Appeal, No. 364, Jan. T., 1957, from decree of Court of Common Pleas No. 2 of Philadelphia County, June T., 1956, No. 2969, in case of Cynthia Dwyer v. Richardson Dilworth, Mayor of the City of Philadelphia et al. Decree affirmed.
Samuel C. Tabbey, with him Irving R. Shull and Bernard L. Lemisch, for appellant.
David Berger, City Solicitor, with him Frank X. O'Brien, James L. J. Pie, Assistant City Solicitors, and Jacob J. Siegal, Assistant to the City Solicitor, for appellees.
Before Jones, C.j., Bell, Chidsey, Musmanno, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE COHEN
In Lennox v. Clark, 372 Pa. 355, 93 A.2d 834 (1953) we held that the Office of the Clerk of the Courts of Oyer and Terminer and Quarter Sessions of the Peace of Philadelphia County became a city office under the
City-County Consolidation Amendment,*fn1 and subject to the civil service provisions of the Home Rule Charter. In making this determination we reasoned that the Constitution established the clerk of quarter sessions as a county officer,*fn2 and since control of this office was not assigned to the judiciary by virtue of Article V of the Constitution,*fn3 no conflict between the city and the courts over the conduct of this office could arise, and therefore no unconstitutional encroachment by the executive branch of the government upon the power of the judiciary could occur by the placing of the office of the clerk under the city's jurisdiction.
After this decision the personnel director of Philadelphia, in cooperation with the clerk of quarter sessions, made a study of the functions and duties of the positions in the office of the clerk and classified the positions in accordance with the civil service system. Based upon this study a qualifying examination was prepared for employes appointed to their posts prior to the effective date of the charter to ascertain whether such employes were competent to retain their jobs.*fn4
For employes appointed thereafter an open competitive examination was provided pursuant to civil service regulations.*fn5
Two days before the scheduled date of the examinations, June 30, 1956, the plaintiff a taxpayer of Philadelphia, instituted suit to restrain the city from administering the examinations. A preliminary injunction was granted, the city answered and on the basis of the pleadings the injunction was dissolved and a ...