Buttorff v. York City

• Decision Date: 26 June 1920
• Docket Number: 290,289
• Citation: 110 A. 728,268 Pa. 143
• Parties: Buttorff et al. v. York City et al
• Court: Pennsylvania Supreme Court

110 A. 728

268 Pa. 143

Buttorff et al. v. York City et al

Nos. 289, 290

Supreme Court of Pennsylvania

June 26, 1920

Argued May 19, 1920

Appeals, Nos. 289 and 290, Jan. T., 1920, by Clayton R Anstine, Wilbur C. Bressler and Austin M. Grove, members of council of York City, from judgment of C.P. York Co., April T., 1920, Nos. 88 and 89, for plaintiffs, on demurrer to return to petition for mandamus, in cases of John F. Buttorff v. City of York, Clayton R. Anstine et al., members of council, and E. S. Hugentugler, Mayor, and Frank A. Free v City of York, Clayton R. Anstine et al., members of council, and E. S. Hugentugler, Mayor. Affirmed.

Petition for mandamus.

Demurrer to return. Before WANNER, P.J., specially presiding.

The opinion of the Supreme Court states the facts.

The court entered judgment for plaintiffs on the demurrers and awarded the writs. Clayton R. Anstine, Wilbur C. Bressler and Austin M. Grove, councilmen, appealed.

Errors assigned were decree, (1) quoting it, and (2) quoting demurrer and decree.

The judgment in each case is affirmed at the costs of the appellants.

McClean Stock, for appellants.

John L. Rouse, for appellee.

Before BROWN, C.J., MOSCHZISKER, FRAZER, WALLING, SIMPSON and KEPHART, JJ.

OPINION

MR. JUSTICE WALLING:

These two appeals involve the same questions and will be considered together. York is a city of the third class and plaintiffs are members of its police force. On January 16, 1920, the mayor directed plaintiffs to report to him daily for special duty, and on the following day the chief of police directed them to report for an entirely different and inconsistent duty. They obeyed the mayor; and the chief of police, whose orders they necessarily disregarded, at once presented charges against them to the mayor and council for such insubordination and neglect of duty. The council fixed January 27th as the time for a hearing thereon; meanwhile, on January 23d, the mayor heard the complaint against plaintiffs and on the next day found and determined that the said complaint was not well founded and dismissed the same, without submitting a report to council for its action. Thereafter, at the time appointed, the council proceeded to hear the charges, in the absence of plaintiffs who declined to appear, and, by the affirmative vote of three appellants, who were members of council, against the negative vote of the mayor and remaining councilman, adjudged them guilty of insubordination and disobedience to the orders of the chief of police and discharged them immediately. It is agreed that appellants then had no knowledge of the order for special duty previously given plaintiffs by the mayor, or of his hearing and action upon the charges in question. Subsequent to their discharge, plaintiffs instituted these mandamus proceedings, against the mayor and council, to compel their restoration. Writs in alternative form were awarded; to which appellants made return in effect justifying their action; while the return of the mayor and councilman, who had voted against such action, admitted all the allegations of the plaintiff. The latter demurred to the returns of appellants; and, after argument thereof by counsel and upon due consideration, the court below entered judgments for plaintiffs upon the demurrers and awarded peremptory writs; from which these appeals were taken.

The cases depend upon the relevant statutes, applicable to third class cities, the latest being that of May 27, 1919, P.L 310, section 25 of which provides, inter alia (p. 330), "Policemen shall obey the orders of the mayor and make report to him, which report shall be laid by him before council whenever required. The mayor shall exercise a constant supervision and control over their conduct, and hear and determine all complaints against them in the discharge of their duties; and, upon finding any such complaint well founded, shall submit his report thereon to council for its action, and, in the meantime, pending action by council, the mayor shall have power to suspend such policemen from duty." A prior act, passed at the same session, to wit, the Act of May 17, 1919, P.L....