176 A. 74 | Pa. Super. Ct. | 1934
Argued October 24, 1934. On the first Monday of January, 1933, the county controller of Northumberland County appointed W. Irvine Wiest, the plaintiff, as solicitor and on the same day the salary board of said county fixed his salary at $2,400 per annum, payable semi-monthly in installments of $100. The appointment was made by virtue of the Act of May 2, 1929, P.L. 1278, Sec. 135, which provides: "The county controller may designate and appoint one person learned in the law to act as his *578 solicitor. Such solicitor shall advise upon all such legal matters as may be submitted to him and shall conduct any litigation desired by the county controller. He shall hold office at the pleasure of the controller. He shall receive such salary as may be fixed by law or by the salary board." By the Act of May 23, 1933, P.L. 948, the provisions of the last sentence of the Act of 1929 were amended to read as follows: "He shall receive such salary as may be fixed by the salary board, but in counties of the fifth class such salary shall not exceed the sum of nine hundred dollars ($900) per annum." By reason of the Act of May 17, 1929, P.L. 1808, said Act of May 23, 1933, did not take effect until September 1, 1933. Since the middle of June, 1933, the county commissioners have paid the plaintiff as solicitor for the controller at the rate of $900 per annum instead of $2,400. The question before us is, can his salary be reduced or does he come under Article 3, Sec. 13, of the Constitution, which provides: "No law shall extend the term of any public officer, or increase or diminish his salary or emoluments after his election or appointment."
The court below held that he was a public officer and that, notwithstanding the act of assembly his salary continued to $2,400 per annum. We have come to the contrary conclusion. "Whether an officer is a `public officer' within the intendment of the constitutional prohibition depends upon the manner of his selection, the duties imposed, and the powers conferred, upon him": Commonwealth v. Moffitt,
We are not aided in the discussion by any reference to officers elected by the people. We are dealing here with an appointed officer. Whilst the question of appointment or election may not always create the line of cleavage between a public officer and one who is not, nevertheless, the fact that he is chosen by the electorate for a definite tenure gives support to the fact that he is a public officer.
We are all of opinion that the plaintiff was not a public officer. The judgment of the lower court is reversed and the record remanded with directions to enter judgment for the plaintiff for the amount due prior to September 1, 1933 at the rate of $2,400 per annum and from that date to November 30, 1933, at the rate of $900 per annum. *581