Appeal, No. 238, Jan. T., 1954, from decree of Court of Common Pleas No. 4 of Philadelphia County, Sept. T., 1954, No. 1011, in case of Harry K. Butcher v. City of Philadelphia, Joseph S. Clark, Mayor, et al. Decree reversed.
Abraham L. Freedman, City Solicitor, with him Jerome J. Shestack, first Deputy City Solicitor, for appellants.
Wm. Barclay Lex, with him Joseph P. Flanagan, Jr., for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
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 offices automatically became 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 have 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, only by taking the competitive examination
required of all city employes for admission into the civil 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 Carrow 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 Carrow 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 Civcil 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 in 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 Carrow 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 Carrow 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 ...