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COMMONWEALTH EX REL. MALONE v. CRUMMER (11/09/53)

November 9, 1953

COMMONWEALTH EX REL. MALONE
v.
CRUMMER, APPELLANT



Appeal, No. 215, March T., 1953, from order of Court of Common Pleas of Allegheny County, April T., 1952, No. 1757, in case of Commonwealth of Pennsylvania ex rel. James F. Malone, Jr., District Attorney, to use of Donald J. Payne v. George Crummer et al. and City of Pittsburgh. Order reversed.

COUNSEL

Anne X. Alpern, City Solicitor, with her Louis Rosenberg and J. Frank McKenna, Jr., for appellants.

T. Robert Brennan, with him Jas. H. Brennan and Brennan & Brennan, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.

Author: Stern

[ 375 Pa. Page 224]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

This is an action in quo warrantor brought by the Commonwealth at the relation of the District Attorney of Allegheny County, to the use of Donald J. Payne, to oust from their positions ten named traffic sergeants in the City of Pittsburgh. The city intervened as a party defendant. After defendants had filed an answer to the complaint, together with new matter to which plaintiff replied, the court entered an order granting the latter's motion for judgment on the pleadings. From that order defendants now appeal.

In pursuance of an ordinance of the City of Pittsburgh an organization known as the Traffic Division of the International Association of Chiefs of Police made a study of traffic conditions in Pittsburgh and offered several recommendations whereby greater police efficiency could be secured in dealing with the traffic problem. In order to implement those recommendations the city council enacted a budget ordinance fixing and determining the officers, personnel and employes to be retained in service for municipal purposes and functions for the then ensuing fiscal year of 1952, and also an ordinance fixing and creating the number, character, title and salary of such officers, personnel and employes for that year and including therein ten traffic sergeants at an annual salary each of $4,085; such positions had never theretofore existed in the police department of the city. Thereupon the Civil Service Commission posted an official bulletin announcing that a promotional competitive examination would be held for these new positions and stated therein that applicants must have had service for a

[ 375 Pa. Page 225]

    period of at least four years as regular full-time members of the bureau of police and also two years' experience in the traffic division within the five years preceding the application. The examination was held and the ten highest successful candidates -- these defendants -- were sworn in as traffic sergeants. In the course of the argument before this court counsel stated that there were about 200 members of the police force who would have been qualified to take the examination as far as the requirement of two years' experience in the traffic division was concerned and that a substantial number did in fact take the examination.

The first question raised by plaintiff is whether the City of Pittsburgh had the right to create the new position of traffic sergeant. The court below properly held that the city did have such power. The Act of March 7, 1901, P.L. 20, for the government of cities of the second class, contains a provision (Article II, section 1) that "Councils shall provide by ordinance for such bureaus, clerks, or other subordinate officers, as may be required for the transaction of the business of the departments." Wholly apart from such express authority the city council undoubtedly possessed an inherent power to provide for positions such as those here in question, designed, as they were, to protect the lives and safety of the people. There is no more urgent problem facing our municipalities today than that of traffic control and regulation, and certainly the council could provide for such specialized positions in the bureau of police as were deemed necessary to deal effectively with that problem, nor is there anything in the Act of March 25, 1929, P.L. 67, classifying patrolmen and officers of the police department, which negatives that right; indeed there are many positions now existing in the police department additional to those there classified.

[ 375 Pa. Page 226]

The second question propounded by plaintiff is whether, assuming therefore that the city did have such power, did it legally create these new positions? Plaintiff contends that this could not be done by merely referring to them in a budget ordinance. The court below, however, properly decided that, since the council expressly provided in its ordinance for ten traffic ...


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