Opinion by
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 agree-
merit, 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 Pac. 11; Shawanee v. Hewett, 37 Okla. 125, 130 Pac. 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 Atl. 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 appar
ently 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 on a point later to be considered, — have “the local authorities,” that is the mayor and council, been shown to have had any “pretense” in what they did; all was open and above board, and solely for the public good, on the grounds of economy. Moreover, plaintiff’s citation from Dillon stops just too soon. The immediately succeeding sentence is: “When the statute declares that the incumbent of an abolished office shall be deemed suspended without pay, and shall be entitled to reinstatement in the same or any corresponding office if within one year there is need for his services [as was also the situation in the instant case] the power to determine the necessity for his services is vested in the head of the department
or appointing power, and cannot Tbe controlled or reviewed by the courts.”
Finally we are told that the mayor and council did not formally abolish appellee’s office. True, neither appellee nor any one else was named in the ordinance, but it required the separation of 130 of the existing 4,530 patrolmen, each of whom, including appellee, held an office, and when the removals were made, appellee and the other 129 men were all effectually separated from their offices. There was no legal requirement that the 130 should be proceeded against eo nominee, either in bulk or separately. When the ordinance requiring the reduction was duly passed and approved, without naming the official who should select those who were to be removed, it simply placed upon the proper official, — in this case the director, — to make them under the new ordinance. He who would go further on this point, may wisely read Judge Cardqzo’s opinion in People ex rel. Davison v. Williams, 213 N. Y. 130.
It is clear beyond all doubt, therefore, that the ruling of the court below regarding the need for action by the civil service commission was erroneous. Seemingly recognizing that this was a necessary conclusion, though still protesting otherwise, plaintiff next contends that the director was not the person legally authorized to select the men to be separated because of the budget ordinance necessitating it. This contention is, however, even more futile than the first, since plaintiff does not, and cannot, upon any authority, name some one else who was authorized to select the 130 men to be separated.
In 2 McQuillen on Municipal Corporations, section 574, page 315, it is said: “In the absence of legislation on the subject of removals and grounds therefor, it is usually held that the power to remove is incident to the power to appoint.” And again, section 581, page 345: “The prevailing rule is that, where the power of appointment is conferred in general terms, and without restriction, the power of removal, in the discretion and at the
will of the appointing power, is implied, and always exists unless restricted and limited by some provision of law, and civil service laws do not operate as a restriction upon such power of removal, unless [expressly] so provided.” To the same effect are Callahan v. Phila., 312 Pa. 40; McCoach v. Phila., 273 Pa. 317, and Com. v. Phila., 273 Pa. 332.
By article V, section 2, of the Charter Act of 1919, it is provided (page 591) : “The director shall appoint such other officers and employees as may be provided for by ordinance.” And by article Y, section 3, of the same statute (P. L. 591) it is declared that “The department of public safety shall have the care, management, administration and supervision of the police affairs, and all matters relating to the fire and police forces.” “Under the rule that the power which appoints may remove,” supra, there being no statute or ordinance to the contrary, the director was, of course, the official who had the duty of designating which 130 of the 4,530 patrolmen then on the force, should be separated therefrom, and be placed upon the preferred list kept by the civil service commission.
Plaintiff finally contends that even if the director had a discretion in determining which of the 4,530 men should be separated from the force, he abused his discretion in the present instance and hence his action must be wholly ignored. As we will later show, this is not a cognizable matter in the instant case, but, if it were, the instances would be few indeed in which the courts should so hold, in a case where, as here, the alleged abuse of discretion was by one (the then director) who is not a party to the proceeding, and the punishment is sought to be inflicted upon one (the city) who admittedly was entirely innocent. In the present case, however, the evidence and the proper inferences therefrom do not justify the finding of an abuse of discretion. Assuming as true all the facts favorable to plaintiff, which were proved, and the proper inferences therefrom (where improper,
we reject them and draw our own inferences: Jordan’s Est., 310 Pa. 401, and cases cited therein) the alleged abuse of discretion, must be found, if at all, in the following résumé of the evidence:
While, as stated, there were, by ordinance, 4,530 patrolmen authorized to be employed during 1931, the director could not fill up the quota, though constantly expressing a desire to do so, because the civil service commission, whose duty it was to supply him with a list of eligibles from which the appointments had to be made, though frequently requested, had not in fact done so. This status continued until December 14th of that year, when, for the first time, such a list was furnished by the commission, and from it the director began to fill the vacancies on the force, then 179 in number, the last eight being appointed on December 31, 1931. This occurred during the time the city council was considering the budget for 1932 and determining therein, as required by statute, the number of policemen which was to compose the force during 1932, and the salary and wages to be paid the members thereof: Richardson v. Phila., 312 Pa. 173. As we have already said, there was much contention as to what should be done, and, when finally this was determined, the director had, of course, to act at high speed, in order to make, in proper time, the selection of the 130 men who were to be separated from the force, and go upon the preferred list of the civil service commission. He says he did this after a careful study of the police department records of about one-half of the 4,530 men, and a report made to him that, under no circumstances should any of the 130 be taken from the other half, lie says he first selected the names of 400 or 500 men who could best be spared, then sifted them over until the list was reduced to 200, then again down to 150, and then again until there was left only the 130 men, whom, as he testified, he “thought the department could best afford to lose,” and who were, for that reason, named as those to be separated. There is neither averment nor
proof that any of the 130 laid off, were selected for political or partisan reasons, or because of any religious prejudice or difference in religious views, — which the civil service acts show are the matters particularly legislated against.
Attached as an exhibit in this case is the office records of the 130 men, nearly all of whom were shown to have been repeatedly punished for breaching their duty to the public, some more and some less often than others, plaintiff having been eight times fined, twice discharged and once reprimanded. So far as we are advised, none of those were inflicted by or at the instance of the director, nor does it appear that the director, or any friend of his, ever knew, or knew of, any of the 130 men who were dropped from the payroll for 1932. That the director may have made a few mistakes, — a fact upon which plaintiff so persistently harps, — only proves that he was a human being, acting at high speed, in picking out, in the four remaining days of his term of office, the 130 men who could best be spared. This highly important police record confirmation of the director’s testimony, is not even referred to in the opinion of the court below, nor did it refer to the fact that the succeeding director, against whom no complaint is made, after a careful and ample later study, unqualifiedly approved of the removal of plaintiff and all the others. Yet because the 130 men were all taken from the older members of the force, and not from the 179 new appointments made during the last half of December, 1931, the court below mistakenly draws the inference that the then director had some improper motive in making the selections he did. He was not legally obliged to delay in making the 179 appointments; on the contrary, so far as there was a legal obligation, it was precisely the reverse. No one says that he was asked to delay the appointments, and then, because of the new ordinance, refuse to make 130 of them, thereby keeping down the force for the ensuing year to the 4,400 limit required, though there is much
hinting that it would have been wiser if he had done so. Quite possibly it would, though that lack of wisdom, if such it was, furnishes no basis whatever for the uncalled for insinuations against the director, nor for the alleged abuse of his discretion. He was under no legal duty to later eliminate any of the new men instead of the older ones, nor is there any statute or opinion even hinting that he was, though, of course, he could have taken any or all of the 130 therefrom. In the light of these facts we think the correct inference, — especially as innocence is always to be presumed, — is that, so far as appears, the director did not abuse his discretion in acting as he did. Yet, when the case is fully investigated, this imaginary fact is the only suggested basis for the mistaken judgment of the court below.
It is ti*ue it also says “The evidence on behalf of the plaintiff shows that, in a number of instances, he [the then director] selected men for discharge against whom he had taken a personal dislike, or who had suits against the city for wages that were due them for the period of illegal suspension.” This statement begs the question and wholly ignores the facts. Whether or not the suspension was “illegal” was the question being considered; yet the court below assumes it to be true in order to prove that it was true. Moreover those who had suits against the city expressly agreed, before this proceeding was begun, as plaintiff himself proved, that they would waive all right to back wages if they were restored to office. There were but two witnesses called to substantiate the alleged charge of personal dislike in “a number of instances.” Neither of them testified to anything respecting the relations between plaintiff and the then director, and this is the only matter with which we are here concerned. One of the two said that in December, 1931, the then director told him that “unless he [the witness] withdrew a suit he had against the City of Philadelphia, that he would be......fired by the director......‘if it was the last thing he did when in office.' "
The absurdity as to withdrawing the suit has already been pointed out. The police record of this man shows that he was “held for court for extortion but not found unfit. Charges pending.” The other witness said that in January, 1931, — an unimportant date in this proceeding, — “the [then] director told me that as long as he was director of public safety he would never put me to work. He further stated that I would go to work when he lost his right arm.”
It is clear, therefore, that there is nothing in this record which justifies the conclusion below, that the then director abused his discretion in including plaintiff among the 130 men to be separated from the force, because of the reduction in its membership for economical reasons. It may not be inappropriate to quote, however, from Washington ex rel. Voris v. Seattle, 74 Wash. 199, as follows: “Much of the brief of the respondent is taken up with a discussion that goes to the good faith of the city council in abolishing this office. Courts will not inquire into the motive of the legislative body...... If the rule were otherwise it would be impossible for the governing body of a city to change, rearrange or redefine the duties of its employees, so long as any of them had been classified by the civil service commission and had a scintilla of work to perform...... The council having the right to abolish the position occupied by the relator, it would be an unwarranted usurpation for the court to go behind the question of the good faith of that body......
Nor does the testimony offered to show that the controller has acted in had faith have any hearmg. Whatever his design ma/y have heen, it is lost in the ordinance.”
Moreover, the question of an abuse of discretion has no place in the consideration of a case like the present. The director had not merely the right to separate 130 men from the police force, it was also his absolute duty. “Unless the means employed are unlawful, the motive for the acts are immaterial. No malice of any sort or
character can be imputed to one who exercises an absolute right, whatever his motives...... If one has a legal right to do a particular thing the law will not inquire into his motive for doing it: Beirne v. Continental Equitable Title & Trust Co., 307 Pa. 570”; Kirmse v. Adler, 311 Pa. 78, 86; Vetter’s Est., 308 Pa. 447; Titusville Amusement Co. v. Titusville Iron Works, 286 Pa. 561. So also we said in Brower v. Kantner, 190 Pa. 182, quoting with approval from Field v. Com., 32 Pa. 478, “Where an appointment is during pleasure, or the power of removal is entirely discretionary, there the will of the appointing or removing power is without control, and no reason can be asked for, nor is it necessary that any cause should be assigned.” On this principle we decided in Scott v. Pgh., 266 Pa. 52, that the law will not enjoin the opening of a cul-de-sac short street, at the instance of a property owner whose land was being taken in so doing, because, as he alleged, the opening ordinance was passed for the sole purpose of benefiting another property owner, who was a friend of the councilmen, and whose property would, by the opening, abut on the dead-end of the new street, thereby giving its occupants an outlet thereover.
Another consideration reaches to the same absolute conclusion that this proceeding cannot be maintained. The city is the only real defendant; she, and her citizens through her, are the only ones who will suffer, to the extent of nearly §500,000, if the judgment below is affirmed. She is an arm of the State, and the mayor and city council, who are conducting its affairs, are the delegated officials of the Commonwealth performing, as the latter’s agents, her duties within the territorial limits of the city, so far as concerns all matters relating to the running of the municipal government. This record is barren of anything attacking the good faith and sound discretion of any of those officials. One of their duties is to yearly budget the city’s expenses, and in doing this they were required to, and, in December, 1931, in fact
did, by the appropriation ordinance of that year, determine what number of police officials, — officers and patrolmen, — there should be for 1932, and what salary and wages each of them should be paid. Without such appropriation ordinance no recovery could be had against the city by any one. Article XVII, section 10, of the Charter Act of June 25, 1919, P. L. 581, 609, provides as follows: “No liability shall be enforceable against the city, by any action at law in equity or otherwise, upon any contract......and no payment may be enforced by any such action for services rendered to the city or to any such department......unless there shall have been a previous appropriation by the council to pay for such services.” And again in article XVII, section 4, P. L. 607: “No contract shall be binding upon the city...... and no warrant shall be drawn, issued or approved by any officer of said city for any expenditure by any such department, officer, board, commission, trust, committee, or other agency, unless an appropriation has previously been made in accordance with the provisions of this act; and no warrant shall be drawn against any item in said appropriation in excess of said item; and any contract made or warrant issued in violation of this article shall be absolutely void.”
In construing similar language in section 5 of the Act of April 21, 1858, P. L. 386, the late Judge Thayer, in his usual forceful way, said in Gamble v. Phila., 14 Phila. 223: “It has been repeatedly determined both by the courts of this county and by the Supreme Court that this provision is not merely directory, but that it is in the highest degree mandatory, and binding upon all who deal with the city departments, officers or agents. The words are words of positive prohibition and constitute a perfect and unanswerable defense to the claim of every contractor which is not brought within the specified conditions: Bladen v. The City, 6 Phila. R. 586; s. c., 10 P. F. Smith 464; Parker v. The City, 11 Norris 401; Matthews v. The City, 12 Id. 147. In order to make the
city liable, not only must there be an appropriation, but a sufficient appropriation. Its responsibility cannot be made to extend beyond the amount actually appropriated.” It follows that plaintiff and the other 129 separatists can never recover as if for services rendered during 1932; and it also follows that no mandamus should issue to compel reinstatement to a position for which there was not and is not, and never hereafter can be, an appropriation to pay for the services they say they were ready to perform.
The same conclusion must be reached under article Y, section 2, of the Charter Act (P. L. 1919, page 591) which provides that “The director shall appoint such other officers and employees as may be provided for by ordinance.” There is no legal right to go beyond the point fixed by the ordinance, and the courts are wholly without power to increase the number of municipal officials, or to direct payment to those not provided for by the ordinance. To require the mayor and director,— neither of whom were in office when the 130 men were separated from the force, as is now attempted by the 130 removed patrolmen, and as will, under agreement of the parties, be accomplished if the present judgment is affirmed, — to add 130 patrolmen to the existing force as of January 1, 1932, would be to require the doing of an illegal act, and this, of course, the courts will never do. To be entitled to be restored, the 130 would have had to find vacancies on the force in January, 1932, which they were then entitled to fill, and also, by the proper public officials and in the proper form of procedure, would have had to establish that fact and oust the intruders, before they could take the initial step towards reinstatement. There were no such vacancies either then or at any time since, and no step has ever been taken to oust the imaginary intruders into those offices. Where, as here, there is no vacancy in the department, and its personnel cannot legally be increased, a mandamus will not lie to add to the number of employees in the department.
No matter what may be thought of the actions of the director in this particular matter, for it the city cannot be held responsible. He was then acting in a governmental affair of the city, as distinguished from one that was a purely business matter, and in the former the city acted as an agent of the Commonwealth, and is not responsible either for the malfeasance or the misfeasance of its officer. In such cases the doctrine of respondeat superior never does apply: Scibilia v. Phila., 279 Pa. 549; Devers v. Scranton City, 308 Pa. 13; Szilagyi v. Bethlehem, 312 Pa. 260; Keim v. United States, 177 U. S. 290, 293. In every aspect of the matter, therefore, the peremptory mandamus directing that plaintiff be reinstated as a patrolman, was erroneously awarded.
One other matter should be adverted to. Every request, made by plaintiff at the trial, 35 in number, was unqualifiedly “affirmed.” If the trial judge believed they were correct, as it is to be presumed he did, this is not an objectionable practice. Each of those requests is also repeated in haec verba as individual findings by the trial judge, and none others are. This also is not, when standing alone, an objectionable though a wholly unnecessary practice. On the other hand, 30 of defendant’s requests, are each marked “refused as drawn,” without any statement as to what that means, in the case of any one of those requests. This is objectionable practice. We had occasion to point this out in the case of requests for findings in equity, and finally cured the evil by Equity Rule 71. If this course is persisted in in the present class of cases, a like summary remedy will have to be applied. It is the duty of the court below to let us know what it means by its answer to every request submitted to it, and this “refused as drawn” does not do as to any of them. Moreover, answering the requests of the two parties, in the way here appearing, tends to bring the administration of law into disrepute. The every-day-man, if he happened to learn of the facts to which we have adverted in this paragraph, would not un
likely conclude that the trial judge had taken sides in the controversy; or was too indolent to fully answer the points. Of course, such a possibility should be most carefully avoided.
The judgment of the court below is reversed and judgment is here entered for defendants.