Richie v. Philadelphia

• Decision Date: 12 October 1908
• Docket Number: 235-1907
• Citation: 37 Pa.Super. 190
• Parties: Richie, Appellant, v. Philadelphia
• Court: Pennsylvania Superior Court

37 Pa.Super. 190

Richie, Appellant, v. Philadelphia

No. 235-1907

Superior Court of Pennsylvania

October 12, 1908

Argued March 12, 1908

Appeal by plaintiff, from judgment of C.P. No. 4, Phila. Co.-1907 No. 3,823, for defendant on case stated in suit of James E Richie v. Philadelphia.

Case stated to determine the amount of plaintiff's salary as a real estate assessor of Philadelphia county.

From the case stated it appeared that on December 31, 1903, the board of revision of taxes of Philadelphia county appointed James E. Richie, the plaintiff, as one of the real estate assessors of the county. At that time the salary of real estate assessors was fixed by the act of April 12, 1873, at $ 2,000. On May 31, 1907, an act was passed which increased the salaries of such assessors in Philadelphia from $ 2,000 to $ 3,000 per annum. The case stated was to determine whether the plaintiff was entitled to the increased salary, or whether he was a public officer within the meaning of sec. 13 of art III of the constitution, which forbade any increase of salary of a public officer after his election or appointment.

The court in an opinion by Willson, P. J., entered judgment for defendant on the case stated.

Error assigned was in entering judgment for defendant on the case stated.

Affirmed.

John C. Bell and Chester N. Farr, Jr., with them Charles L. Brown, for appellant. -- The cases in this state draw a distinction between officers which are denominated " legislative" and officers which are denominated " constitutional," and hold that the term " public officers" in the section above referred to only applies to those holding such offices as can properly be termed constitutional offices: Commonwealth v. McCombs, 56 Pa. 436; Com. ex rel. v. Weir, 165 Pa. 284; Lloyd v. Smith, 176 Pa. 213; Com. v. Moir, 199 Pa. 534; Kilgore v. Magee, 85 Pa. 401.

Even should the court hold that the term " public officer" in the constitutional provision now in question applies to legislative as well as constitutional officers, nevertheless, under the decisions in this state, the office of real estate assessor, as constituted in the city of Philadelphia, cannot properly be considered as a public office: Com. v. Black, 201 Pa. 433; Houseman v. Com., 100 Pa. 222; Com. ex rel. McElroy v. Booth, 16 Pa. Dist. 929.

Ernest Lowengrund, assistant city solicitor, with him J. Howard Gendell, city solicitor, for appellee. -- An act changing the emoluments of public officers is held to be inapplicable to those in office, and whenever possible will be so construed as not to affect the then present incumbents: Apple v. Crawford County, 105 Pa. 300; Gulden v. Schuylkill County, 149 Pa. 210; Lloyd v. Smith, 176 Pa. 213; Lyons v. Means, 1 Pa.Super. 608; Fox v. Lebanon County, 4 Pa. C.C. 393; Rupert v. Chester County, 13 Pa. C.C. 342; Cornell v. Beaver County, 42 P.L.J. 262; Brooke v. Com., 86 Pa. 163; Lancaster County v. Fulton, 128 Pa. 48; Houseman v. Com., 100 Pa. 222; Com. v. Mathues, 210 Pa. 372.

The subject has frequently been considered by the lower courts; and whenever, either in the appellate or county courts the question has actually arisen, it has invariably been decided that all public officers, whether constitutional or non-constitutional, were within the scope of this section: Hancox v. Venango County, 20 Pa. C.C. 508; Com. v. Kromer, 4 Pa. C.C. 241; Rupert v. Chester County, 13 Pa. C.C. 342; Koller's Petition, 9 York L. R. 165; Com. v. Benfield, 5 Pa. Dist. 382; Evans v. Lloyd, 12 Pa. Dist. 380; Goodman v. Commissioners, 17 Pa. C.C. 393; Fox v. Lebanon County, 4 Pa. C.C. 393; Peeling v. York County, 113 Pa. 108; In re Harbor Master, 14 Pa. Dist. 719; Baldwin v. Phila., 99 Pa. 164; Com. v. Benfield, 5 Pa. Dist. 382.

Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.

OPINION

HENDERSON, J.

By the Act of May 31, 1907, P. L. 329, the salary of the real estate assessors in counties having a population of 1,000,000 or over was increased from $ 2,000 to $ 3,000. The plaintiff was one of the assessors in the county of Philadelphia at the time the act referred to was approved and claims to be entitled to the increased compensation provided thereby. The defendant objects that the salary of the plaintiff cannot be increased during the continuance of his term because of sec. 13 of art. III. of the 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 question presented is whether an assessor of taxes in the county of Philadelphia is a public officer within the terms of the section quoted. The office of assessor of taxes was provided for by the Act of May 11, 1799, 3 Sm. L. 392, which directed that the citizens of every ward, township and district within the city of Philadelphia and in the several counties of the state should annually elect one citizen resident therein to be assessor for the term of one year, and two other citizens to be assistant assessors for the same time. The subjects of taxation were also designated and the procedure for the assessment of tax prescribed. The Act of April 15, 1834, P. L. 511, directed the assessors and assistant assessors at a meeting or meetings to be held by them to fix a uniform standard of value of the objects made taxable by law. This latter authority was transferred to the county commissioners by the Act of May 15, 1841, P. L. 393. Under the act of February 2, 1854, the qualified voters of each ward in the city of Philadelphia were authorized to elect two assessors who were required to perform in their respective wards all the duties which the laws of the commonwealth then enjoined on assessors and assistant assessors. The Act of March 14, 1865, P. L. 320, provided for the creation of a board of revision of taxes of the county of Philadelphia to be appo nted by the courts of common pleas. This board was authorized to revise and equalize assessments by raising or lowering the taxation, to rectify errors, to make valuations where they had been omitted, to require the attendance of assessors and other citizens before them for examination on oath, to hear all appeals and applications of the taxpayers; the decisions of the board being subject to an appeal to the court of common pleas. An Act approved April 12, 1873, P. L. 715, changed the method of choosing assessors in Philadelphia and provided for their appointment by the Board of revision of taxes, power being given to that body to fill vacancies and to remove any assessor for incompetency, neglect of duty or refusal to faithfully perform the duties required by law. By subsequent statutes this board was given authority to divide the city into assessment districts and to alter the same. The statute prescribing the duties of the assessors requires them to make an annual list of taxable persons and property in their respective districts with a just valuation of the same, marking such property as in their opinion is urban, rural or suburban, to furnish an alphabetical list of taxable persons with their occupations and residences and to make return of the value of new bui dings not included in their original assessments. They are also required under the Act of June 1, 1889, P. L. 420, to furnish copies of blank forms to all taxable persons and corporations for returns to be made under oath of personal property subject to state taxation, and to make return for any persons who refuse to furnish such statement under oath. The appellant's main proposition is that the term " public officer" only applies to offices existing by requirement of the constitution as distinguished from those created by the legislature and that as the office of assessor of taxes is not ordained by the constitution the legislature is not restrained from increasing the salaries of such officers. It cannot be disputed that there is a distinction between the situation of one who occupies a constitutional office and that of an officer whose position is created by statute. The former has an exemption from the control of the legislature which does not exist in favor of the latter, and if we were warranted in concluding that a " public officer" in contemplation of the constitution was only one whose existence that instrument provided for, the appellant's position would be clearly correct. But this view is too narrow when we take into consideration the object of this limitation of legislative power and the comprehensive language in which it is expressed. Many important offices exist which are not provided for by the constitution, and the number is increasing from year to year. The duties of these officials are various and of some of them highly...