Appeals, Nos. 292 and 293, Jan. T., 1958, from orders of Court of Common Pleas of Luzerne County, March T., 1958, Nos. 831 and 832, in case of Robert George et al. v. James Moore et al. Judgment affirmed.
John R. Reap, Jr., with him Reap & Reap, for appellants.
Edward E. Hosey and William S. Livingood, Jr., with them Joseph M. Reardon, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE COHEN.
Prior to 1941 police employed by all boroughs had no civil service or job tenure rights and were subject to peremptory removal by borough council. The Police Civil Service Act*fn1 changed this for boroughs employing three or more policemen. By that act police employed by boroughs were granted job tenure rights which prohibited their dismissal, except for causes stated in the statute and in compliance with the procedures outlined therein. All the provisions of the Act of 1941 have been re-enacted as a part of The Borough Code.*fn2 The re-enactment still applied only to boroughs having police forces of three or more members. In 1951 the legislature passed a Police Tenure Act*fn3 which extended dismissal procedures of the Act of 1941 to police forces of less than three members.
In 1957 the legislature amended The Borough Code*fn4 so that the section pertaining to the "powers of council" read as follows: "The council of the borough shall have power: 1. To create, by motion, ordinance or resolution, and appoint a treasurer, a secretary, a solicitor, an engineer, a street commissioner and such other officers as it deems necessary. All officers and employes appointed by the council, with the exception of those who under the provisions of this or any other act are under civil service or have a definite term of office,..."
Acting under the claimed power given by the Act of 1957, Avoca Borough Council dismissed the chief
of police and a patrolman without following the procedure of the Act of 1951. Thereafter, both officers brought separate actions in mandamus seeking reinstatement. The court en banc sustained the police officer plaintiffs' motion for judgment on the pleading and ordered the defendant borough to reinstate the plaintiffs. From those orders this consolidated appeal was taken.
We must now decide whether the Act of 1951, which provides removal procedures to be followed by boroughs having police forces of less than three members, was repealed since the Act of 1957 exempts from peremptory dismissal only borough officers who were "under civil service or have a definite term of office,..."
Since the Act of 1957 contains no expressed repeal of the Act of 1951, we must determine whether there is a repeal by implication. That question is exclusively one of legislative intent. "Repeals by implication are not favored and will not be implied unless there be an irreconcilable conflict between statutes embracing the same subject matter." Kelly v. Philadelphia, 382 Pa. 459, 471, 115 A.2d 238 (1955). We do not find such an irreconcilable conflict between the two statutes. The Act of 1951 granted job employment security to police officers in boroughs having a police force of less than three members. A reading of the Act of 1951, §§ 2, 3, 4 and 5 clearly demonstrates that the legislature re-enacted almost verbatim the same statutory removal procedure found in the Civil Service Act of 1941, §§ 20, 21. It ...