Appeal, No. 222, Jan. T., 1952, from order of Court of Common Pleas of Northumberland County, dated May 7, 1952, May T., 1952, No. 104, in case of John E. Martz, Treasurer, Northumberland County v. George A. Deitrick, John U. Shroyer, George F. Perles and Robert Gibson, Salary Board of Northumberland County. Judgment reversed.
George G. Chandler, with him Daniel F. Martini and Robert T. McCracken, for appellants.
Bernard G. Segal, with him Frederick E. Lark, Gilbert W. Oswald and William A. Schnader, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE JONES
This appeal is from a judgment in mandamus ordering and directing the defendants as members of the salary board of Northumberland County (a county of the fifth class) to take certain specific action with reference to the number of clerks to be employed by the treasurer of the county. The material facts are not in dispute.
The plaintiff, Martz, as county treasurer, and the three defendants, Deitrick, Shroyer and Perles, as county commissioners, took office for the first time on January 7, 1952. The remaining defendant, Gibson, was then, and for fourteen years had been, the county controller. As prescribed by statute, the county commissioners and the county controller constituted the county salary board.*fn1 At the annual meeting of the salary board on January 10, 1952, the county treasurer participated as a constituent member, the number and salaries of his deputies and clerks then being under consideration.*fn2 By a vote of three to two, the board adopted a motion made by one of the commissioners to reduce the treasurer's staff to one deputy and three
clerks. From 1940, the office force of the treasurer of Northumberland County had consisted of a deputy and five clerks. The board did not, at this first meeting, determine the compensation that should attach to the clerical positions, which it thus allotted to the treasurer's office, in the hope that the evident conflict between the board and the treasurer would be resolved amicably. After several intervening meetings of the board without the attainment of that result, the treasurer on February 25th filed his complaint in this mandamus proceeding; and, on February 29th, the board fixed salaries for one deputy and three clerks in the treasurer's office. The treasurer and controller left this meeting before the action just indicated was taken. The court heard testimony on the complaint and, on May 7th, entered the order, now here on appeal, which directed the board to fix salaries for one deputy and five clerks in the treasurer's office. Subsequent to the entry of that order, the salary board met and, under protest, authorized the employment by the treasurer of two extra clerks and the payment of their salaries conditioned upon the entry of indemnification of the county should the board's appeal to this court be sustained and the order of May 7th set aside.
Recognizing that mandamus does not lie to compel the exercise of a public official's discretion in a particular manner (citing Goodman v. Meade, 162 Pa. Superior Ct. 587, 60 A.2d 577), the court below entertained the complaint on the ground that the salary board had acted capriciously and arbitrarily. A careful reading of the record fails to disclose wherein the action of the salary board was either capricious or arbitrary. The board may have been mistaken in its conclusions, but that it acted in good faith cannot justly be denied. It is implicit in the lower court's opinion that, for the purposes of the case, it assumed
that the salary board had authority to fix the number of employees of the office and, accordingly, did not rule on the legal question involved as to whether the salary board had such authority to act at its annual meeting but went ahead and entered the judgment directing the board to take action with respect to fixing the salaries of the larger number of employees of the treasurer's office which the court undertook to fix and determine. The underlying question for decision, therefore, is whether the salary board has a discretion to exercise in respect of the number ...