Appeal, No. 194, March T., 1952, from judgment of Court of Common Pleas of Westmoreland County, May T., 1952, No. 302, in case of Dan J. Zeloyle v. John Bettor. Judgment affirmed.
Fred B. Trescher and D. J. Snyder, Jr., with them Vincent R. Smith, P. K. Jones and Kunkle & Trescher, for appellant.
Paul K. McCormick, with him H. Reginald Belden and Richard E. McCormick, for appellee.
Before Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE JONES
This is a quo warrantor proceeding to determine the right to the office of chief of police of the City of New
Kensington as between the plaintiff and the defendant. On motion for judgment on the pleadings, the court below, sitting en banc, entered a judgment declaring Bettor, the defendant, to be unlawfully occupying the office and that Zeloyle, the plaintiff, is the "lawful, duly appointed and qualified chief of police of said City." The defendant appealed.
The material facts are not in dispute. On April 18, 1950, the council of New Kensington (a third class city), acting pursuant to authority conferred by The Third Class City Law of June 23, 1931, P.L. 932, Art. XX, Sec. 2002, 53 PS § 12198-2002, chose Bettor, the defendant, from among the members of the city's police force and designated him chief of police. On March 19, 1952, the mayor of the city designated Zeloyle, who also was a member of the city's police force, as chief of police and demoted Bettor to his former rank of patrolman. As authority for his action, the mayor relied on The Third Class City Code of June 28, 1951, P.L. 662, Art. XX, Sec. 2002, 53 PS § 12198-2002. On the same day as the mayor's appointment of Zeloyle, the council, challenging the mayor's power to demote Bettor, issued a statement declaring that "John Bettor shall remain as Chief of Police of the City of New Kensington and all police officers are to accept his orders." Two days later, to wit, March 21st, Zeloyle filed his complaint in quo warrantor in this proceeding.
The court below held that, inasmuch as The Third Class City Code of 1951 expressly conferred on the mayor the power to designate the chief of police from among the members of the police force, it likewise included, as a concomitant of the appointive power, the power to demote an existing chief of police even though he had originally been appointed by council acting under the authority conferred by the Act of 1931. The court further held that the fact that the power to demote,
inhering in the mayor as the appointive power under the Act of 1951, extended to the demotion of a chief of police, not originally designated by him, did not cause the ...