Appeal from the District Court of the United States for the Eastern District of Pennsylvania; George A. Welsh, Judge.
Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.
BUFFINGTON, Circuit Judge.
In the court below Benjamin J. Spang, a disabled and honorably discharged soldier, who, however, was not a registered relief person, filed a bill in equity against certain employees of the Department of Commerce of the United States alleging that he and his fellows were "being denied the preference to which they were entitled under the law, and personnel for such positions is being recruited from Federal Relief Rolls," and praying they "be enjoined from employing and from compensating any personnel for project of the United States Government known as Business Census of the United States to be taken under and by virtue of provisions contained in the Federal Emergency Relief Act of 1933 and its supplements [15 U.S.C.A. § 721, et seq.] and the Emergency Relief Appropriation Act of 1935 [15 U.S.C.A. § 728 note] in disregard of statutes of the United States, in disregard of opinion of the United States Attorney General and in disregard of civil service rules."
The case was heard on the motion of the defendants to dismiss and the plaintiff's motion for a preliminary injunction and in pursuance to its opinion (13 F.Supp. 840), the court refused to dismiss and granted an injunction forbidding the defendants "from denying * * * to the plaintiff and other honorably discharged soldiers, sailors and marines, who are qualified * * * preference of employment to clerical and other positions incident to the furtherance of said Business Census Project."
Passing by all questions of lack of parties, of equitable jurisdiction of the court below, and of constitutionality, we note that the underlying and decisive question here involved is whether the Act of July 11, 1919, § 1, 41 Stat. 37 (5 U.S.C.A. § 35), giving soldiers a preference, which provides, "In making appointments to clerical and other positions in the executive branch of the Government in the District of Columbia or elsewhere 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," applied to the so-called Business Census Act of 1935, under which defendants are acting in refusing a soldier preference.
After due consideration had, we are of opinion it did not. We regard that question as conclusively settled by what took place when the Act of 1935 was being considered by the Congress, viz.:
"Vol. 79, Page 2122, No. 32.
"Mr. Metcalf submitted an amendment intended to be proposed by him to the joint resolution (H.J. Res. 117) making appropriations for relief purposes, which was ordered to lie on the table and to be printed, as follows:
"On Page 5, after line 17, add the following new proviso: 'Provided, That in the employment of all officials and employees paid from funds appropriated by this resolution preference shall be given, where they are qualified, to ex-service men.'
"Vol. 79, Page 4108, No. 55
"Mr. Metcalf. Mr. President, I offer the amendment which I send to the desk to be inserted at the proper ...