The discharge of policemen in the City of Philadelphia is clearly regulated by statute. Section 18 of the Charter Act of June 25, 1919, P. L. 581, provides: "No police officer or fireman, except those dismissed during probationary period, shall be removed or discharged, except for cause, upon written charges, and after an opportunity to be heard in his own defense."
The civil service commission has exclusive authority to determine what constitutes cause for any or all removals or dismissals: McCoach v. Phila., 273 Pa. 317, 117 A. 71; and Souder v. Phila., 305 Pa. 1, 156 A. 245.
In Essinger v. New Castle, 275 Pa. 408, 119 A. 479, this court cited with approval the following from 2 Dillon on Municipal Corp. (5th ed.), page 805: "The purpose of the civil service statutes, and of other laws prohibiting the discharge of employees without cause assigned, notice, and a hearing, is to insure the continuance in public employment of those officers who prove faithful and competent, regardless of their political affiliations. These statutes are not intended to affect or control the power of the city council, or the executive officers of the city, to abolish offices when they are no longer necessary, or for reasons of economy." In the present case the then director of public safety of Philadelphia on December 14, 1931, proposed to the city council, sitting as a budget committee of the whole, that he could effect a saving in his department by eliminating 130 positions in the bureau of police and 100 positions in the bureau of fire. This was agreed to by the council. *Page 476 At that time there were 179 vacancies in the bureau of police and 70 in the bureau of fire.
On the following day the director began making appointments of probationary patrolmen to fill the police vacancies, and between December 15th and December 31, 1931, he appointed 179 probationary patrolmen. After the then director knew that the ordinance fixing the number of patrolmen at 4,400 had been reported favorably by the entire council, sitting as a budget committee, on December 29, 1931, and although he had in excess of 4,400 patrolmen on the rolls at that time, he nevertheless appointed 42 new patrolmen on December 30th, and 8 new patrolmen on December 31st. The court below found, on abundant evidence, "that the then director first had knowledge that the personnel of the bureau of police for the year 1932 would have to be reduced, on December 10, 1931, and notwithstanding such knowledge he thereafter appointed 179 patrolmen, filling up the ranks of 4,530 patrolmen, and then arbitrarily selected for discharge 130 patrolmen."
The form, i. e., the "mechanics" of the act of the director in eliminating 130 policemen as an economy measure, has theappearance of legality, but when we look below the surface, the act has the substance of illegality and is exposed as an attempt to take away the protection the statute has placed around a policeman's job. Any court has a right to look behind the mere form or appearance of an act to find out what lies behind it and what its substance is. Chief Justice SHAW aptly said in Com. v. Hunt et al., 45 Mass. 111: "The law is not to be hoodwinked by colorable pretenses; it looks at truth and reality through whatever guise it may assume."
The evidence shows that the plea of economy made by the director as a justification for the removal of these patrolmen was only a "guise" for the evasion by him of the Civil Service Law. If he was interested only in economy, why should he during the sixteen days next ensuing after he made the "economy proposal" appoint 179 new *Page 477 policemen? There was no "emergency" or anything else calling for it. None is even alleged. I think the evidence shows that the appointment of these policemen was made so that the director could at the end of the year for reasons satisfactory to himself eliminate from the police force 130 of the veteran policemen against whom apparently no charges could be filed which under the Charter Act would constitute cause for their dismissal. That they in fact received "honorable discharges" shows that they were not removed for legal "cause" within the meaning of the Charter Act. Seven of the policemen discharged had entirely clear records, i. e., they were never guilty of an infraction of any of the many rules of the department. Another discharged policeman was a man who on September 10, 1930, was chosen for the "Public Ledger" award of $1,000 for performing the outstanding feat of bravery in the department in that year. One of the policemen discharged not only had a clear record but also had commendations.
When questions similar to the one now before us have been before the courts of other states, they have not hesitated to determine whether or not an officer was discharged on the mere pretense that his office was to be abolished in the interests of economy or for some other valid reason. Courts undoubtedly have the power to inquire into the good faith of officials in taking such action as is complained of here. In People v. La Grange, 7 N.Y. App. 311, the court held: "The only question before the court was whether the action of the commissioners of the fire department in discharging the relator was a legitimate exercise of the power they possessed to abolish the office he held and thereby dispense with his services, or was a mere pretext to remove him in order that they might put some one in his place. It is manifest that the relator was discharged on the mere pretense that his office was to be abolished, and a man named McLewee was immediately assigned to do the same work that the relator had done. This man McLewee had been an employee *Page 478 of the fire department, filling a place which had been abolished by a resolution of the board, which resolution remained unrescinded at the time this relator was removed from his position, and it is painfully apparent that the relator was thrust aside simply for the purpose of retaining McLewee in the employment and under the pay of the board, although the place he had filled had been abolished."
In Throop on Public Officers, Book III, chapter XVI, section 347, is this statement: "But a power conferred upon police commissioners to remove subordinates for the purpose of reducing the force, cannot be exercised to create a vacancy for the appointment of another person."
In Garvey v. City of Lowell, 199 Mass. 47, 85 N.E. 182, the Supreme Court of Massachusetts said: "Accordingly, we can have no doubt that the judge rightly admitted the evidence which tended to show that the plaintiff's position was not abolished in good faith for reasons of economy, but that the vote of the board of health was a mere pretext or device to get rid of the plaintiff on account of his refusal to render political service to one of the members of the board; and the findings of the jury were fully warranted by the evidence."
It is conceded in the majority opinion, as Dillon on Municipal Corporations (pages 805, 806, 807, note) says: "The local authorities have no power to discharge an officer or employee of the city upon the pretense that his office is abolished and immediately thereafter assign another person to do the same work which had been done by the discharged employee." The answer made to that is: "Nor has that been done here." As I view it, it was done. There is to me no visible difference between the concededly illegal act of discharging 130 patrolmen on the ground of economy and then immediately afterwards appointing their successors, and the act done here, i. e., hurriedly "padding" the police force by more than 130 new appointments when it is known to the appointing *Page 479 power that within two weeks, the police force will have to be reduced by 130, and then proceeding at the end of those two weeks to reduce the force by eliminating 130 veterans who have never been found guilty of any act warranting their dismissal from the force.
If the director had the legal right under the facts appearing in this record to substitute 130 new patrolmen for 130 veteran patrolmen against whom no charges had been preferred as provided by law for the removal of patrolmen, any director can by similar methods remove almost any number of patrolmen from a force. He can, for example, allow a force of 4,500 men to dwindle down to 3,500 men, and then successfully propose to the council that at the end of the year in the name of "economy" the force be fixed at 3,500 men, in the meantime appoint new patrolmen up to the then existing standard of 4,500 men, and at the end of the year, eliminate 1,000 of the veteran policemen. I would not allow article XIX (the civil service article) of the Act of June 25, 1919, supra, for the better government of cities of the first class of this Commonwealth, to be circumvented in this manner. Thus to treat faithful officers under the protection of the Civil Service Law is to flout its spirit and to thwart its purpose.
To uphold the act of the director as illegal and void we do not have to impugn the good faith of the mayor and city council then in office. It was the director, who on December 14, 1931, suggested a saving in his department by the elimination of 130 patrolmen positions and 100 firemen positions. The council naturally and properly accepted such a proposal from the head of the department of public safety as he was in a better position than they were in to determine the police requirements of Philadelphia. This councilmanic acceptance of the director's "economy plan" and the further fact that the actual number of policemen on the force was at that time 179 less than the then legally permissible quota of 4,530, afforded the director his obviously desired opportunity *Page 480 to dismiss arbitrarily from the force 130 policemen whose records in the department were barren of any legal excuse for a policeman's removal. This opportunity was eagerly grasped and during the same sixteen-day-period the director was with one hand selecting 130 veterans to be removed, and was with the other hand selecting 130 raw recruits to take their places. Such autocratic action, if unreversed, makes this Commonwealth's promise in the Civil Service Law that "no police officer shall be removed except for cause, upon written charges and after an opportunity to be heard in his own defense" just another "scrap of paper."
As this is a suit for mandamus asking for the reinstatement of patrolmen, it is not necessary to discuss the question as to where the money is coming from to pay them for the services which they have been ready and willing to perform since the date of their illegal removal. That question is not before us. The question whether there was "a previous appropriation by the council" to pay for the services of these policemen has no more to do with the question before us than the question of an appropriation for the satisfaction of a judgment which a plaintiff might be seeking against the City of Philadelphia for an alleged breach of contract would have to do with the question: Was there a breach of contract? There might be a breach of contract by a city or an individual and there might be a resulting liability and yet this liability might be unenforceable for lack of funds. It is a fair assumption that there was at all times "a previous appropriation" covering the salaries of policemen, and as these appellees were policemen and not legally removed, they would be entitled to their share of that appropriation. If the appropriation has all been consumed before they were paid, that fact would not affect their status as policemen. An illegal removal of a policeman does not become legal simply because after the illegality of his removal is established, there are no funds presently available for his back pay. For example, *Page 481 if there were no funds available to pay the policemen of Philadelphia for their services during the current year, that would not automatically remove them from their positions any more than a failure on the part of the state legislature to provide funds for the payment of the salaries of the governor and of the judges of the courts would automatically remove them from office. What will our Civil Service Law amount to if those protected by it are to be removed arbitrarily and without trial, and then when they come to the courts, suing for reinstatement, they are to be told that their suits must fail because the appropriation for their salaries has all been consumed and no new appropriation for such salaries can be made?
We are here and now concerned only with the removed policeman's right to their position of policemen. We are not concerned with the question of the liability of the city for their back salaries and certainly not concerned with the question where the money will be obtained to pay these back salaries. I have no doubt that these policemen are more concerned with being reinstated to their positions from which they were illegally removed and their future employment as policemen than they are with the question of "back pay." The legal rights of these policemen have clearly been invaded and they are entitled to judicial protection against that invasion. No one in this Commonwealth has ever challenged the statement of Blackstone in Book 3, chapter 3, that "it is a general and indisputable rule, that where there is a legal right there is also a legal remedy, by suit or action at law, whenever that right is invaded."
In Storm v. City of Scranton, 77 Pa. Super. 283, it was held that a fireman in the fire department of a city of the second class, can only be dismissed upon his own written consent, or after trial in accordance with the provisions of the Act of March 7, 1901, P. L. 20; and that in the absence of any evidence of such dismissal, one thus employed and ready to give his services to the city *Page 482 may recover the salary incident to the position to which he was appointed.
In Jenkins v. Scranton, 205 Pa. 598, 55 A. 788, this court held that where a person was appointed collector of delinquent taxes in a city of the second class, and subsequently the city treasurer was appointed to the same office, and the first appointee was not formally removed by the city recorder and there was neither proof nor an attempt to prove that he was ever notified by the recorder that he had been removed, the first appointee is entitled to receive the salary of the office.
The evidence fully warrants the 21st finding of fact of the court below "that the appointment of the then director of 179 probationary patrolmen between December 15th and December 31, 1931, when he had knowledge that the personnel was to be reduced from 4,530 to 4,400 for the year 1932 was an effort by the director to fill up the ranks to the number of 4,530 in order to permit him to later remove by apparently lawful means the 130 men whom he removed, when he should have refrained from making any appointments over the number of 4,400."
The evidence fully warrants the court below in stating in its 22d finding of fact that the then director "resorted to the subterfuge of making 179 appointments when he knew the personnel was to be reduced for the year 1932."
The evidence fully warrants the 23d finding of fact of the court below that "dismissal of the plaintiff and 129 other officers for alleged reasons of economy cannot be justified when 179 probationers were appointed, who had no uniforms or equipment and who could not do police duty for 90 days, while the 130 officers who were dismissed were veterans, some for 18 and 19 years, and had experience, uniforms, and the necessary equipment to function as police officers."
I agree with all the conclusions of law of the court below, and I cite particularly the following:
"4. The director of the department of public safety did not dismiss the plaintiff in good faith for reasons of *Page 483 economy, because if he did he would not have appointed 179 new probationers. He merely used the pretext of economy and reduction in personnel for the purpose of dismissing the plaintiff for his own personal reasons.
"5. The plaintiff was dismissed not because of the reduction in personnel or for reasons of economy, but merely to make way for a probationary appointee of the then director."
"10. The then director of the department of public safety appointed 179 probationary patrolmen for the purpose of enabling him to thereafter dismiss the plaintiff and the other 129 patrolmen, and such action on the part of the director is illegal and plaintiff has been illegally dismissed and is entitled to be restored to his position."
The majority opinion invokes the doctrine that when an official of a municipality is acting in a governmental affair of the city, the city is not responsible for such an official's malfeasance or misfeasance. This doctrine has no application whatsoever to a case like the one now before us. It applies to actions in trespass for damages against a municipality. The various cases cited by the majority opinion in support of this proposition demonstrate this to be the fact. For example, in Devers v. City of Scranton, 308 Pa. 13, 161 A. 540, cited in the majority opinion, the appellant sued in trespass to recover damages for the death of his adult son who was run down and killed by a motor-driven fire ladder truck of the city. This truck was operated by a member of the paid fire department and was responding to an alarm. The trial judge entered a nonsuit on the ground that the municipality was not liable in damages for the negligent operation of its fire trucks while responding to a fire. The order of the court below was affirmed. Szilagyi et al. v. Bethlehem, 312 Pa. 260, 167 A. 782, cited in the majority opinion, was also an action in trespass. This court there held that a municipality could not be held liable by unpaid laborers or materialmen for the municipality's failure *Page 484 to procure statutory bonds to protect labor and materialmen. Scibilia v. Phila., 279 Pa. 549, 124 A. 273, also cited in the majority opinion, was an action against the municipality for the tort of one of its servants, to wit, the driver of a truck of the street cleaning department of the city. It was held that the city was not liable. If the appellee in the present case was suing the City of Philadelphia because Director Schofield, while proceeding in his car on official business, ran over the appellee and injured him, it would be a case analagous to those cited in the majority opinion. No one questions the doctrine that torts cannot arise from the performance of governmental services. The appellee is complaining not of a tort, but of the taking away of his statutory right to a public position. The present proceeding is a suit for mandamus for reinstatement in a position from which the petitioner was arbitrarily removed without legal authority or power by the director of public safety. The action of the director of public safety in attempting to remove these police officers is, in my judgment, as much a nullity as would be the action of the governor should he attempt to remove judges from the offices to which they have been commissioned. Judges are protected in their right to office by the Constitution and they can be removed only in the manner provided by it. Likewise, policemen are protected in their right to their positions by the statutes of Pennsylvania, and they can be removed only in the manner provided by law. It was said by Chief Justice MARSHALL in Marbury v. Madison,5 U.S. 137, 162: "Mr. Marbury, then, since his commission was signed by the president, and sealed by the secretary of state, was appointed [justice of the peace]; and as the law creating the office gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable, but vested in the officer legal rights, which are protected by the laws of his country. To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested *Page 485 legal right. . . . . . . If he has a right, and that right has been violated, do the laws of his country afford him a remedy? The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection."
This court has heretofore not hesitated to protect public officers from attempted illegal removals. In the case of Com. ex rel. Attorney General v. Benn, 284 Pa. 421, 131 A. 253 (1925), this court decided that the Act of July 25, 1913, P. L. 1374, which provided that the governor, by and with the consent of the senate, may remove any public service commissioners, is exclusive, and does not give the governor an alternative or additional method of procedure in removing commissioners, even though article VI, section 4, of the Constitution does provide that appointed officers, other than judges of the court, may be removed at the pleasure of the power by which they shall have been appointed. In the recent case of Souder v. Phila. et al.,305 Pa. 1, 156 A. 245, Mr. Justice KEPHART, in his dissenting opinion, said: "Police officers devote their services to the government, they have a distinct valuable property in their employment. It should be protected and preserved against an unfounded attack. The city charter of Philadelphia recognizes this obligation to these officers and this court has recognized it by protecting them from unwarranted attack. The principle was asserted that no officer should be dismissed from service unless it was for a cause not only charged but proved. There is no reason why the rule of conduct so well expressed by the majority opinion should not apply to every public office holder." The majority opinion in that case was not at variance with this quotation from Justice KEPHART'S opinion. The majority opinion held that the Civil Service Commission of Philadelphia had a right to consider and pass not only upon the question of wrongdoing alleged against an officer of the police, *Page 486 but also upon his conduct in its bearing on the discipline of his subordinates and upon the discipline and morale of the entire force, and that what constitutes cause for removal must necessarily be a matter of discretion in the commission. See Com. v. Phila., 273 Pa. 332, 117 A. 180, and McCoach v. Phila.,273 Pa. 317, 117 A. 71.
Another case cited in the majority opinion but which is wholly inapplicable here is that of Keim v. United States,177 U.S. 290. In that case an employee of the department of the interior was discharged because his rating was inefficient. It was held that the courts of the United States could not supervise the action of the head of the department of the interior in discharging him. It was also held that the law nowhere conferred upon the courts the right to supervise the results of a civil service examination or to investigate the actual work done by the various clerks so that their relevant competency may be determined. In that case Mr. Justice BREWER said: "These are matters peculiarly within the province of those who are in charge of and superintending the departments." He cited section 3 of the Act of August 15, 1876, 19 Stat. 169, which gives the heads of the departments, the right to assign to a clerk of a lower class the duties theretofore assigned to a clerk of another class, etc. Justice BREWER also cited section 7 of the United States Civil Service Act of 1883, 22 Stat. 406. He said: "These sections do not contemplate the retention in office of a clerk who is inefficient, nor attempt to transfer the power of determining the question of efficiency from the heads of departments to the courts."
In the case now at hand there was no charge of inefficiency and no complaint about the rating of the policemen, and it appears on the record that the Civil Service Commission of Philadelphia disapproved of the removal of these policemen. If there was any legal reason for their discharge the law of Pennsylvania provides a method for doing so. This method was not resorted to. *Page 487 The director arbitrarily selected the policemen to be removed. He had no more right to do this than he had to select for removal any other policeman whose right to his position is guaranteed by the Civil Service Law, and who can be removed only by due legal process.
Here then we have before us an act by the director of public safety not only in utter disregard of the laws of the Commonwealth, but contrary to the will of the Civil Service Commission of Philadelphia. It is on this record that at a regular meeting of the commission the matter of the removal of these officers was considered by the commissioners and they were unanimous in their conclusion that the officers were illegally dismissed, and that the director had no right to discharge any of them. Furthermore, the civil service commission, on petition by the plaintiff, conducted a public hearing, and ordered and decreed that the plaintiff and 112 of these patrolmen be reinstated, the other 17 of the 130 patrolmen having been placed on the pension list. I cannot conceive of a plainer violation than that now before us, of the law (Act of June 25, 1919, P. L. 581) that "no police officer, except those dismissed during probationary period, shall be removed or discharged, upon written charges, and after an opportunity to be heard in his own defense."
I believe that the language of Judge CARDOZO in People v. Williams, 213 N.Y. 130, 107 N.E. 49, is applicable here: "We think that if a new position, similar to the relator's, was created at the same time that the relator's was abolished, the commissioner was required, in filling the new position, to prefer the relator over others. The law will not permit him, for the purpose of ousting the relator and installing some one else to reduce the positions with one hand and increase them with the other . . . . . . . The commissioner makes no claim that he intended that the new men should succeed to any specific position from among the total number of positions ostensibly abolished. If it cannot be said with certainty that either of them took the place of the relator, it cannot be *Page 488 said with any greater approach to certainty that they took the place of any one else. All that we can say with certainty is that in the very act of declaring some 10 or 12 places unnecessary and abolished, two new places of the same nature were created; and the relator, because of his preferred right to reinstatement, was entitled, in our judgment, to be appointed to one of them. To deny to him that measure of preference would do violence alike to the spirit and to the letter of the statute."
I would affirm the judgment of the court below.