While I am unable to subscribe to all of the reasoning in the opinion of the trial judge, which the majority has adopted, I am persuaded that the conclusion reached herein is legally correct — that is, that relator is entitled to civil service status despite his prior inconsistent conduct and successful evasion of the law in order that he could receive a salary greater in amount than that permissible under classified service.
It is my belief that subsection (a) (8) of Section 10 of Act No. 171 of 1940, excepting *Page 1034 employees of the Mayor's office from classified service, refers to those employees engaged in the place where the Mayor conducts his routine duties and who, in various capacities, assist him in the performance of his daily tasks. In short, the retinue of the Mayor's office. Examination of the civil service law as a whole has convinced me that the Legislature did not intend to exclude from the classified service, employees of a separate governmental department, such as the Permit Department, notwithstanding that it is placed, by law or ordinance, under the control and supervision of the Mayor.
Moreover, in spite of the fact that relator's testimony, relative to obtaining a "leave of absence" and his receipt of an alleged confirmatory letter from the Mayor, places a great strain upon my credulity, I am satisfied that he did not "resign" in the sense that it was his intention to sever completely his relations with the City at the time he obtained employment in a defense plant.
The truth, as I see it, is that, when relator left his job to enter defense work, he intended to return to the City Hall, where he had been employed for almost twenty years, as soon as the war work was concluded. And I have no doubt that the former Mayor anticipated and expected that he would return. In this light, it is evident that relator's separation from his job is to be viewed as a leave of absence without pay rather than a "resignation" *Page 1035 contemplating a severance of the employment forever. Of course, it is manifest that relator did not obtain the leave with the idea of protecting any civil service status which he might later acquire, as it is not disputed that he did everything possible to avoid civil service classification and was successful in his efforts.
But, be this as it may, relator was actually granted a leave of absence and, therefore, was entitled to be placed (and was placed after his return) in the same category as all other city employees who, according to the testimony of the Director of Civil Service Personnel, were given permanent classified status even though their leaves of absence without pay, while engaged in the war effort, had extended beyond the one year limit set forth in the resolution of the City Civil Service Commission on Status of Employees on Effective Date of Act.
I concur in the decree.