Opinion
Argued November 11, 1954.
January 3, 1955.
Municipalities — Philadelphia — Employes — Unskilled laborers — Civil Service preferences — Veterans' Preference Act of May 22, 1945, P. L. 837.
The Veterans' Preference Act of May 22, 1945, P. L. 837, is applicable to the appointment of unskilled laborers to the Civil Service of Philadelphia.
Before STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.
Appeal, No. 254, Jan. T. 1954, from judgment of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1953, No. 3902, in case of Robert Eggleston and Nolan Cobb v. City of Philadelphia et al. Judgment affirmed.
Proceeding upon petition for declaratory judgment.
Philip Richman, with him Richman Richman, for appellants. Jerome J. Shestack, First Deputy City Solicitor, with him Herbert M. Linsenberg, Assistant City Solicitor, and Abraham L. Freedman, City Solicitor, for appellees.
This is a petition for a declaratory judgment to construe the Act of May 22, 1945, P. L. 837, 51 P. S. § 492.1, known as the Veterans' Preference Act. More particularly, the petitioners seek a declaration that Section 4 of the above Act, which gives veterans certain Civil Service preferences, does not apply to the appointment of unskilled laborers under Section 7-401 (1) of the Philadelphia Home Rule Charter and Civil Service Regulation 18.
Defendants' position is that Section 4 of the Act does apply and that veteran unskilled laborers should be given preference.
There is only one fact, and it is not disputed: petitioners, who are not veterans, hold provisional appointment as street sweepers. They are in danger of losing their employment because the City proposes to replace them with veterans.
Section 4 of the Act reads as follows: "Whenever any soldier possesses the requisite qualifications and is eligible to appointment to or promotion in a public position, where no such civil service examination is required, the appointing power in making an appointment or promotion to a public position shall give preference to such soldier.
"Whenever any soldier possesses the requisite qualifications, and his name appears on any eligible or promotional list, certified or furnished as the result of any such civil service examination, the appointing or promoting power in making an appointment or promotion to a public position shall give preference to such soldier, notwithstanding, that his name does not stand highest on the eligible or promotional list.
"In making an appointment or promotion to public office where such a civil service examination is required, the appointing or promotional power may give preference to any soldier, who has passed the required examination for appointment or promotion to such position, and possesses the requisite qualifications, although his name does not appear on the eligible or promotional list certified or furnished to the appointing or promoting power."
Section 7-401 (1) of the Home Rule Charter requires the Civil Service Regulations of the City to provide for: "The appointment of unskilled laborers after such qualifying tests of fitness as the Personnel Director may prescribe."
Pursuant to this provision, the Civil Service Commission of Philadelphia adopted Regulation 18, which reads: "18.1 General Provisions. The Director shall establish as necessary, eligible lists for unskilled laborers and such lists shall be used for certification only to positions allocated to the following classes of unskilled laborers: Street Sweeper I, Street Sweeper II, Laborer,
These lists shall not be used to fill positions in any classes in the civil service for which competitive examinations are required. (Emphasis supplied.)
"18.2 Examinations and Eligible Lists. The Director may provide a special form of application for unskilled laborer positions. Every applicant for appointment to unskilled laborer position shall be required to pass such medical, physical and other qualifying tests of fitness as may be prescribed by the Director. The candidates who pass such tests shall be placed upon the resulting eligible list solely upon the basis of successfully passing the tests and without regard to rank or scores. An eligible list obtained for unskilled laborers shall be used to certify when necessary to the three classes specified in Section 18.1 above.
"18.3 Appointment. The appointing authority may appoint any person who has passed qualifying tests of fitness as prescribed in Section 18.2 above.
"18.4 Duration of Eligible Lists For Unskilled Laborers. An eligible list for unskilled laborers shall continue in force for at least one (1) year from the date of its establishment and thereafter until exhausted or replaced by a more recently prepared list but in no case longer than two (2) years."
Petitioners argue that the first paragraph of Section 4 of the Act cannot apply to them because it deals with positions not under Civil Service: the words "where no such civil service examination is required" show, they contend, that the paragraph does not cover them. They further argue that paragraphs 2 and 3 of Section 4 do not apply either because they use the term "eligible list", which can mean only a list of persons who have taken a competitive examination, who have received numerical grades, and who appear on the list in the order of their grades. Petitioners, on the other hand, take an examination but are not graded except for receiving a failing or passing mark, with the result that an undifferentiated pool of unskilled laborers is created from which any name may be selected for employment. This is not an "eligible list", according to the petitioners' contention, and hence veterans' preference should not apply in the selection of names for employment.
We see no merit in this reasoning, despite the strict construction that should be given to veterans' preference acts: Preferential Treatment of War Veterans. No. 3, 45 Pa. D. C. 311 (1942), at p. 315.
In our opinion, the first paragraph of Section 4 of the Act does apply and requires preference to veterans.
To clear up the reference, in said first paragraph, to "such civil service examinations", Section 3 of the Act reads as follows: "Whenever any soldier shall successfully pass a civil service appointment or promotional examination for a public position under the Commonwealth, or any political subdivision thereof, and shall thus establish that he possesses the qualifications required by law for appointment to or promotion in such public position, such soldier's examination shall be marked or graded an additional ten points above the mark or grade credited for the examination, and the total mark or grade thus obtained shall represent the final mark or grade of such soldier, and shall determine his standing on any eligible or promotional list, certified or furnished to the appointing or promoting power." 51 P. S. § 492.3.
This defining reference means an open, competitive, and graded examination as opposed to a qualifying test ungraded except for passing or failing. The distinction is no doubt due to the constitutional necessity that a veteran's qualifications must be established before he can be preferred: see Wood v. Philadelphia, 46 Pa. Super. 573 (1911); Commonwealth, ex. rel. v. Schmid, 333 Pa. 568 (1938); and Commonwealth, ex. rel. v. O'Neill, 368 Pa. 369 (1951).
Against the constitutional background, it becomes clear that a qualified veteran is entitled to preference, but his qualifications must appear. The legislative intent is obviously to require of unskilled laborers a test less stringent than a competitive civil service examination with grades, and to make them eligible for employment by some other qualifying means. Section 7-401(1) of the Charter requires "qualifying tests of fitness", and Civil Service Regulation 18 repeats this requirement and provides for eligible lists which "shall" not be used to fill positions in any classes in the civil service for which competitive examinations are required". On this basis, eligible lists for Street Sweeper I, Street Sweeper II, and Laborer are expressly mentioned.
We see no difference between an "eligible list" that results from a competitive, graded examination and one that results from a qualifying test. Both types are provided for explicitly, those having to do with the results of competitive, graded examinations appearing in Sec. 7-401(f) of the Charter and in Civil Service Regulation 10.1 and 10.2. They are not in any way mutually exclusive but are designed to implement the two main forms of determining qualifications, namely, the competitive examination and the qualifying test.
While the exact point has not been decided, two opinions by the Attorney General are persuasive. They deal with ancestor legislation — the Acts of 1939 and 1941 — which are identical or substantially identical with Section 4 of the 1945 Act.
In Preferential Treatment of War Veterans. No. 2, 38 Pa. D. C.129 (1940), the Attorney General said: "Whenever a soldier . . . possesses the requisite qualifications and is eligible to appointment to such public position, where no civil service examination is required, the appointing power must appoint such soldier to such position, provided he is morally and physically fitted for the position."
In Preferential Treatment of War Veterans (No. 3), supra (45 Pa. D. C. 311 (1942)), the Attorney General said: "Although there is no express provision in the Veterans' Preference Act of August 5, 1941, supra, regarding the selection of provisional appointees, the above section 4, par. 1, provides that where no civil service examination is required the appointing power in making an appointment to a public position shall give preference to a soldier. It would appear, therefore, that since the preference is generally provided for the entire service of the Commonwealth it would include the appointment of provisionals, since 'no Civil Service examination is required' for them and they are outside the classified service and can never become a part of the classified service until they qualify under the provisions of the Civil Service Act, supra. See McCartney v. Johnston et al., 326 Pa. 442 (1937)."
Our declared judgment is, therefore, that the Veterans' Preference Act of May 22, 1945, P. L. 837, 51 P. S. § 492.1, is applicable to the appointment of unskilled laborers to the Civil Service of Philadelphia.
Judgment entered for defendants. Plaintiffs appealed.
The judgment of the court below is affirmed on the opinion of President Judge BOK.