Appeal from judgment of Court of Common Pleas No. 1 of Philadelphia County, Dec. T., 1954, No. 6565, in case of Albert W. Baxter, James Loughran, William Courtney et al. v. City of Philadelphia, Joseph S. Clark, Jr., Vernon D. Northrop et al.
Jacob J. Kilimnik, with him Alexander Osinoff and Samuel Finestone, for appellants.
Levy Anderson, First Deputy City Solicitor, with him Edward G. Bauer, Jr., City Solicitor, for City of Philadelphia, appellees.
Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen took no part in the consideration or decision of this case.
This is an appeal from the judgment of the Court of Common Pleas No. 2 of Philadelphia County entered March 14, 1966 dismissing exceptions of plaintiffs and entering judgment for defendants on the verdict in an action of mandamus. Plaintiffs are certain policemen, crime investigation officers and retired policemen on their own behalf and on behalf of all police and park police similarly situated. Defendants are the City of Philadelphia, the mayor and other city officials. The action from which this appeal arises was instituted in 1955 to compel the city to pay plaintiffs at overtime rates for working more than a five-day, 40-hour work week since January 7, 1952 and to restore a five-day, 40-hour work week for all city policemen and park police.*fn1
Prior to October 29, 1951 Philadelphia police were on a six-day, 48-hour work week schedule. On that day an ordinance was adopted, effective January 1, 1952, establishing a five-day work week for city employees, and authorizing the mayor to execute an agreement with the American Federation of State, County
and Municipal Employees, District Council No. 33. The agreement authorized provided that the regular work week for the union's employees should consist of a five-day, 40-hour work week, that overtime beyond eight hours in any day or beyond five days any week should be paid for at the rate of time and one-half and that work performed on Sunday should be paid for at double time. On January 2, 1952, the ordinance of October 29, 1951 was amended to provide that on and after January 1, 1952 the standard work week of all city employees, including police, be in accordance with the 40-hour plan described above. Thus, effective January 1, 1952, police and park police of the city were placed on a work week schedule of 40 hours.
On January 7, 1952, Philadelphia's Home Rule Charter, which had been adopted by the electorate in the spring of 1951, came into effect and a new city administration was inducted into office. On that same day, the new Civil Service Commission, appointed under the charter, promulgated Supplemental Emergency Civil Service Regulation A. This regulation provided that effective January 7, 1952 the hours of work, the rates of pay and determination of compensation of all city employees should be as legally established on October 26, 1951. Thus, following adoption of this regulation, policemen and park police were, in fact, returned to a six-day, 48-hour work week. Finally, it must be noted that effective January 1, 1953 the Civil Service Commission adopted another regulation which continued in effect the six-day, 48-hour week for police and park police.*fn2
The instant action was instituted by plaintiffs to compel a restoration of the 40-hour week and to obtain
payment pursuant to the provisions of the ordinance of January 2, 1952 for hours worked by plaintiffs in excess of 40 per week between January 7, 1952 and the present time.*fn3 In support of their claim plaintiffs urged in the court below and in their appeal that the regulations returning police to a six-day, 48-hour week were invalid: (1) because they were not adopted in compliance with the procedural requirements of the charter; (2) because they constituted an ineffective attempt to repeal the ordinances of October 29, 1951 and January 2, 1952; (3) because they violate Pa. Const. Art. III, § 7 by granting special privileges to city employees (i.e., unionized employees of the former Public Works Department granted a 40-hour week under the ordinance of October 29, 1951 and an agreement between the city and their union) other than police; (4) because they violate the equal protection and due process guarantees of the Constitution of the United States; (5) because they violate constitutional guarantees of the obligation of contracts.
In findings of fact affirmed by the court en banc, the trial judge concluded that Supplemental Emergency Civil Service Regulation A and the subsequent regulation of January 1, 1953 validly superseded the ordinances of October 29, 1951 and January 2, 1952 and that there was no appropriation by City Council in the 1952 budget which "was intended by Council to be, or which in fact became, available for the payment of overtime work of plaintiffs or those in the same class as plaintiffs." The court en banc, in its opinion affirming the ...