Bovaird v. City of Bradford

Opinion by Mr. Justice Stewart, The city of Bradford is a city of the third class. The act of assembly governing cities of this class creates the office of city treasurer, and provides that such officer “shall receive a fixed annual salary to be provided by ordinance:” Act of May 23, 1889, art. 8, sec. 1, P. L. 277, as amended by Act of May 16,1901, sec. 23, P. L. 224. The act makes no provision for the election, appointment, or employment of a clerk to the treasurer; but the city council, by ordinance approved March 19, 1902, directed “That the clerk to the City Treasurer from and after the first Monday in April, 1902, shall receive an annual salary of $720, to be paid in monthly installments in the same manner that the salaries of other city officials are now paid.” At a municipal election in 1905 appellant was elected to the office of city treasurer, for the term of three years beginning the first Monday in April, 1905; he duly [602] qualified and served out Ms term. Immediately preceding his entry into office, the city councils by ordinance approved' March 10, 1905, repealed the ordinance of March 19, 1902, providing a salary for the clerk to the treasurer. Appellant brought this action to recover from the city the sum of $2,349, which he claimed as clerical hire accruing under the ordinance of March 19, 1902, which was in force at the time of his election, basing his claim on the prohibition contained in the Act of May 23, 1889, <P. L. 277, 13 Par. sec. 3, art. 5, which directs that "no ordinance shall be passed increasing or diminisMng the salary or compensation of any officer after his election or appointment;” his contention being that the effect of the repealing ordinance was to diminish the salary or compensation of city treasurer, and that having been passed after his election to the office, if not entirely nugatory, it could become effective only after the completion of his term of office. As this record stands we are not called upon to decide the several questions raised on the argument. A demurrer must have proved fatal to plaintiff’s action. In the statement of claim filed it is averred that on February 27, 1905, plaintiff, by virtue of the provisions of said ordinance, appointed one Clinton J. Boyd as clerk to the city treasurer to serve during his said term of three years from April 1, 1905, and on the same day notified the mayor and city controller of the city of Bradford in writing of such appointment; that on April 3, 1905, the said Clinton J. Boyd entered upon his duties as said clerk to the city treasurer, which position he held and which duties he performed until April 6, 1908, the end of plaintiff’s term of office as said city treasurer, and of said Boyd’s appointment. Under this state of facts what possible right of action was in the plaintiff? The suit was for salary, but the salary was payable to the clerk, and to him alone. The plea of non assumpsit put the plaintiff to his proofs. And here he wholly failed. He did not attempt to prove that any clerk had been appointed by himself or by the city councils. ‘ His effort to [603] prove that Boyd had acted as clerk was too feeble to raise an issue of fact. It was confined to the testimony of a single witness, whose testimony was as follows: “I did understand that there was a man in the City Treasurer’s office, but just what position he occupied relative to the City Treasurer I don’t know — he was performing duties, he and the Treasurer together were performing the duties of the office — his name was C. J. Boyd.” Not a particle of testimony beyond this was offered to show that a clerk had served at any time or for any period. Its insufficiency for the purpose is too obvious to call for discussion. If no clerk was appointed, and none served, no salary accrued. If by reason of failure to appoint heavier duties were cast upon the treasurer which he performed, such fact, under no conditions, would give the treasurer any right to the salary of the clerk. The increased labor would not be in diminution of his own salary. It is universally recognized that a change in the duties of an office during the term of the incumbent does not affect the compensation. See the authorities cited in 29 Cyc. 1424. “It is well it should be distinctly understood,” said Paxson, C. J., in Pierie v. Phila., 139 Pa. 573, “that county officers whose salaries have been fixed by the Act of March 31,1876, P. L. 13 have no right to extra charges for services pertaining to their offices and which have been cast upon them by law.” Verdict was properly directed for the defendant. The judgment is affirmed.