42 A.2d 600 | Pa. | 1945
The question is whether the appellee borough's police force, as constituted, came within the provisions of the Police Civil Service Act of 1941.
Section 1 of the Act of June 5, 1941, P. L. 84, 53 PS section 351.1, states: "This act shall not apply to any borough . . . having a police force of less than three members." On January 5, 1942, which was after the effective date of the Act, the police organization of the appellee borough consisted of a chief of police, a lieutenant and a captain, of which appellants were chief and lieutenant. On that date the Borough Council passed an ordinance reducing the force from three to two by abolishing the office of captain. This reduction was made "to curtail the Borough expenditures and introduce money saving measures." There was no evidence of bad faith or fraud. No action was later taken to fill the office or to increase the force. Approximately three months thereafter, on April 7, 1942, the Borough Council summarily dismissed the appellants and elected two *308 others to fill their positions. This action was admittedly proper if the provisions of the Act of 1941, supra, are inapplicable. The court below issued a writ of alternative mandamus to compel the borough to show cause why appellants should not be restored to duty. The court below dismissed the writ; this appeal is from that decree.
Appellants contend that the police force was never reduced from three to two. Their theory is that under Section 20 of the Act of 1941, 53 PS section 351.20, the person holding the office of captain was merely placed in an inactive status by "furloughing". This contention is without merit. It is true that the language of the court below is somewhat confusing. The opinion states that the reduction was made in accordance with the Act of 1941 and also that the office was "abolished". These are two different things. No provision is made in the Act forabolition of an office. The method set out therein to reduce the force for reasons of economy is by "furloughing", with reinstatement in order of seniority if the department is again increased. Appellants have assumed that the employee wasfurloughed. On the contrary, the ordinance clearly stated that the office was abolished and not merely temporarily suspended. As Mr. Justice HORACE STERN said in Carey v. Altoona,
Appellants suggest that a resolution appointing one Phillip Carriott "as driver of the Borough truck at a salary of 50 cents per hour when on duty" and swearing him in "as a special Borough Police Officer" thereby added another member to the police force. This is untenable. Section 27 of the Act of 1941, 53 PS section 351.27, specifically states that the Act covers members of the police force who "devote their normal working hours to police duty . . . and who are paid a stated salary or compensation for such work by the municipality." The only evidence in the record shows that the special officer "serves only about two days a month" and "is paid by the hour".
The conclusion is thus inescapable that on April 7, 1942, the police force of this borough consisted of only two members. Faced with this fact, appellants further argue that once the borough came within the provisions of the Act of 1941, it was thereafter bound by the Act regardless of the number on the police force. Thus, according to appellants' view, if the borough abolished its entire police force or reduced it to one member, it would nevertheless be required to maintain a complete system of police civil service. As Mr. Justice DREW has well-stated in a discussion of the Act in Haverford Twp. *310 v. Siegle,
For these reasons we agree with the court below in its result that the police force of the appellee borough was not within the Act of 1941. The Act no longer applied to the police force as then established. Any other conclusion would impose upon this borough the expense of enforcing the regulations of the Police Civil Service Act in spite of the fact that it abolished one of its offices solely for economic reasons.
Decree affirmed; costs to be paid by appellants. *311