76 Pa. Super. 124 | Pa. Super. Ct. | 1921
Opinion by
The case came before the lower court upon the petition of Edward J. Maginnis, the third assistant district attorney of Schuylkill County, praying that a writ of mandamus issue to the county controller commanding him to approve the bill for the salary of the petitioner. He had been regularly appointed the third assistant district attorney on January 5, 1920, by the district attorney of the county, under the Act of July 17,1919, P. L. 995, the population of said county at that time being more than two hundred thousand and less than seven hundred and fifty thousand inhabitants. The bill he presented was for salary for the month of February at the rate of $2,500 per annum.. The Act of 1919, supra, provides that in counties having a population of more than two hundred thousand and less than seven hundred and fifty thousand inhabitants, the district attorney shall have
Article XIV, section 1, of the Constitution provides, “County officers shall consist of Sheriffs, Coroners, Pro-thonotaries, Registers of Wills, Recorders of Deeds, Commissioners, Treasurers, Surveyors, Auditors or Controllers, Clerks of the Court, District Attorneys and such others as may from time to time be established by law.” Article XIV, section 5, provides, “In counties containing over a hundred and fifty thousand inhabitants all county officers shall be paid by salary and the salary of any such officer and his clerks heretofore paid by fees shall not exceed the aggregate amount of fees earned during his term and collected by or for him.” The total receipts of the office of district attorney for the month of January, 1920, were not sufficient to pay the salaries of district attorney and his assistants, and the expenses of the office, and the controller refused to pay the warrant because it did not appear that the earnings of the office were sufficient to pay the salaries of what he termed deputy district attorneys and the expenses of the office.
The question therefore for decision is whether an assistant district attorney comes within the terms of section 5, of article XIV, of the Constitution, which limits the salary of the district attorney and his clerks to the fees received. Is the assistant district attorney a “clerk”?
The Act of March 31, 1876, P. L. 13, as stated in its title, was passed to carry into effect the above section of the Constitution, and provides the payment of their fees into the proper county treasury by county officers and a reduction of the salary if the aggregate of the fees does not suffice to pay the amounts fixed for them. The act,
The word “assistant” is not equivalent to that of “clerk” or “deputy.” In common speech the word “clerk” refers to a different class of persons than “assistant.” The assistant district attorney performs the same functions as the district attorney. He prepares cases and tries them, comes in contact with the court, and performs duties which are not usually performed by n clerk. He requires the same skill and learning as th& district attorney, and when trying cases has independent control and direction of matters. Under the United
The judgment is reversed, and the lower court is directed to issue the mandamus as prayed for.