Koontz v. Franklin County , 1874 Pa. LEXIS 173 ( 1874 )

Mr. Justice Gordon

delivered the opinion of the court, May 25th 1874.

We discover no error in the ruling of the court below. The appointment made by the commissioners of Koontz as their clerk, at their first meeting in February 1871, to commence on the 1st day of April then next, to run for one year from that time, was certainly in excess of their authority. The Act of 13th April 1834, sect. 20, after providing for the appointment of a suitable person as clerk, further stipulates that “ he shall receive for his services such sum as the commissioners shall, at their first meeting in each year, agree upon.” As the salary of the clerk is thus to be fixed at the first meeting of the commissioners in each year, we may reasonably conclude that the act contemplated an appointment each year. For if we suppose otherwise, then, firstly, one board of commissioners may appoint a clerk for any given number of years, and thus forestall the action of subsequent boards. The effect of this would be to impose upon such subsequent boards an important confidential servant who might be utterly repugnant to them. This would certainly be contrary to the policy of the law, which intends that the clerk shall be the exponent of the will of the commissioners, and should therefore be one who is not merely skilful in the performance of his duties, but who also enjoys the confidence of his employers. But, secondly, under this construction, we should have a contract definite and fixed as to time, but, beyond one year, indefinite and uncertain as to compensation. For indubitably under the statute the compensation must depend upon the annual action of the board. We are thus led into a legal solecism, whi,ch it is better to avoid by giving the act its natural construction, that is, as the power of the commissioners to contract for compensation is limited to one year, so in like manner is their power of appointment limited to the same period. But treating this appointment as though it were a contract, is putting the matter in too favorable a light for the plaintiff.

As is said in the case of The Commonwealth v. Bacon, 6 S. & R. 322, “ the services rendered by public officers do not, in this particular, partake of the nature of contracts, nor have they the remotest affinity thereto.”

The ruling in this case was that an ordinance of the city councils reducing the salary of the mayor of Philadelphia, after the time of the commencement of .his term of office, was valid. This case, though not precisely similar to that now in hand, nevertheless contains the principle governing it. That we are not mistaken in this, a reference to the later case of Barker v. The City of Pittsburg, will show. Here it was held that where the city councils had appointed a collector of tolls for the aqueduct over the Allegheny river for the term of one year, at a salary of $500, they might dismiss him at the end of six months, though he was in no default, and that, having been paid for the time he served, he could recover nothing more. Furthermore, the ease of Commonwealth v. Bacon is cited as a conclusive precedent, and the doctrine is reiterated that there can be no contract, express or implied, for the permanence of a salary other than such as is specifically provided for by the Constitution.

These cases, without more, demonstrate the correctness of the ruling of the learned judge of the Court of Common Pleas, and the judgment is therefore affirmed.

Mr. Justice Mercur dissented.