City of York v. Reihart

• Decision Date: 01 December 1977
• Citation: City of York v. Reihart, 379 A.2d 1328, 475 Pa. 151 (Pa. 1977)
• Court: Pennsylvania Supreme Court
• Parties: CITY OF YORK v. Donald L. REIHART, District Attorney of York County, Pennsylvania, and Fraternal Order of Police.

Page 1328

379 A.2d 1328

475 Pa. 151

CITY OF YORK v.Donald L. REIHART, District Attorney of York County,

Pennsylvania, and Fraternal Order of Police.

Supreme Court of Pennsylvania.

Argued May 27, 1977.

Decided Dec. 1, 1977.

Donald L. Reihart, Dist. Atty., pro se.

Harold N. Fitzkee, Jr., York, for appellee, White Rose Lodge.

John W. Thompson, Jr., York, for appellee, City of York.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION

NIX, Justice.

As a result of an employment contract between the City of York and its police officers, consummated pursuant to binding arbitration, it was agreed that the city would pay its police officers the sum of $15.00 for each day or portion thereof spent in court appearances or hearings during their off-duty hours.This sum was to be received in addition to the officers' regular fixed salary and the statutory witness fee available to any citizen who is called upon to appear as a witness in this Commonwealth.¹This term of the bargaining agreement was subsequently implemented by the city with the passage of the following ordinance:

"Each policeman will receive $15.00 for each day or portion thereof spent in appearance at Court or hearings during off-duty time."²

In February, 1974, the District Attorney for York County, the instant appellant, notified city officials that he believed this provision to be illegal and that he intended to take appropriate measures, including the possibility of criminal prosecutions and requests for injunctive relief, in an effort to prevent these expenditures of public monies.

As a consequence of these expressions of intention of the District Attorney, the City of York filed a petition for a declaratory judgment in the Court of Common Pleas to ascertain the legality of the challenged ordinance.The Fraternal Order of Police, White Rose LodgeNo. 15, labor representative of the policemen affected by the agreement, was permitted to intervene.³The lower court concluded that the Third Class City Code, Act of June 23, 1931, P.L. 932, § 2008, as amended, 53 P.S. § 37008(hereinafter referred to as Section 37008) and the general public policy of this Commonwealth as reflected in various municipal statutes disallowed the enforcement of the contractual promise.The Commonwealth Court, Blatt, J. dissenting, reversed the lower court on the ground that the provision was not "per se violative" of Section 37008, nor were the contemplated per diem payments "fees" within the prohibition of the general municipal law since they had a "rational relationship" to compensation for police duty on off-time.This Court thereafter granted allocatur.Because we believe that the city ordinance authorizing such payments is in direct contravention of the express and unambiguous language of the legislature forbidding all municipalities in this Commonwealth from including "fees" in the compensation afforded their police officers, we reverse the order of the Commonwealth Court and reinstate the order of the trial court.

The legislature has provided that the compensation which municipalities and townships provide to their police officers "shall hereafter be such an amount as shall be fixed by law, but under no circumstances shall such compensation be determined by or include any fines, rebate of fines, or fees."1953, Aug. 19, P.L. 1100, N. 296, § 1, 53 P.S. § 636 (Supp.1977-78)(hereinafter referred to as Section 636).Since York is a Third Class Citywe must also consider Section 37008 of the Third Class City Code⁴ in addition to Section 636⁵ of the general municipal law.Section 37008 provides in pertinent part:

No policeman shall ask, demand or receive any compensation or reward whatsoever for his services other than that provided by ordinance, except rewards offered for the arrest of persons accused of crime committed outside of the city in which they hold office, and witness fees and mileage as provided by law for their appearance in any court of record.

The instant appellant relies on Section 636 to challenge the questioned payment, urging us to acknowledge the clear legislative intent to abolish remnants of the fee system from the performance of law enforcement duties.Appellant contends that the compensation at issue actually constitutes a "fee" for every arrest a police officer makes since he then is obliged to appear as a witness on behalf of the Commonwealth.This intertwining of the important exercise of police discretion with the possibility of financial gain, he asserts, must not be tolerated.The appellees, on the other hand argue that the per diem payment is not a "fee" within the proscription of the statute but is basically compensation for the performance of police duties beyond normal working hours.Alternatively, appellees believe that the compensation is authorized by Section 37008 of the Third Class City Code.

Our rules of statutory construction provide that when statutes or parts of statutes relate to the same persons or things or to the same class of persons or things they are in pari materia and should be "construed together, if possible, as one statute."Act of 1970, November 25, P.L. 707, No. 230, added1972, Dec. 6, P.L. 1339, No. 290, § 3, 1 P.S. § 1932 (Supp.1977-78).Since both Section 37008 of the Third Class City CodeandSection 636 of the general municipal law relate to the compensation afforded police officers they are in pari materia and we are obliged to read them together as one statute, if possible.We believe that Section 37008andSection 636 are entirely consistent and noncontradictory and that they reflect identical legislative policy determinations with regard to what kinds of remuneration police officers may receive.⁶Therefore, any arguments which the parties have presented to us must be viewed in terms of the reconcilability of the statutes in question.

Initially, we note that the prohibitions of Section 636and37008 are directed to different parties.Section 636 is addressed to municipalities and prohibits them from expending monies in certain ways on behalf of police officers.Section 37008, on the other hand, relates to what types of police persons' remuneration, other than compensation provided by ordinance, are authorized from sources other than the employer-municipality.Thus we cannot conclude, as the trial did implicitly, that there is a conflict between section 636andsection 37008.Section 636 merely excludes fines, rebates of fines, or fees as determinants in the compensation fixed by law.Section 37008 can be fairly read as incorporating this exclusion as to any police persons' compensation established by ordinances of cities of the third class.Therefore, the two sections taken together require that the police persons' compensation set by such ordinances must not include fines, rebates of fines, or fees.^6A It is unquestioned that the proposed payment in this case is to be paid out of the city treasury of York.Unless the remuneration is compensation fixed by ordinance and not a fine, rebate of a fine or a fee, it is, therefore, forbidden to be paid by the municipality.

Although "fee" has never been defined in this jurisdiction in the context of Section 636⁷, this Court has on a prior occasion distinguished a "fee" from a fixed salary.Generally a fee is "a compensation for service rendered, especially professional service."County Auditors of McKean County, 133 Pa.Super. 475, 479, 3 A.2d 28, 30(1938).See also, Aiken Mills v. United States, 53 F.Supp. 524, 526, (E.D. of S.C.1944).In McNair v. Allegheny County, 328 Pa. 3, 195 A. 118(1937)this Court faced the question of whether the Mayor of Pittsburgh, who by law was to receive a fixed salary in lieu of the fees he formerly received for hearing certain prosecutions, was entitled to receive his salary despite the fact that he had performed no services.The Court explained that the replacement of the "fee system" with a fixed annual compensation was an attempt to prevent further abuse of that system.We held that the Mayor was entitled to this salary, in the absence of a forfeiture or nonfeasance in office, regardless of whether he performed any particular services.

It is said to be in the nature of fees, because it was intended to replace the fees formerly collected by the mayor for these services as part of the county's expense of administering the criminal law of the State.In State ex rel. Murphy v. Barnes, 24 Fla. 29, 3 So. 433, it was said that the distinction between fees and salaries rests upon the distinction between payment for particular services performed, and fixed compensation for continuous services over a period of time.See alsoLandis v. Lincoln County, 31 Or. 424, 50 P. 530.

The purpose of the section under consideration was to substitute for this fluctuating demand a fixed and determinable yearly expense.Jurisdiction was taken from the magistrates and conferred on the mayor.His compensation was stated in terms of an annual salary, with quarterly payments.Obviously, the intent was to do away with the fee system, rather than perpetuate it.Id.328 Pa. at 9-10, 195 A. at 121.

The Arizona Supreme Court has agreed with this basic formula and held that a lawyer's retainer is a fee, payment of which is in derogation of the public policy of Arizona fixing the annual salaries of public officials.We consider next § 17, art. 22.This is an explicit declaration of the public policy of the state of Arizona.By its terms all public officers are to be paid fixed and definite salaries, and under no circumstances may receive fees of any nature.What is the difference between "salaries" and "fees" as referred to in the constitutional provision?We have had the question of the meaning of these two words before us in the case of Cochise County v. Wilcox, 14 Ariz. 234, 127 P. 758.Therein we concluded that, in substance, the difference was as follows: Salaries are fixed compensations based on...