Amendment could not be dismissed without cause until given an opportunity to take and pass the qualifying test prescribed in Section A-104 of the Charter in order to become entitled to the protection of civil service regulations. (That section of the Charter provided that those who might become employes of the City by virtue of amendment of the Constitution and the enactment of any legislation required by such amendment, who were not appointed after civil service test and certification, should be continued in their respective positions provided that within one year after the charter took effect or within one year after any such constitutional amendment and such legislation became effective, they would pass a qualifying test prescribed by the Personnel- Director and approved by the Civil Service Commission.) In the Lennox case we likewise held that the • City-County Consolidation Amendment was self-executing, and that when, therefore, on November 6, 1951, it was adopted by the electorate, all employes of the former county-office's automatically becamie city employes and. no-legislation- was- required to implement the Amendment' in-¡that regard.- It is plain, - therefore, that if- the law- as proclaimed in those-cases had been known on-November 6, 1951, to be the- law,- it would háve' been clear at that-time that- any ■ person -thereafter appointed to one of the former county offices could-be so appointed only as a city employe,-and therefore, ■ as was pointed out in the' Lennox -case; oiily- by-taking- -the -competitive - ex-.' amination required of all city employes for admission into the ciyil service.

The plaintiff in the present action, acting in the role of a taxpayer, filed a complaint in equity alleging that, in view of those decisions, the Civil Service Commission had no legal power or authority to provide, by its Emergency Regulation “B” (31.1), that persons appointed to former county offices after November 6, 1951, should be exempt from taking the competitive examination prescribed for city employes and could retain their positions merely by taking the qualifying-test permitted by §A-104 of the Charter to those who were employes of the former county offices on November 6, 1951, when the City-County Consolidation Amendment was adopted. Plaintiff therefore prayed that emergency regulation “B” (31.1) be declared illegal, null and void, and that the City be restrained and enjoined from acting thereunder. The court below granted the injunction prayed for, and the City and the Civil Service Commission appeal. They contend that it would be unjust to give to the decisions in the Garrow and Lennox cases a retroactive effect that would result in invalidating the appointments of some 387 employes to former county offices made in good faith during the period of uncertainty and confusion immediately following the adoption of the City-County Consolidation Amendment and the effective date of the Home Rule Charter.

Looking backward to November 6, 1951, what was the situation as it then appeared to city officials? In order to provide for the running of the city’s business it was necessary, of course, to make appointments of new personnel to both city and former county offices. As to the city offices no question arose because positions there had been, and continued to be, under civil service..regulations,, but. appointments, to. the county offices had not been under any civil service law, and if, notwithstanding the adoption of the City-County Consolidation Amendment, the status of the employes in such offices had not been changed in that respect and would not change until there should be legislation to implement the Amendment, appointments could still be made in the county offices without competitive examinations. The big, undecided question therefore was: did the adoption of the Amendment work an automatic transition from the status of county to city employe? The very phraseology of Section A-104 of the Home Rule Charter indicated the doubt that prevailed in regard to that question, inasmuch as it provided that those who would become employes of the City by virtue of amendment of the Constitution and “the enactment of any legislation required by such amendment” would be required merely to take a qualifying test within one year after such amendment “and such legislation” should become effective. The City Solicitor himself, in a formal opinion, pending the outcome of the Gar-row case, ruled that the former county offices could proceed on the assumption that they were not subject to the provisions of the Home Rule Charter without further legislation. Under such circumstances the Civil Service Commission, having ' enacted the Emergency Regulation “B” of January 7, 1952, which authorized the appointing authorities in certain city offices to create new positions and fill them by provisional appointments without the approval of the Personnel Director, promulgated on July 2, 1952, an Addendum to that Regulation which provided that, “because of the need for- an immediately effective regulation and because of the disorganization which would ensue in the absence thereof,” all appointments made subsequent to November 6, 1951, in. the county offices which became city Offices : by virtue of the City-County Consolidation Amendment, should be treated as provisional appointments, to continue in effect unless and until vacated by the Personnel Director. This was the first attempt of the Civil Service Commission, in the light of the decision in the Garrota case, to apply the civil service regulations to the former county offices, but at the same time it cautiously reserved to the employes so appointed the right to contest the applicability to them of the civil service regulations and to assert the right to be continued in their positions by taking and passing a qualifying test. When, later, the Lennox case was decided, the Civil Service Commission became seriously confronted with the problem as to the retroactive effect of that and the Garrota decision on the appointments made after November 6, 1951, of personnel who had been employed on the assumption that they were not subject to civil service regulations and who had now been in actual service for a period of more than a year. In order to solve that problem it appeared reasonable to the Civil Service Commission that, in view of the experience thus had by such employes, the requirements of the merit system could justly and properly be met by applying to them the same principle that had been adopted in Section A-104 of the Home Rule Charter, namely, to give to such employes the opportunity of remaining in the service by passing the qualifying test prescribed by the Personnel Director and approved by the Civil Service Commission instead of taking competitive examinations.¹ Accordingly it superseded the Addendum to Emergency Regulation “B” by the promulgation of Emergency Regulation “B” (31.1), which applied that principle.

In our opinion the Civil Service Commission had the discretionary power to adopt Emergency Regulation “B” (31.1) in view of the emergency situation created by the then prevailing uncertainty as to the effect of the City-County Consolidation Amendment on the status of the employes of the former county offices. Inasmuch as that uncertainty was' largely, if not entirely, dissipated by the decision in the Garrow case, the Commission properly took July 2, 1952 (a week after the decision in that case was handed down), as the “cut-off” date for employes in the former county offices to be allowed to enter the service by passing the prescribed qualifying test. Technically, of course, the fiction of the law is that, when a decision is handed down by a court, it proclaims the law not only as thenceforth existing but as it had always existed and as all persons were presumed to have known. However, this principle of the retroactive effect of a judicial decision has frequently been held not to apply to actions previously taken in good faith. In the analagous case of a statute being judicially declared to be unconstitutional it was said by Mr. Chief Justice Hughes in Chicot County Drainage District v. Baxter State Bank, 308 U. S. 371, 374: “The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. ... It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, — with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.” ² The principle thus stated was followed and applied in the subsequent case of National Labor Relations Board v. Rockaway News Supply Co., Inc., 345 U. S. 71, 77, 78, in Phipps v. School District of Pittsburgh, 111 F. 2d 393, and in J. A. Dougherty’s Sons, Inc. v. Commissioner of Internal Revenue, 121 F. 2d 700.

The decree of the court below is reversed; the parties to pay their respective costs.

Footnotes

1

It is interesting to note that plaintiff’s own brief concedes the justice and wisdom of the provision for such a policy. It says: “The qualifying examination provided in Section A-104 of the charter recognizes the hardship and inequity of compelling an employee who has held his job in a county department, and supposedly become proficient therein, to risk the loss of his position by taking a competitive examination, open to any one, and where, in theory at least, the candidate receiving the highest grade is awarded the position. In the case of Section A-104 of the charter the obvious purpose of the qualifying examination is only to make sure that the employee is qualified to hold his job, and capable of discharging his duties. Most apparently this is an exception to the strict application of civil service principles, and is based on recognition of the service of the employee and the experience gained through the daily performance of his task over a period of time.”

2

In a footnote the court cited Field, “The Effect of an Unconstitutional Statute”; 42 Yale Law Journal 779 ; 45 Yale Law Journal 1533; 48 Harvard Law Review 1271; 25 Virginia Law Review 210. See also Note, 37 Georgetown Law Journal 574.