279 Pa. 356 | Pa. | 1924
Opinion by
Goldberg was appointed to the police force of the City of Philadelphia in 1911, and served as patrolman until
The director of public safety denied the validity of the ruling, and refused to permit the defendant to resume his occupation. Thereupon, a writ of alternative mandamus was requested, having for its purpose Goldberg’s reinstatement. A motion to quash was dismissed, and a return was then filed by the city officials to whom it was directed. A demurrer was interposed, and subsequently sustained in an opinion by the learned court below.
Two questions are raised on the present appeal. It is first insisted that, under the Charter Act (June 25, 1919, P. L. 581), the only power of the Civil Service Commission, after hearing had, is to acquit the defendant of the charges made, or discharge from the service of the city, and, second, that, the defendant having been found guilty, the commission had no authority to rehear, and, without changing its verdict, modify its sentence of dismissal to one of suspension.
The Bullitt Bill (June. 1, 1885, P. L. 37, article III, section 1), provided a police board to conduct the trial of offenders, and gave to the director of the Department of Public Safety the power to impose fines, to suspend from
In view of the failure to expressly grant the right to suspend as a sentence rather than remove, it is insisted that no such discretion was lodged in the commission. An examination of the legislation leads to the belief, however, that the authority to so permit for the infraction of rules or laws was intended to be conferred, as it had been in plain words by the Bullitt Act of 1885. Many cases might arise where the discharge from service would be unduly severe, in view of the charges proven. No power of suspension is given to any other tribunal, except the limited one to the superior officer, for á period not exceeding thirty days, until a hearing could be had before the Civil Service Board. The right to remove necessarily includes the privilege of imposing a less sentence, if the facts developed at the trial do not
It is true we have held the word “discharge” does not include a “demotion” in rank, which may be ordered when deemed necessary for the good of the service (McCoach v. Phila., 273 Pa. 317), but are of the opinion that the authority to impose a sentence of discharge includes the right to remove for a limited period, when the offense does not justify greater punishment, in the absence of some specific prohibition in the statute.
Appellant further insists that the verdict of guilty of the charges made makes impossible a review of its decision by the commission, notwithstanding the fact that the after-discovered evidence clearly showed that an error was committed. The duty of the trial tribunal, when it found that an injustice had been worked, required it to do what it could to correct its mistake. The only manner by which this could be accomplished was a rehearing, and this was granted. It has been distinctly held such was the proper course to pursue by the police board, under the Bullitt Act of 1885, already referred to (Gallagher v. Blankenburg, 248 Pa. 394), and the same can properly be said where the trial was had by the Civil Service Commission under the later legislation. No limi - tation of time has been fixed for reconsideration of the sentence already imposed, as in the case of criminal proceedings, where such action is required before the end of the term at which the judgment was rendered: Com. v. Mayloy, 57 Pa. 291. In the absence of some rule of law limiting the period in which the application can be made, we see no reason why an obvious error should not be corrected, and this is what was done. The reversal of the previous findings of Gallagher v. Blankenburg, supra, was made more than four months after the original decision. Here, the necessary evidence was not discovered until five and one-half months had elapsed.
It follows from what has been said that the patrolman should have been reinstated, and this duty can properly be enforced by mandamus. The learned court below so decided, and with its conclusion we agree.
The judgment of the court below is affirmed at the costs of appellant.