Oblackovich v. McCormick

ABOOD, J., Plaintiff, StephenD. Oblackovich, Clerk of Courts of Cambria County, filed suit, in mandamus, seeking to require defendant, Robert J. McCormick, Jr., the Controller of Cambria County, to pay his salary at the rate of $18,500 per year from October 7,1976, to the end of his term of office instead of at the rate of $15,500. Plaintiff was elected to a four-year term of office in November of 1975 and took the oath of office as Clerk of the Courts of Cambria County on January 5, 1976. His term of office will expire on the first Monday in January of 1980. — 591 — On October 7, 1976, the Pennsylvania Legislature passed an act and the Governor signed same into law whereby the annual salary of the clerk of courts in a fourth-class county (Cambria County is a fourth-class county) was raised from $15,500 to $18,500 per year. The Act of October 7, 1976, P.L. 1101, 16 P.S. § 11011-8, which provided for the increase in salary, in section 2 reads as follows: “This act shall take effect immediately and shall be applicable to each officer when permitted by the Constitution of the Commonwealth of Pennsylvania.” Defendant asserts that article III (legislation), sec. 27, of the Pennsylvania Constitution of 1968 prohibits the increase in salary being paid to plaintiff during his current term of office. Section 27 of article III of this Commonwealth’s Constitution of 1968 reads as follows: “Nolaw shall extend the term of any public officer, or increase or diminish his salary or emoluments, after his election or appointment.” If this provision in the Constitution actually prohibits payment of the increase sought, the following inescapable conclusions must be accepted. A clerk of the courts in a fourth-class county who assumed office in January of 1977 could receive the increase in salary and plaintiff in this case who assumed office in January of 1976 could not. If for any reason plaintiffs office became vacant on or after October 8, 1976, the successor appointed to the office would receive the increase in salary but if plaintiff remains in office he cannot obtain the increase. Furthermore, if plaintiff resigned his office and was reappointed any time after October 8, 1976, he would be entitled to the raise, but presently cannot receive same. — 592 — Article IX (Local Government), sec. 4 of the Constitution, reads as follows : “County officers shall consist of commissioners, controllers or auditors, district attorneys, public defenders, treasurers, sheriffs, registers of wills, recorders of deeds, prothonotaries, clerks of the courts, and such others as may from time to time be provided by law. CÍ “County officers shall be paid only by salary as provided by law for services performed for the county or any other governmental unit.” Does the provision seen in article III, sec. 27, which defendant asserts as the prohibitive provision, apply to salaries established by the legislature for “County Officers”? Article IX, sec. 4, referred to above, states that county officers shall be paid salaries as provided by law. Reading section 4 of article IX in conjunction with section 27 of article III one must ask if the latter section really means that the county officers are to be paid that salary provided by law prior to their election. If that is to be the accepted interpretation then are the county officers pursuant to section 4 of article IX being paid salaries “as provided by law?” Is article III, sec. 27 a restriction on county officers’ salaries or is it, in fact, only a restriction on legislator’s salaries? Only the legislature can set its own salaries and those of the county officers. The county officers have no direct control over their salaries. See: Potter Co. Commissioners’ Salary Case, 350 Pa. 141, 38 A. 2d 75 (1944). There is no case directly on point with regard to the facts in the instant case since the adoption of — 593 — the 1968 Constitution. Article III, sec. 27, of the 1968 Constitution is a holdover provision of the former Constitution and was designated thereunder as article III, sec. 13. Some of the cases decided under the former constitutional provision referred to are briefly outlined as follows. 1. In the case of Loushay Appeal, 169 Pa. Superior Ct. 543, 83 A. 2d 408 (1951), the court concluded that the expenses paid the County Commissioners of Bradford, pursuant to an act of the legislature, in a lump sum amount after they had assumed office was in violation of the Pennsylvania Constitution. The facts were as follows. The commissioners were elected in the general election of 1947 and took office in January of 1948. The legislature, in 1949, passed an act that became effective on July 1, 1949, whereby they granted expenses incurred in connection with the institution district in the sum of $1,000. For the last six months of 1949, the commissioners paid themselves $500 each pursuant to the act. The county auditors disallowed the payment and surcharged the commissioners. The court concluded that the commissioners were public officers within the meaning of the Pennsylvania Constitution and that the payment by way of the act was an increase in salary or an emolument and therefore not permitted. 2. In Hadley’s Case, 336 Pa. 100, 6 A. 2d 874 (1939), the legislature, during the term of Office of the County Treasurer of Philadelphia County, passed an act which required the treasurer to pay all the fees and commissions collected for the issuance of various licenses into the county treasury rather than being kept as compensation by the — 594 — treasurer. The treasurer maintained on appeal, among other things, that the legislation was unconstitutional in that it diminished his salary or compensation. The Supreme Court dismissed the appeal saying that it did not violate the Constitution and went on to say: “The purpose of the framers of the Constitution in placing limitations upon legislative interference with the compensation received by a public officer for the duties normally incident to the office was to eliminate political or partisan pressure upon the incumbents of office after they had been elected or appointed: 8 Deb. Pa. Const. 332, 333.” 3. In Sellers v. Upper Moreland Twp. Sch. Dist., 385 Pa. 278, 122 A. 2d 800 (1956), plaintiff was elected in the May primary of 1953. By the Act of July 13, 1953, P.L. 411, 72P.S. §5511.4, the school districts identified therein by class were to pay the premium on the bond to be posted by the tax collector. The act was to become effective after December 31, 1953. Plaintiff was elected at the November 1953 election and therefore plaintiff was elected before the act became effective. Plaintiff maintained the school district should pay the cost of the bond. The school district refused to pay same. The court concluded the school district was correct. Since the act became effective after his election it would, if the school district paid the premium, result in an increase in compensation after his election. The court concluded that article III, sec. 13, of the Pennsylvania Constitution prohibits such, directly or indirectly. 4. In Apple v. Crawford County, 105 Pa. 300 (1884), the Sheriff of Crawford County took office on January 6, 1879. During the year 1879 he was — 595 — paid 50 cents per day for each prisoner and this payment was made pursuant to the Act of April 8, 1867, P.L. 909. By the Act of June 4, 1879, P.L. 82, the former act was repealed and the county court set the compensation at $2.50 per week. The sheriff sued for the difference asserting this diminished his compensation. The Supreme Court agreed and permitted a recovery. To interpret article III, sec. 27, as the courts have previously interpreted article III, sec. 13, of the former Constitution could lead to bizarre results, particularly in light of the holding in the Sellers and Hadley’s cases, supra. For example, suppose a person ran for the office of clerk of courts in their party’s primary and won nomination. Presume also that the salary of the clerk at that time was $18,500 per year. Suppose also that after the primary election but prior to the general election the legislature passed an act reducing the clerk of courts’ salary to $15,500. If that same person wins the general election and takes office the following January, we must presume the salary would be $15,500 rather than $18,500. Presuming that to be true, if the legislature in that same January again raised the salary to $18,500, the clerk of courts who just assumed office would presumably be out of luck. What did the clerk of courts have to do with the establishing of the salary? The legislature is entirely in control. If the legislature, or majority of same, were so inclined, after the primary elections in each year they could control what the salary of the to-be-elected county officials would be. It is true that legislators who would manipulate salaries in such an arbitrary or capricious way — 596 — might well be removed from office by concerned voters in their ensuing elections. However, if reason dictates that the Constitutional prohibition applies only to the legislators themselves, then their actions relative to raises or decreases as regards their salaries and those of county officers will nevertheless be scrutinized by the voters of this Commonwealth as well it should be. Under the 1968 Constitution, as adopted, article IX, sec. 4, in the last paragraph provides that county officers shall be paid only by salary as provided by law. It does not say as provided by law immediately prior to their election. Reason requires that section 27 of article III be read in conjunction with section 4 of article IX and a conclusion that because the legislators of the Commonwealth of Pennsylvania, through legislation, control salaries of public officers and county officers that the restriction applies only to their legislative salaries and none other. This is so because they must necessarily answer to the voters of the Commonwealth regardless of the increase or decrease in county officers’ salaries. This opinion has not dealt with the legion of reasons which would justify the increase economically because despite being clearly self-evident, they are irrelevant. Plaintiff initially filed suit in mandamus and subsequently a petition for a declaratory judgment was filed in conjunction seeking an interpretation of the Act of October 7, 1976, P.L. 1101, 16 P.S. §11011-8. The matter was submitted to the court en banc for determination on the pleadings after oral argument and briefs being submitted by counsel. — 597 — Pursuant to the pleadings filed and the above opinion the following is hereby entered. ADJUDICATION AND ORDER And now, June 26, 1978, the adjudication of this court is that section 2 of the Act of October 7, 1976, P.L. 1101, does not prohibit the payment of the increased salary to plaintiff and therefore the verdict of this court in the mandamus action is rendered in favor of plaintiff and against defendant, and defendant is hereby directed to pay the increase in salary to plaintiff computed as of the date of the filing of plaintiffs complaint and this order shall become final in the event no post-trial motions are filed within the time required by law and in the event post-trial motions are timely filed, these proceedings shall be stayed until same are determined as well as any appeals thereafter.