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SPANG v. ROPER

February 14, 1936

SPANG
v.
ROPER, Secretary of Commerce, et al.



The opinion of the court was delivered by: WELSH

This matter is before the court on a motion for preliminary injunction to restrain officials of the Department of Commerce and the enforcement officers in this district from employing and compensating the personnel of the business census project authorized by the Emergency Relief Act, in disregard of the preference given to discharged veterans under federal statute. Argument was had on this motion and also on defendants' motion to dismiss the bill.

The suit is brought by the plaintiff on behalf of himself and other honorably discharged service men against the Secretary of Commerce, the Chief Personnel Officer, the officials of the Department of Commerce in charge of the business census project in Philadelphia, the Attorney General, and the United States Attorney for this district. The suit was discontinued as to the Secretary of Commerce, the Chief Personnel Officer, and the Attorney General; no service having been made upon them.

 The bill avers that, by authority of the Emergency Relief Appropriation Act of 1935 (15 U.S.C.A. § 728 note) and an executive order made in pursuance thereof, there was established at Philadelphia an office for the furtherance of the emergency relief business census project, which office is in the charge of the defendants. The plaintiff is an honorably discharged veteran of the World War, having proper qualifications and the ability to perform work in connection with the taking of the census. He has made application for employment on that project, but the defendants have refused to accept his application and to employ him because he was not receiving federal relief in May, 1935, and was not entitled to such employment under the alleged terms of an executive order which controlled the actions of the defendants. It is averred that honorably discharged veterans and their dependents, when competent, are entitled under federal statute to preference of employment in government service, and that the refusal of defendants to employ the plaintiff is a violation of the duty imposed upon the defendants and a denial of the plaintiff's rights under the law. Plaintiff prays that defendants be enjoined from employing and compensating any personnel for the project in question in disregard of the statutes of the United States, the civil service rules, and the opinions of the Attorney General.

 For the purpose of the motion for preliminary injunction, we must accept the averments of the bill as true. We find confirmation of the essential facts in the defendants' affidavits contra the motion, which declare that, under authority of the emergency relief acts and an executive order, a person to be eligible for employment on a work relief project must be (1) registered with the United States Employment Service and (2) receiving public relief in May, 1935. The affidavits further state that the plaintiff, although registered with the employment office, was not receiving public relief in May, 1935, had not been certified to the Census Bureau in accordance with the regulations, and was not eligible for employment.

 Before determining the exact question raised, it is necessary to examine the Emergency Relief Appropriation Act of 1935 (15 U.S.C.A. § 728 note) and the executive order under which the project is being carried on:

 Section 1: "In order to provide relief, work relief and to increase employment * * * there is hereby appropriated * * to be used in the discretion * * * of the President * * * the sum of $4,000,000,000. * * * Provided, that * * * this appropriation shall be available for the following classes of projects: (a) Highways; (b) rural rehabilitation; (c) rural electrification; (d) housing; (e) education; (f) C.C.C. camps; (g) state projects; and (h) miscellaneous projects, $350,000,000."

 "Provided, however, That the expenditure of funds * * * for the construction of public highways and other related projects shall be subject to such rules and regulations as the President may prescribe * * * and preference in the employment of labor shall be given * * * to persons receiving relief, where they are qualified."

 The executive order in question states that:

 "(e) Except as specifically provided in this part, workers who are qualified by training and experience to be assigned to work projects shall not be discriminated against on any grounds whatsoever."

 This action is brought upon the theory that the above regulations are in violation of the act of 1919 and supplements (5 U.S.C.A. § 35), which provides: "Persons honorably discharged from the military or naval service by reason of disability" suffered "in the line of duty, shall be preferred for appointments to civil offices" if qualified to perform the duties required; and "in making appointments to clerical and other positions in the executive branch of the Government * * * 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."

 The general question raised is whether the executive, in exercising the powers granted under the Emergency Relief Appropriation Act, is governed by the act as to soldiers' preferences in employing persons for work relief.

 It is noted that the Emergency Relief Appropriation Act places certain specific limitations upon the discretion and powers of the President. He is limited to the classifications and amounts specified and may only authorize a variance up to twenty per cent.; the funds for public highway projects must be apportioned by the Secretary of Agriculture; for river and harbors projects by the permanent government department having charge thereof; on public buildings the Act of March 3, 1931, 46 Stat. 1494, as amended, 40 U.S.C.A. § 276a and note, shall apply as to wages; and, in carrying on road ...


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