Stanley Appeal

Opinion by Flood, J., On November 7, 1961, William Stanley, the appellant, who has had a private detective’s license since February 1950, was elected constable for the Forty-Fifth Ward of the Oity of Philadelphia. After duly qualifying as constable, he continued to conduct his business as private detective. The district attorney’s petition to the court of quarter sessions for the revocation of his private detective’s license was dismissed on June 28, 1962. In 1963 Stanley petitioned for the renewal of this license. This petition was granted but after reargument the court below suspended the license for as long as the appellant continued to hold the position of constable. Under art. XII, §2, of the Constitution of Pennsylvania only the legislature, and not the court, can declare what offices are incompatible (Commonwealth ex rel. Fox v. Swing, 409 Pa. 241, 186 A. 2d 24 (1962)), and the appellant argues that constable and private detective have not been declared incompatible offices by the legislature. The defect in this argument is that a private detective is engaged in a business and does not hold an “office” within the meaning of the constitutional provision. This constitutional grant of exclusive power to the legislature deals only with incompatibility between public offices. The title of art. XII is “Public Offi [31] cers”. The debates on §2 of this article by the constitutional convention of 1872 (Debates of the Convention to Amend the Constitution of Pennsylvania, vol. VII (1873)) make reference only to incompatibility between public offices. The language of the cases involving this article (Commonwealth ex rel. Schermer v. Franek, 311 Pa. 341, 166 A. 878 (1933) and Commonwealth ex rel. Fox v. Swing, supra) and art. XIV, §3, as to local officers (Commonwealth ex rel. Adams v. Holleran, 350 Pa. 461, 39 A. 2d 612 (1944)), clearly indicate that these provisions are applicable only to public offices. A public officer is “chosen by the electorate, or appointed, for a definite and certain tenure in the manner provided by law to an office whose duties are of a grave and important character, involving some of the functions of government, and are to be exercised for the benefit of the public for a fixed compensation paid out of the public treasury . . . .” Commonwealth ex rel. Foreman v. Hampson, 393 Pa. 467, 473, 143 A. 2d 369, 372 (1958). The business of private detective, even though licensed and regulated by the Commonwealth, is not a public office within this definition. There is nothing in any of our statutes making a private detective an office-holder. The act now governing the business of private detective is the Act of August 21, 1953, P. L. 1273, 22 PS §11 et seq. “Private detective business” is defined in §2(a) of the act (22 PS §12(a)) to mean “the business of private detective, private detective business, the business of investigator, or the business of watch, guard, or patrol agency.” Section 3(a) of the act (22 PS §13(a)) provides: “No person, partnership, association or corporation shall engage in the business of private detective . . . without having first obtained a license so to do . . . .” Since a private detective’s license may be obtained by an association or a corporation, a private detective cannot be said to be a holder of a public office. [32] It is to be noted that there is no attack in this case upon appellant’s right to the position of constable. This could normally be challenged only by qno warranto. Mayer v. Hemphill, 411 Pa. 1, 190 A. 2d 444 (1963). What is being attacked is the right of a constable to carry on the business of private detective. Under §6(a) of The Private Detective Act of 1953, supra (22 PS §16(a)), the court of quarter sessions has power to revoke a private detective’s license for cause shown. The court below properly held that, as a matter of public policy, it is incompatible for one vested with the authority of a constable to carry on the business of private detective. The reasons for this conclusion cogently appear in the opinion of the hearing judge and we need not repeat his reasoning in detail. A constable’s authority to execute warrants of arrest, to arrest on sight for breach of the peace, vagrancy and drunkenness, to carry a deadly weapon concealed upon his person and to be present at the polling places in order to keep the peace is not conferred upon private citizens, including private detectives. To give these powei’s, conferred upon a duly elected constable for the benefit of the public, to a person licensed to act for the private persons, creates the distinct possibility of grave abuses. The public policy against allowing one clothed with such extraordinary authority to act as a private detective for private employers seems obvious. Therefore, the action of the court below in suspending his license during the time when he holds this authority is proper. The earlier actioxxs of the court in refusing to revoke his license and granting him a new license give him no vested right to the office and create no estoppel against the court to do in the proceedings below what should have been done earlier. Order affirmed.