Commonwealth v. Peoples

• Decision Date: 23 November 1942
• Docket Number: 231,230,232,234,233
• Citation: 345 Pa. 576,28 A.2d 792
• Parties: Commonwealth v. Peoples et al., Appellants
• Court: Pennsylvania Supreme Court

28 A.2d 792

345 Pa. 576

Commonwealth v. Peoples et al., Appellants

Nos. 230, 231, 232, 233, 234

Supreme Court of Pennsylvania

November 23, 1942

Argued September 28, 1942.

Appeals, Nos. 230-234, Jan. T., 1942, from judgment of Superior Court, Oct. T., 1942, Nos. 48, 51-54, reversing order of Q.S. Delaware Co., June Sessions, 1941, No. 333, in case of Commonwealth v. Clifford H. Peoples et al. Judgment reversed.

Indictment charging defendants with malfeasance, misfeasance nonfeasance, and misdemeanor in office. Before SHULL, P.J. specially presiding.

Verdicts of guilty. Motions in arrest of judgments sustained and judgments entered for defendants. Commonwealth appealed to the Superior Court which reversed the judgments of the court below. Appeals by defendants to Supreme Court allowed.

The judgment of the Superior Court is reversed and the order of the court below sustaining defendants' motions in arrest of judgment and arresting judgment as to each defendant is reinstated.

J. H Ward Hinkson, with him Wm. Chas. Hogg, Jr., Harrold R. Gill and J. Paul MacElree, for appellants.

Guy G. deFuria, First Assistant District Attorney, with him William B. McClenachan, Jr., District Attorney, and William R. Toal, Assistant District Attorney, for appellee.

Before SCHAFFER, C.J.; MAXEY, DREW, LINN, STERN, PATTERSON and PARKER, JJ.

OPINION

MR. JUSTICE DREW:

The question involved is a simple one -- Does the indictment in this case charge a criminal offense where it merely avers that the defendants as city councilmen, unlawfully voted upon a pending measure in which they had a personal or private interest, contrary to the provisions of the Act of June 23, 1931, P.L. 932, Article X, section 1009? -- but the answer is technical and somewhat difficult. The learned trial court held that the indictment did not charge an offense punishable at common law, and the learned Superior Court held that it did. These appeals are by all five defendants, from the judgment of the Superior Court, which reversed an order of the Court of Quarter Sessions of Delaware County, sustaining defendants' motions in arrest of judgment.

Defendants were indicted on June 3, 1941, for malfeasance, misfeasance, non-feasance and misdemeanor in office, in that they had voted and passed a resolution before council fixing the salaries of the members of the Chester Municipal Authority, to which they had previously elected themselves members, contrary to the provisions of The Third Class City Law of June 23, 1931, P.L. 932, Article X, section 1009. ^[1] Defendants' demurrer to the indictment having been overruled and their motion to quash having been denied by the court, on the ground that the indictment properly set forth a common law offense, they were tried and found guilty as indicted, after a charge by the learned trial judge, in which he said that defendants had "no right . . . to fix for themselves, and receive, an additional salary for another office." This was equivalent to binding instructions for conviction. Later, the trial judge changed his mind, and properly so, and sustained defendants' motions for arrest of judgment, upon the ground that "The penalty here being removal from office, it is not, in view of the remedy of quo warranto, as provided by the Act of 1836 [Act of June 14, 1836, P.L. 621] necessary to call into operation the common law to carry into effect Section 1009 of the Third Class Cities Code of 1931, P.L. 932, and, as a consequence, a conviction under this indictment cannot be sustained." The Commonwealth then appealed to the Superior Court, and the majority of that tribunal reversed the order sustaining defendants' motions in arrest of judgment and arresting judgment as to each defendant, and remitted the record with a procedendo, for the reason that "the duty here violated by defendants was not enjoined by the penal provisions of any act of assembly, or a breach of it so penalized; both the offenses and the penalty to be imposed come under the common law." Defendants' petition for allowance of appeal to this Court from the judgment of the Superior Court having been granted, these appeals followed.

The essential facts are not controverted. Defendants as councilmen of a third class city did vote salaries to themselves as members of the Authority. They disclosed their interest. Their action was entirely free of fraud or bad faith, and was considered legal at the time. The City Solicitor drew the salary resolution. It was not until our decision months later (November 24, 1941) in Com. ex rel. McCreary v. Major, 343 Pa. 355, that it was settled that the council of a third class city could not legally appoint its members to places on the board of a municipal authority created by that city.

The law is clear that misfeasance in office means either the breach of a positive statutory duty or the performance by a public official of a discretionary act with an improper or corrupt motive: McNair's Petition, 324 Pa. 48; Commonwealth v. Hubbs (No. 2), 137 Pa.Super. 244. Such offense is not indictable under the common law, however, "where a remedy is provided or duty enjoined, or anything directed to be done by the penal provisions of any act of assembly" unless necessary "for carrying such act into effect": Penal Code, Act of June 24, 1939, P.L. 872, section 1104. This section of the Code is but a re-enactment of section 183 of the Act of March 31, 1860, P.L. 382, which was in force when The Third Class City Law was enacted, with the addition of the terms "penal provisions". That section in turn was taken from section 13 of the Act of March 21, 1806, 4 Sm. L. 326. Since it was for the abuse of a positive statutory duty that defendants in the instant case were indicted, as the indictment itself clearly indicated (i.e. by voting upon and carrying by their vote a measure in which they had clearly disclosed a...