City of Wilkes-Barre v. Meyers

| Pa. | Oct 4, 1886

Mr. Justice Trunkey

delivered the opinion of the Court,

The plaintiff was appointed a police officer in 1881, and removed in April, 1884. Because of sickness he quit duty before the end of October, 1883, and performed no service during the next five months. In April, 1884, he served one week and was then removed. This action is to recover compensation for the five months during which he rendered no service.

In the city of Wilkes-Barre the compensation of policemen is fixed by resolution of council, and in 1853 was sixty dollars per month, payable monthly. An ordinance provides that “Any patrolman absent from duty without leave shall forfeit all pay for the time of such absence, and be fined, reprimanded or dismissed from the force, at the discretion of the council, except in cases of sickness when properly certified by a physician.”

No physician certified that the plaintiff was sick. The members of the council knew it, but neither the council nor any committee gave him leave of absence, or in any way dispensed with the certificate.

It is contended by the plaintiff that his case is within the principle adopted in O’Leary v. City of New York, 93 N.Y., 1" court="NY" date_filed="1883-06-05" href="https://app.midpage.ai/document/oleary-v--board-of-education-of-city-of-ny-3610962?utm_source=webapp" opinion_id="3610962">93 N. Y., 1. But in that case the facts were different. There the plaintiff was first excused, then given leave of absence for an indefinite time, by the proper officer, and in September following the board removed him, the removal to take effect on the first of the preceding May. The Court held that the “defendant having excused the plaintiff for good and sufficient reasons from a temporary discharge of duty, and failing to take any action indicating an intention to relieve him from bis office, must be regarded as assenting to his absence, and is estopped from insisting or claiming that the plaintiff was not in its employment.”

It is well settled that a person holding a public office has a jvrima facie right to the salary thereof, although he be physically disabled from performing bis duties. If there be no law or regulation authorizing the discontinuance of the compensation during the disability, the only remedy is his removal. It may be granted that police officers are not excepted out of this general rule. But there was a regulation of the city providing that the officer absent from duty without leave should forfeit all pay during the time of such absence, except when sick and so certified by a physician. The plaintiff forebore to procure and give the certificate; the council forbore.to remove him. Had he brought himself within the exception, the councils at once might have ended liability by his removal. Under the circumstances the council preferred not to act. There is no pretence that his sickness was of such a nature as to prevent him procuring a certificate. The provision in the ordinance has like force as would a similar stipulation in a contract between employer and employé. That such contract binds the party was decided in Noon v. Salisbury Mills, 3 Allen, 340. The defendant’s points should'have been affirmed.

The defendant further contends that the Act of July 7th, 1879, P. L., 194, enlarging the jurisdiction of justices of the peace, is unconstitutional, and, therefore, the justice had no jurisdiction. The Act contains a proviso that it shall not apply to magistrates in cities of the first class. If this proviso shall be taken according to the literal meaning of its words the Act is void. However, is it not clear that the intention was only to except Philadelphia from the operation of the statute ?

Cities containing a population of three hundred thousand, or over, shall constitute the first class: Act May 23d, 1874. Philadelphia is the only city of the first class in the Commonwealth. It is notorious that there has been much legislation specially for Philadelphia, though expressed to be for cities of. the first class. That phrase is sometimes used instead of the name Philadelphia.

The Constitution, Art. V., § 12, provides that in Philadelphia courts shall be held by magistrates, with jurisdiction not exceeding one hundred dollars, in civil cases, and that their civil jurisdiction shall not be increased.

Section 11 of the same article provides that justices of the peace or aldermen shall be elected in the several wards, districts, boroughs and townships ; and the power of the legislature to confer' civil jurisdiction is unlimited. This section applies to all the State except Philadelphia.

Section 7, Art. III., prohibits the passing of any local or special law' regulating the practice or jurisdiction of aldermen or justices of the peace, or extending their powers and duties.

■At the argument it was contended that the legislature could not enlarge the jurisdiction of aldermen and justices of the peace in all the State, except Philadelphia, because such an Act would be local. That would be true if the Constitution itself did not make the exception. In that city the office of alderman is abolished, certain courts created, and the power of Hie legislature to change the civil jurisdiction of, or confer political powers on, said courts, is prohibited. But that city is excepted, and the power of the legislature to enlarge the civil jurisdiction of aldermen and justices of the peace in other parts of the State is unrestrained, save that it shall not be done by a local or special jaw. It must be general for all the State, except as otherwise provided in the Constitution.

Were the word “Philadelphia” in place of the words “ cities of the first class,” there would be no difficulty — -in that case there could be no doubt of the constitutionality of the Act. That the legislature intended by the proviso, in pursuance of the Constitution, merely to except Philadelphia, cannot bo doubted. Surely they did not intend that the Act should not apply to cities of the first class, should there be others besides Philadelphia some time in the future. They intended to enact a law; not to do a vain thing. In the attempt to obey the Constitution and to except Philadelphia out of the statute, they used a periphrasis instead of the proper name ; and the phrase, “ cities of the first class,” may not always mean only Philadelphia. Having reference to the Constitution, and to prior statutes classifying cities, and to the fact that Philadelphia alone is in the first class, can the proviso be construed according to the obvious intent, to save the Act from being a nullity ?

Among the rules for interpretation of statutes are the following :

The interpretation which renders a statute null and void cannot bo admitted ; it is an absurdity to suppose that after it is reduced to terms, it means nothing. It ought to be interpreted in such a manner as that it may have effect, and not to be found vain and illusive.

What tends to render an Act null and without effect, either in whole or in part, and consequently everything that introduces any change already agreed upon, is odious.

A thing within the intention is within the statute, though not within the letter ; and a thing within the letter is not within the statute, unless within the intention.

If such rules ma3 be applied in the interpretation of a statute as respects its subject, with stronger reason should they apply to a clause respecting its territorial operation. Restricting the application of the proviso to the only city in the first class, existing at the date of the Act, or now, and the Act is not a nullity. We are of opinion that the Act, so far as relates to the jurisdiction of aldermen and justices of the peace, is constitutional.

This case will not often be a precedent to save statutes drawn in like manner. Were it not for the provision in the Constitution, for magistrates in Philadelphia, it would be impossible to bold that the phrase “ cities of the first class," means only Philadelphia.

Judgment reversed.