Appeal, No. 167, Jan. T., 1959, from judgment of Court of Common Pleas of Montgomery County, Nov. T., 1958, No. 92, in case of Merritt W. Bosler, Burgess of the Borough of Norristown v. Oscar T. Rahn, Treasurer of the Borough of Norristown. Judgment affirmed.
Paul P. Wisler, with him Anthony j. Giangiulio, for appellant.
James R. Caiola, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. JUSTICE MUSMANNO
The Burgess and the Council of the Borough of Norristown are at sixes and sevens over controlling the hours of duty of the police force in the town. The Burgess contends that since he is charged with responsibility for maintaining law and order, his command in this respect may not be challenged. The Council, on the other hand, maintains that since it appoints the policemen and bears the responsibility of providing for their compensation, it has exclusive authority to decide the hours of their employment. There is some merit in both positions, and it would appear that the Borough Code is not as explicit as could be desired in marking the line of demarcation between the understandably jealous claims of authority on the part of, respectively, the legislative and executive departments of municipal government.
On October 17, 1958, the Burgess of Norristown, by an appropriate order, reduced each policeman's work week from 48 hours to 40 hours. The treasurer of the borough, after receiving an opinion on the subject from the borough solicitor, announced he would
refuse to issue pay checks to the policemen under the new order. He asserted that the order encroached upon the prerogatives of Council which, in fixing salaries, should have exclusive power to say how long the men should work for those salaries.
To settle the controversy, the Burgess and the treasurer brought an amicable action of mandamus upon a case stated in the Court of Common Pleas of Montgomery County, which resulted in the court's ordering the treasurer to issue regular semi-monthly pay checks to the Norristown police force. The treasurer appealed.
Under Section 1125 of The Borough Code, 53 P.S. § 46125, the Borough Council is authorized, inter alia, to establish a police department, appoint policemen, and designate a chief of police. Section 1101, as amended, of the Borough Code, 53 P.S. § 46101, provides: "Appointed officers and employes of the borough shall receive such compensation for their services as the council shall prescribe."
On February 5, 1958, the Council enacted Ordinance No. 1349 which fixed the annual salary of all members of the police force, totaling 52 men. The ordinance made no reference to hours of duty. It is generally accepted that policemen are subject to call 24 hours a day, but, of course, no one expects that these guardians of the peace, as a routine schedule, should be at their posts around the clock. Obviously there must be hours for rest and at stated times there must be vacations. And there must be a coordinated schedule which will assure the borough ...