Matz, Stephanovic, Fulmer and Peterson all received appointments to the Clairton police force on August 31, 1939, after having qualified by passing civil service examinations and being duly certified. In November the Mayor submitted to the council a number of charges against Matz, but council voted to exonerate him. The Mayor, thus foiled in his attempt to oust Matz, then tried another method to accomplish that result. He notified Matz that his "conduct and capacity" had not been satisfactory and that his employment would terminate on November 30. The council approved this action of the Mayor, although later three of the five members attempted to revoke such approval.
The Mayor seeks to justify his action by virtue of a rule adopted by the civil service boards of the City of Clairton to the effect that "Any person appointed to a position in the classified service after certification from an eligibility list shall be on probation for a period of three months." I disagree with the majority of the Court that this is a rule which the civil service boards of the city had the power to adopt. It is true that section 4404 of the Third Class City Law provides that each such board "shall prepare and adopt such rules and regulations to cover the selection and appointment of all persons as hereinbefore provided, to be hereafter *Page 106 employed or appointed in said cities, as in the judgment of said boards shall be best adapted to securing the best service for the public." That such rules and regulations, however, are intended to cover only investigations and examinations prior to certification is, to my mind, clearly indicated by the remainder of the section, to wit: "Such rules and regulations shall provide for ascertaining and determining, so far as possible, the physical qualifications, habits, reputation, standing, experience and education of all applicants for such positions, respectively; and they shall provide for examinations upon any and all subjects deemed proper or necessary by said board for the purpose of determining their qualifications for the position sought and applied for." The conclusive reason why this rule-making power cannot be construed to give the civil service boards the implied power to provide that appointments shall be initially only for a probationary period of three months is because section 4407 of the act expressly provides that "All appointments made subject to the provisions of this article shall be for and during goodbehavior, and no employe shall be removed or transferred for any political reasons whatever." Surely, a board created by a statute cannot make a rule directly contrary to a categorical provision of the statute itself.
A jury has found that Matz was removed for political reasons. This stamps his removal as illegal under the express mandate of the statute. If the statute is to be followed he can be removed only for cause, as provided in section 4408. No such cause exists, as the council itself decided when it passed upon the charges preferred by the Mayor.
As far as Stephanovic, Fulmer and Peterson are concerned, their removals also were, in my opinion, illegal, because they too had received appointments by council after certification by the civil service board, and such appointments being, under the act, for and during good behavior, could be terminated only if charges were made *Page 107 against these men and proved to the satisfaction of council.
The legislature has provided in several other statutes for the making of probationary appointments, and could have done so in the Third Class City Law had it so desired.
For these reasons I dissent from the opinion of the Court.