Northumberland County v. Zimmerman

75 Pa. 26 | Pa. | 1874

The opinion of the court was delivered, May 11th 1874, by

Sharswood, J.

There are eight assignments of error, but the questions involved in the decision of the case are so much intermixed in these assignments that it will not be convenient to discuss them seriatim but rather to consider these questions: They are, first: Was the Act of Assembly entitled “ An act for the better protection of person, property and life in the mining region of this Commonwealth,” approved April 12th 1867, Pamph. L. 76, so far as it provides for the appointment of police officers to preserve the peace, and for their payment at the rate of compensation fixed by the governor out of the county treasury, a constitutional exercise of legislative power? We limit the question in this way, because in this case, which is an action by one of the police officers against the county to recover the compensation fixed for his services, we have nothing to do with the legality of all the powers conferred upon the police officers by the' act. Some of these powers may be unconstitutional. In an action of trespass against the officers for the exercise of such unconstitutional powers, that question might arise. But surely if in any aspect the officers were legal they are entitled to compensation. Certainly the preservation of the peace is the great object of government. The Constitution provided for a sheriff, coroner, &c., in each county. These officers were to be selected by the people. But the creation of other peace officers was not expressedly or impliedly prohibited, and no one has ever supposed that it was not entirely competent for the legislature to create such officers and to provide for their appointment in any manner they might deem proper, and to fix their compensation and provide for their payment, either by salaries or fees. Constables were not provided for in the Constitution, nor the deputies and bailiffs of the sheriffs, yet unquestionably they are peace officers. The Constitution nowhere declared the sheriff to be the only officer who could call out the posse comitatus to suppress a riot. Beyond all question the governor could do so as the supreme executive magistrate. He was commander-in-chief of the army and navy of' the Commonwealth and of the militia, and when the posse comitatus of any particular county was insufficient for the purpose he could command the military power of the state to suppress disturbance and maintain order and law in any particular district. No one has ever hinted that it was not in the constitutional power of the legislature to invest the municipal authorities of cities and boroughs with the right to appoint police officers, with all the powers pertaining to preservation of the peace. The learned judge below in his charge to the jury disposed of this question in the most simple and conclusive manner. The legislature has the same right to provide for the payment of special peace officers by a county as it has to provide for the payment of constables, or expenses incurred in trying and punishing offenders by process in the Quarter Sessions. We have never heard it urged as a reason why a county should not be liable to defray such expenses because the offence was committed in a township especially interested in bringing the offender to punishment. That the powers confided to the governor to appoint these officers and to determine their compensation might be abused is not a valid argument against the powers themselves. To invalidate them some clause of the Constitution must be pointed out with which they conflict; and this the learned counsel for the plaintiff in error has failed to do.

The second question is, was the evidence adduced competent to go to the jury to éhow that the case provided for by the act had arisen and that the governor had exercised the powers confided to him ? The act declares that “ it shall be lawful for the governor of this Commonwealth, on the petition of one hundred citizens of any county in the mining region of this state, verified by the affidavits of at least twenty such citizens and other satisfactory proofs showing that the local authorities of such county are inadequate and insufficient for the protection of persons, property and life within such county or any township or portion thereof, to appoint a marshal of police and a sufficient number of officers of police, &c.” The evidence offered and admitted was a certified copy from the office of the secretary of the Commonwealth of a petition of one hundred and sixty citizens of the county of Northumberland, praying the governor to appoint police officers, with an affidavit of twenty of the number of the truth of the facts therein stated. This offer was made in connection with the original commission issued to the plaintiff below as a police officer by the governor. The first part of the offer was objected to because there is no law authorizing the secretary of the Commonwealth to certify exemplified copies of documents like this. But the counsel in making this objection must certainly have overlooked the Act of March 31st 1823, 8 Smith’s L. 144, Pamph. L. 233, “ An act making copies of certain documents, records and papers evidence in courts of justice.” It enacts “ that copies of all records, documents and papers, in the offices of the secretary of the Commonwealth, secretary of the land office, surveyor-general, auditor-general and state treasurer, when duly certified by the officers of the said offices respectively, shall be received in evidence in the several courts of this Commonwealth in all cases where the original records, documents and papers would be admitted in evidence.” The objection made to the admission of the plaintiff’s commission was because there was no authority in law for issuing such a commission. But the Constitution, Art. VI. Sect. V., declared that “ all commissions shall be in the name and by the authority of the Commonwealth of Pennsylvania, and be sealed with the state seal and signed by the governor.” The governor is unquestionably authorized to issue commissions to all officers whose election or appointment is provided by law and his commission under the great seal is the formal and proper evidence of the election or appointment.

The third question is whether the governor had a right to extend the jurisdiction of Marshal Heisler, who had been previously appointed marshal of police of Schuylkill county, so as to include Northumberland county ? But what had that to do with the claim of Clark B. Zimmerman, duly commissioned to be an officer of police in and for the townships of Mount Carmel and Coal, or his compensation as such officer in the county of Northumberland ? The invalidity of Mr. Heisler’s appointment did not affect the plaintiff. If the question had arisen on the legality of an arrest or other act done under the authority of Marshal Heisler, such a question might arise, but certainly not so as to destroy or injure Zimmerman’s claim to be paid for lawful services, as far as appeared under the law.

The fourth question is whether there was competent evidence that the governor had fixed the plaintiff’s compensation, as by the act he was empowered to do ? Upon this point it is enough to say, that a copy of the letter of the governor duly certified from the office of the secretary of the Commonwealth addressed to Marshal Heisler, dated May 1st 1867, informs; him that the police appointed under him were to receive compensation at the rate of seventy-five dollars per month. This was an official letter, and under the Act of 1823 the certified copy was clearly evidence. In the letter of May 21st 1868 from the governor to Marshal Heisler, informing him of the appointment of the plaintiff and others as special policemen for the townships of Coal and Mount Carmel, Northumberland county, it is said “ These officers will act under the same rules as now govern those appointed by me for Schuylkill county.” In addition to this, according to the testimony of Marshal Heisler, the governor gave to him or forwarded with the commission of the plaintiff and others, a letter now lost or mislaid, in which it was stated that the police officers in Northumberland county were to receive the same pay and be under the same regulations as those in Schuylkill county. The parol evidence of declarations by the governor was rejected by the learned judge, and when he spoke in his charge of the declarations of the governor accompanying the delivery of the commission he must in all fairness be taken to have referred to the lost letter, and not to evidence offered but which he had himself ruled out.

The determination of these questions against the plaintiff in error dispose, we think, of all the assignments.

Judgment affirmed.