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SMILEY v. HEYBURN (06/28/57)

June 28, 1957

SMILEY
v.
HEYBURN, APPELLANT.



Appeal, No. 40, May T., 1957, from order of Court of Common Pleas of Dauphin County, Commonwealth docket, 1955, No. 121, in case of Darrell W. Smiley v. Weldon B. Heyburn, State Treasurer of the Commonwealth of Pennsylvania, and Charles R. Barber, Auditor General of the Commonwealth of Pennsylvania. Order reversed; reargument refused July 30, 1957.

COUNSEL

Harry J. Rubin, Deputy Attorney General, with him Thomas D. McBride, Attorney General, for appellants.

Sabato, M. Bendiner, with him Mervin J. Hartman and Busser & Bendiner, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold and Jones, JJ.

Author: Musmanno

[ 389 Pa. Page 595]

OPINION BY MR. JUSTICE MUSMANNO

Darrell W. Smiley, former member and Chairman of the Pennsylvania Labor Relations Board, filed an action in equity*fn* against Weldon B. Heyburn, State Treasurer, and Charles R. Barber, Auditor General of Pennsylvania, to compel them to pay to him various sums of money allegedly due because of increases in pay voted by the Legislature after he took office on June 29, 1943, and accumulating up to the date he was removed from office by the Governor on February 5, 1954.*fn** The defendants refused payment, asserting

[ 389 Pa. Page 596]

    that in view of the plaintiff's status as a public officer, he was prohibited from receiving increases in salary by virtue of Article III, section 13 of the Pennsylvania Constitution, which reads: "No law shall extend the term of any public Officer, or increase or diminish his salary or emoluments, after his election or appointment."

The Court of Common Pleas of Dauphin County, sitting as Commonwealth Court, held that the plaintiff was not a "public officer" within the meaning of the constitutional provision cited, explaining that: "Whether or not members of independent administrative bodies such as the Pennsylvania Labor Relations Board are public officers seems to depend upon whether that Board is an agent, arm, deputy or committee of the legislature, because our Supreme Court has decided that the constitutional prohibition in question is not applicable to agents of the legislature."

This statement perhaps covers too much ground. The constitutional provision cited makes no reference to any particular branch of the government. The section is broad enough to cover all three branches: legislative, executive, and judicial. Whether a person in government service is or is not a public officer is not dependent on the branch of the government which employes him but by the character of the service and the character of the office.**fn** It would appear that our decision in Snyder v. Barber, 378 Pa. 377, which held that a member of the Milk Control Commission was not a "public officer" within the meaning of the Constitution provision involved, has been read by plaintiff, defendants, and the lower Court in a sense not intended. That

[ 389 Pa. Page 597]

    ruling was not based on any arbitrary distinction between the branches of government involved or that the Milk Commission was excluded from the purview of the prohibitory constitutional commission merely because it was an agent of the legislature. We said there that the Commission was created and empowered by the legislature to act for it principally in legislative matters. It is true we said: "'The reason underlying Article III, Sec. 13, namely, to eliminate political or partisan pressure upon incumbents of office after they had been elected or appointed, does not apply to members of the Public Utility Commission, because the legislature has a much greater power over the commissioners than the power to change salaries could give it. The legislature has the power to abolish the commission entirely as indeed it did in 1937 when it abolished the Public Service Commission ...'" However, we did not base our decision on that proposition alone. In addition to the fact that the Legislature had the power to abolish the Milk Commission, it is not to be overlooked that the Commission was performing legislative functions in behalf of the Legislature. At page 380 we said: "The functions performed by the Milk Control Commission, from a ...


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