Dewey v. Luzerne County , 74 Pa. Super. 300 ( 1920 )

Opinion by

Porter, J.,

The appellant was chief deputy sheriff of Luzerne County, appointed prior to June 8, 1915, and continued to serve as such until the first Monday of January, 1916. The salary of the chief deputy sheriff at the time appellant was appointed was $165 per month, and he was paid salary at that rate during his entire period of service. The Act of June 8, 1915, P. L. 915, fixed the salaries of chief deputy sheriffs, in counties of more than two hundred and fifty thousand and less than four hundred thousand, at $2,500 per annum, payable in monthly installments. The appellant contends that he is entitled to be paid salary, during the period of his service subsequent to June 8, 1915, at the rate provided for by the statute, and brings this action to recover the difference between that rate and the rate at which he has been paid. The county authorities declined to pay the advance of salary, upon the ground that the appellant was a public officer who had been appointed and was serving at a fixed salary at the time the statute was enacted and that the appellant could derive no benefit from the increase of salary thereby provided because of article III, section 13, of the State Constitution, which provides that: “No law shall extend the term of any public officer or increase or diminish his salary or emoluments after his election or appointment.” The learned president judge of the court below, in an opinion which will appear in the report of this case, held that the appellant was a public officer, within the meaning of the constitutional provision, and was, therefore, not entitled to recover. The opinion of the learned president judge fully reviews all the authorities hearing upon the question and so satisfactorily demonstrates the correctness of his conclusion that we do not deem an extended discussion of the question necessary.

The Act of May 24, 1887, P. L. 185, provides: “That it shall be lawful for and it is hereby made the duty of the sheriff of each and every county in this commonwealth to appoint, and by deed duly recorded in the office of recording deeds in such county, a chief deputy, whose appointment shall be revocable at pleasure on recording-in said office a written revocation thereon.” The statute then defines the duties of the chief deputy sheriff and enacts that whenever the sheriff shall be temporarily unable by reason of sickness, or any other sufficient cause, to perform his duties in person, such chief deputy, upon an order of the court' of common pleas first made for that purpose, shall have full power and authority, during such incapacity of the sheriff, to take charge of such office, and to execute and make returns of all writs and other processes directed to the sheriff, and to perform all other duties incumbent upon the sheriff, with like effect in law as if such official acts had been done by the sheriff in person. It thus appears that while an order of the court of common pleas is necessary to authorize the chief deputy to take charge of the office of the sheriff and perform all the duties of that officer, the court is without power to designate any other person. The sheriff must appoint a chief deputy, the duty imposed by the statute is absolute, although the sheriff is vested with a discretion in the selection of the officer. This being so, we cannot escape the conclusion that the appellant was a public officer within the meaning of the constitutional provision, as the learned president judge of the court below has well shown.

The appellant brings this action in his own name, but the parties, by agreement upon a case stated in the court below, attempted to have the court decide in this proceeding the rights of a number of deputies in other county offices, asserting that the claims of the other deputies and all their rights were now vested in the plaintiff, to be recovered, if recoverable, in his own name. The legislation relating to the deputy recorder, deputy treasurer, deputy controller, and chief clerk of the county commissioners, is to be found in separate statutes, dealing with said offices, respectively, and having no relation to each other. Those officers have no joint right, nor have they any right in common, some of them may be public officers, within the meaning of the constitutional provision, while other's may not be such officers. The salaries of these officers were not assignable, not so assignable at least, as to permit the assignee to bring an action against the county for the recovery thereof in his own name. The officers, other than the appellant, are not parties to this proceeding, nor would it have been proper for all these officers to join in this action. It is sufficient, for the purposes of this case, to say that this appellant is not entitled to recover, in an action in his own name, the amounts, if any, which may be due to the other deputies and chief clerks in the several offices of the County of Luzerne. We disclaim any intention to decide in this case what the rights of the deputies and chief clerks in the other officers of the county may be, Under the Act of June 8, 1915, and the constitutional provision.

The judgment is affirmed.