the scope of his actual authority. See Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 68 S. Ct. 1, 92 L. Ed. 10 (1947).
The record of the Civil Service Commission contains substantial evidence to support the conclusion that the principal employment of Higginbotham was with the Housing Authority of the City of Washington, Pennsylvania; that the holding of elective office as alderman did not exempt him from the operation of the Hatch Act, and that Higginbotham did not fall within the exemption of the Hatch Act.
(2) Does a person who is an employee of a state housing agency have a right under the Hatch Act to challenge the alleged illegal use of federal funds by said agency in maintaining separate but equal housing facilities for the white and the negro race when said practice is known to the Public Housing Administration?
(3) Does the appropriation and allocation of funds by the United States, which are knowingly permitted to be used by the Public Housing Administration, a federal agency, and used by the state housing agency for maintenance of segregated but equal housing facilities, bar the application of the Hatch Act to an employee of a state housing agency?
The legal theses enunciated in Questions (2) and (3) are so inter-related that repetitious expression would be required if each of said questions were evaluated separate and apart. In view thereof the discussion of one necessarily includes an evaluation of the other.
The conditions which are practiced are unconstitutional and appropriate remedy exists in law to correct said illegal practices. There is no evidence in the case that Higginbotham has been discriminated against by said state authority. He does not live in any project under the supervision of the Authority and has never filed application for housing accommodations.
Higginbotham was not affected, directly or indirectly, financially or in any other way, by the maintenance of separate but equal housing facilities for the white and the negro race, and it would be an anomaly to permit such person to question that which he is endeavoring to attain, to wit, re-employment by said state Housing Authority.
Since a constitutional question cannot be raised by an individual whose rights are not directly or indirectly affected, especially where no attempt is made to enforce constitutional requirements or to attack the illegal practices, petitioner, Higginbotham, has no standing in a Hatch Act proceeding to challenge the illegal use of federal funds to maintain segregated housing.
Furthermore, even if petitioner has standing to challenge the unconstitutional use of federal funds, the illegal or unconstitutional course of conduct on the part of the federal housing agency and the state agency does not affect or alter the enforcement of the provisions of an Act of Congress, to wit, the Hatch Act, which has no relationship directly or indirectly to the Federal Housing Act, and, therefore, does not bar the application of the Hatch Act to an employee of such state agency.
The Public Housing Administration and the Civil Service Commission of the United States are separate and distinct agencies of the Federal Government, each of which has specific and designated authority, responsibility and duty. I know of no rule of law that prohibits one federal agency from enforcing laws of Congress where another governmental agency might be violating the provisions of law, or engaging in or permitting unconstitutional activities.
An appropriate Order is entered.
And now, this 24th day of September, 1963, the original order of the Civil Service Commission of the United States entered on May 16, 1962, and the subsequent order of the Commission entered on May 20, 1963, are in each instance sustained since substantial evidence exists to show political activity on the part of Aubrey D. Higginbotham, which is prohibited by the Hatch Political Activities Act, and that Higginbotham engaged in political activity in violation of Section 12 of said Act, and that said violation or activity justified the removal of Higginbotham from his position with the Washington County, Pennsylvania, Housing Authority.
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