Francis v. Neville Tp.

• Decision Date: 06 December 1952
• Docket Number: 7388
• Citation: 92 A.2d 892,372 Pa. 77
• Parties: FRANCIS v. NEVILLE TP. et al.
• Court: Pennsylvania Supreme Court

92 A.2d 892

372 Pa. 77

FRANCIS v. NEVILLE TP. et al.

No. 7388

Supreme Court of Pennsylvania

December 6, 1952

Argued September 29, 1952

Appeal, No. 195, March T., 1952, from order of Court of Common Pleas of Allegheny County, July T., 1952, No. 883, in case of Cledwyn D. Francis v. The Township of Neville, Board of Commissioners of the Township of Neville, John Barna, Jr. Secretary, and Donald S. Ferguson, Treasurer. Order affirmed.

Mandamus.

Defendants' preliminary objections sustained and order entered dismissing complaint, before SOFFEL, MONTGOMERY and THOMPSON, JJ opinion by THOMPSON, J. Plaintiff appealed.

The order sustaining the defendants' preliminary objections and dismissing the plaintiff's complaint is hereby affirmed.

Robert Engel , for appellant.

Emil R. Pecori , for appellees.

Before STEARNE, JONES, BELL, CHIDSEY and MUSMANNO, JJ.

OPINION

MR. MUSMANNO, JUSTICE

On January 2, 1952, the plaintiff in this case, Cledwyn D. Francis, after 28 years of faithful service in varying capacities to the Township of Neville, retired from his then position of township secretary with the assurance given him by a friendly and not unappreciative group of employers, the township commissioners, that he would receive a pension in the sum of $170 per month so long as he should live. This assurance was conveyed through the passage of Ordinance No. 361.

The succeeding board of commissioners, perhaps not as friendly to the plaintiff as its predecessor, enacted on February 8, 1952, another ordinance (No. 388) repealing Ordinance No. 361. When the township treasurer, Donald S. Ferguson, refused, because of Ordinance No. 388, to make out checks to the plaintiff which he claimed under Ordinance No. 361, the plaintiff filed a complaint in mandamus to compel John Barna, Jr., Secretary of the Township, and the above mentioned Ferguson to make out, respectively, the vouchers and checks which would give to the plaintiff his pension.

On preliminary exceptions filed by the defendants, the matter came on for argument before the Court of Common Pleas in Allegheny County which sustained the objections and dismissed the complaint. The plaintiff appealed.

In his brief before this Court, counsel for the defendants asks us to declare unconstitutional the enabling Act, under whose presumed authority Ordinance No. 361 was passed, but before questioning the broad river of constitutional authority from which the General Assembly derives its power, it is important that we study the small stream from which the plaintiff intends to draw the benefits he claims due him.

Section 605 of the Act of May 27, 1949, P.L. 1955, under Section 18, p. 1981, provides: "A township may, by ordinance, provide as compensation to employes, of not less than ten years of satisfactory service who are not less than sixty years of age a proportion of the compensation last paid to them but not in excess of fifty per centum thereof, as fixed in said ordinance or amendment thereto.... The intent and purpose of this section is to permit townships, without levying any special tax or exceeding the existing tax limitation for general revenue purposes, to pay to their employes who are too old to advantageously join any pensioning or retirement system a reasonable annuity in lieu of joining a pension or retirement system, and who are not and cannot now be socially protected by any Federal social security system."

Ordinance 361 offends against this statute because it does not make a provisions for employes , but for one employe . It does not provide for setting up a pension system for a class of public employes, but for the payment of moneys to one individual specifically and particular mentioned in the resolution. This, of course, cannot be done.

Ordinance 361 offends against Section 7 of Article IX of the Constitution which declares: "The General Assembly shall not authorize any county, city, borough, township or incorporated...