Carrow v. Philadelphia

89 A.2d 496, 371 Pa. 255, 1952 Pa. LEXIS 417

• Court: Supreme Court of Pennsylvania
• Decided: June 24, 1952
• Docket: Appeals, 187 and 198
• Status: Published

Opinions

Opinion by

Me. Justice .Horace Stern,

Plaintiff, Margaret S. Carrow, for approximately a year and a half was a telephone operator in the office of the Sheriff of Philadelphia County. On January 28, 1952 she was discharged by the Sheriff, admittedly without cause. She brought the present mandamus action against the City of Philadelphia and the Sheriff seeking restoration to her position, the payment of her salary for the period of her dismissal, and her retention in service until she should have an opportunity to pass a qualifying test as provided by the Philadelphia Home Eule Charter. The defendants filed preliminary objections to the complaint and counsel agreed that the question at issue should be disposed of on a consideration of those objections without the necessity of a final hearing. The court below entered judgment in favor of the plaintiff and ordered that a peremptory writ of mandamus issue as prayed for, from which judgment and order defendants now appeal.

*

The solution of the legal problem presented is entirely free from difficulty if the controlling enactments are read with an eye to their plain and unequivocal meaning instead of with a straining after forced constructions and a seeking of ambiguities where none exist.

Article XIY, section 1, of the Constitution designated the Sheriff as a county officer, and, since the employes in that office were not under civil service, they were subject to dismissal at the will of their employer. However, by the so-called City-County Consolidation Amendment, adding section 8 to Article XIY, which became effective when it was approved by the electorate on November 6, 1951, all county offices in Philadelphia were abolished and it was provided that all county officers should thereupon become officers of the City of Philadelphia, and, until the General Assembly should otherwise provide, should continue to perform their duties and be elected, appointed, compensated and organized in such manner as might be provided by the Constitution and the laws of the Commonwealth in effect at the time the amendment became effective, the officers then serving to be permitted to complete their terms.

Article XY, section 1, of the Constitution gave the right and power to cities to frame and adopt their own charters and to exercise the powers and authority of local self-government, subject to such restrictions, limitations, and regulations as might be imposed by the legislature; it further provided that laws might be enacted affecting the organization and government of cities which should become effective in any city when submitted to the electors thereof and approved by a majority of those voting thereon. Acting in accordance with this constitutional provision the legislature enacted the First Class City Home Eule Act of April 21, 1919, P.L. 665, which provided that any city of the first class might frame and adopt a charter for its own government and any such new charter, when approved by a majority of the qualified electors voting thereon, should become the organic law of the city at such time as might be fixed therein. This act further provided (section 17) that, subject to limitations not here relevant, the city framing and adopting a charter should have and might exercise all powers and authority of local self-government and should have complete powers of legislation and administration in relation to its municipal functions, and that the charter thus adopted might provide for a form or system of municipal government and for the exercise of any and all powers relating to its municipal functions to the full extent that the General Assembly might legislate in reference thereto as to cities of the first class, and with like effect, and that the city might enact ordinances, rules and regulations necessary and proper for carrying into execution the foregoing powers and all other powers vested in the city by the charter it adopted or by that or any other law.

In pursuance of this sweeping grant of powers the electorate of the City of Philadelphia adopted on ApriL 17, 1951 the Philadelphia Home Eule Charter which, by its terms, became effective on the first Monday of January, 1952.

As previously stated, the City-County Consolidation Amendment provided that, until the legislature should otherwise provide, all the county officers should continue to perform their duties and those then serving should be allowed to complete their terms, but it will be noted that no provision was made in regard to the continuance in their positions of the employes of county offices. Accordingly that problem was dealt with in the new City Charter under the comprehensive authority granted to the city by the First Class City Home Rule Act. The Charter set up an elaborate civil service system and enacted (section 7-301) that all employes of the city (with certain exceptions not here pertinent) should be under civil service. It further provided (section A-104) that employes then holding positions in the classified service who had been appointed after test and certification to such positions should be continued in their respective positions, without further examination, until lawfully separated from their positions, — that is to say, until separated in accordance with civil service regulations. But the question naturally arose as to what was to be done in regard to employes of the county offices who, by virtue of the City-County Consolidation Amendment, — the likely adoption of which was then in contemplation — would become employes of the city instead of the county and who had never been under civil service regulations. It would manifestly have been unjust to provide that such employes should thereupon automatically lose their jobs, or that they might be dismissed at the arbitrary will of their employing officer, thereby making possible the retention of a spoils system which permitted such dismissals for purely political reasons; on the contrary, therefore, the framers of the charter obviously planned to bring all these former county employes as soon as possible under the protection of civil service, the same as governed city employes already enjoying that protection. It was evidently further thought, however, that these new city employes should not be compelled to take the regular competitive examinations required of new applicants, but that their previous service, in some cases extending over many years, should entitle them, by reason of the experience thus gained, to a less rigorous qualifying test. Accordingly it was provided by section A-104 of the Charter that those who might become employes of the city by virtue of amendment of the constitution, and who had not been appointed after civil service test and certification, should “also be continued in their respective positions provided that within one year after this charter takes effect . . . they pass a qualifying test prescribed by the Personnel Director and approved by the Civil Service Commission”, and that those who failed so to qualify should “be dismissed from their positions within thirty days after the establishment of an eligible list for their respective positions.” This language is so clear that he who runs may read. The former county employes were to be given the opportunity of maintaining their positions by passing a qualifying test at some time during the period of a year. If before such opportunity were afforded them they could be discharged by their employer without cause this provision of the section would be so extremely deceptive, not to say wholly meaningless, that these employes might justly denounce the framers of the Charter as Macbeth did the guileful witches

“That palter with us in a double sense;

That keep the word of promise to our ear

And break it to our hope!”

Certainly the Charter Commission had no such thought, as shown by the fact that in the annotations prepared under the direction of the Drafting Committee it is stated with respect to section A-104 that “Non-civil service employees under the 1919 Charter or civil service employees thereunder not employed after a civil service test and certification automatically retain their employment status for a period of one year. To remain thereafter in the employ of the City as civil service employees they must take and pass a qualifying examination. The examination required is not intended to be a competitive test nor need it be a written one. Its sole purpose is to establish that a former non-civil service employee or employee not appointed pursuant to test and certification meets certain minimum qualifications necessary to perform the duties of the position which he holds. Experience and a previous record of satisfactory performance are factors to be considered in the test rating. It is not the intention of this section to take off City payroll employees who have faithfully and creditably performed their duties of employment prior to the effective date of this Charter merely because they were not civil service employees pursuant to test and certification under the 1919 Charter. The presumption should be that such employees are qualified to continue their employment but as civil service employees. To protect the interest in the respects noted of such employees, it is required that the Civil Service Commission itself in this instance should approve the qualifying test prescribed by the Personnel Director. The comments above are equally applicable to County employees who may become City employees by virtue of City-County consolidation ”

Defendants urge that because the City-County Consolidation Amendment provided that the county officers should continue “to perform their duties”, this meant that they should continue to have the po-wer to dismiss their employes at will. Such an interpretation is wholly beyond reason. This provision did not purport in any manner whatsoever to deal with the relations between the county (now city) officers and their employes or with the latters’ employment status. As to the provision in the amendment that the county officers should continue to be “organized” in tbe manner provided by tbe Constitution and the then existing laws, this obviously refers, not, as appellants mistakenly claim, to tbe county offices, but to tbe county officers, and covers tbe case of County Commissioners who were “organized” by legislation into a board for tbe transaction of tbeir business.

It is defendants’ final contention that, if it bad been intended to continue tbe county office employes in tbeir positions until they were given tbe opportunity to qualify by test, there would at least have been a provision that they could meanwhile be removed for cause. Such a provision, however, was unnecessary since it is implicit in every relationship of employer and employe that if tbe latter violates tbe conditions of bis employment, and fails to render efficient service, tbe employment may be terminated as in tbe case of any other failure of a party to perform a contractual obligation.

It remains only to add that nothing herein contained must be understood as preventing tbe dismissal of employes if the positions they occupy are no longer required, — in other words, if by reason of lack of funds or work tbe force should be reduced. In that event, however, as stated in tbe annotation of tbe Drafting Committee to subsection (o) of section 7-401 of tbe Charter, lay-offs for any such reason should be determined on tbe basis of service efficiency and seniority considerations.

Tbe judgment and order of tbe court below are affirmed.

Defendants do not raise any question on'this appeal other than that of the legality of plaintiff’s dismissal.