Davis v. Homestead Borough, 1911 Pa. Super. LEXIS 176

Davis v. Homestead Borough

1911 Pa. Super. LEXIS 176

Pa. Super. Ct.

1911

Check Treatment

Opinion by

Orlady, J.,

By thе case stated it appears that the plaintiff was elected burgess of the borough of Homestead, in Alie*446gheny county, in February, 1909, for a term of three years, and was inducted into office on ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍or about March 1, 1909, from which date he held and still holds the office of burgess.

Under the provisions of the act of assembly in fоrce at the time he became burgess, he was entitled to certain fees and costs in the exercise of his jurisdiction and authority in the enforcement of borough ordinances, as well as in the collection of fines and penalties imposed under the same. By the act of assembly, dated April 23, 1909, P. L. 154, the councils of the several boroughs in this commonwealth, were empowered to fix, by appropriate ordinance, the salary to be paid annually out of the borough treasury, to the burgess of such borough. And by the third section it is provided that such salary “shall be in lieu of all costs and fees allowed a burgess by existing law; which сosts and fees shall be collected by such burgess, and turned into the borough treasury monthly, together with a sworn statement of the same.”

On July 11, 1910, the defendant borough enacted an ordinance under the provisions of thе act just quoted, providing that the salary of the burgess of the borough of Homestead should be fixed at the sum of $900 per year, and that the salary “is hereby declared to be in lieu of all costs and fees collected by said burgess by authority of law, and the burgess shall pay all costs and fees by him collected' into the trеasury of the borough of Homestead.” The plaintiff collected fees and costs, etc., to the amount of $560.35, from August ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍27, 1910, to November 1, 1910, and on demand by the proper officer, this amount was paid into the borough treasury, under protest. This case stated was submitted to determine whether the act of April 23, 1909, and the ordinаnce of the council fixing the salary of the plaintiff after his election, at the sum of $900 per year, is in violation of art. Ill, sec. 13, of the constitution of Pennsylvania. The learned court below held that the ordinance in question is but a municipal regulation, and not a law within the meaning of the con*447stitutional prohibition, and as such it is valid and binding upon the plaintiff, and thereupon entered a judgment for the defendant.

There havе been a number of acts of assembly relating to the authority of boroughs to prescribe by ordinancе, the salary to be paid out of the borough treasury to the burgess in lieu of fees, fines and costs. The first is the Act of April 13, 1876, P. L. 27, which is amended by the Act of June 24, 1895, P. L. 255, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and the Act of April 7, 1905, P. L. 116, which is amended by the Act of April 15, 1907, P. L. 61. The act of 1909 is but a re-enactment of the former ones, and is the same in substance except that it provides that such salary, when so fixed by ordinance, shall not be changed during the term of an incumbent.

The force and effect of such an ordinance is fully considered and definitely determined in Baldwin v. Philadelphia, 99 Pa. 164, in which the salary оf the mayor of the city was involved. In that case it was held, “The ordinance of council by which the plaintiff’s salary was increased is not a law, and therefore does not come within the constitutional prоhibition. It is a mere local regulation for the city of Philadelphia. It has, perhaps, the force оf a law, in the community to be affected by it, but it is not prescribed by the supreme power, and it concerns only a subdivision of the state, and does not rise to the dignity of a law. There is no ambiguity in this section of the constitution. It is clear and explicit, and when the provisions ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of sec. 13, art. Ill, declares that “no law shall extend the term of any public officer, or increase or diminish his salary or emoluments after his election оr appointment,” the obvious meaning is that the general assembly shall not pass such a law. There is nothing in the article, even by implication, that would justify us in extending the word law to an ordinance of a city. Such an interpretation would not be expounding the constitution, but would be altering it.” This construction of the effect tо be given this article has been consistently followed by the Supreme Court. See Crawford Crawford v. *448Nash, 99 Pa. 253; Merwine v. Monroe County, 141 Pa. 162; Klingler v. Bickel, 117 Pa. 326; McCormick v. Fayette Co., 150 Pa. 190; Edwards v. McLean, 23 Pa. Superior Ct. 43.

It is stated in P. & R. R. R. Co. v. Ervin, 7 W. N. C. 73, in refеrence to ordinances, that they are “but police regulations, enforceable by penаlties which are recoverable by actions of debt or otherwise, as may be prescribed.” It follows that such a municipality cannot pass a law; and such an ordinance as is involved in this case determining the plaintiff’s salary not being a law, is not within the meaning of the thirteenth section of article three. That section applies exclusively to acts of the legislature and does not apply to ordinanсes of a municipality. A burgess is not a public officer, and his duties are limited to the enforcement of local regulations; he cannot be said “to exercise grave functions by virtue of his office” as burgess, and is not clothed at the time being, with some of “the power of sovereignty,” to meet the requirements of а public officer as defined in Richie v. Philadelphia, 37 Pa. Superior Ct. 190; s. c., 225 Pa. 511, on which the plaintiff relies as controlling the cаse at bar. We do not ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍think this case modified in any way that of Baldwin v. Philadelphia, 99 Pa. 164.

The assignment of error is overruled. The judgment is affirmed.