Appeal, No. 12, Jan. T., 1960, from order of Court of Common Pleas of Northampton County, Sept. T., 1958, No. 5, in re suspension and discharge of Wilford L. Templeton as Chief of Police of the Borough of Wind Gap. Order affirmed.
Edmund P. Turtzo, for appellant.
James R. Charron, with him James F. Pritchard, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE EAGEN.
The appellant, Wilford L. Templeton, was employed as chief of police of Wind Gap Borough, Northampton County, from May 16, 1953, to May 10, 1958. He was discharged by the vote of the borough council. The Court of Common Pleas of Northampton County dismissed Templeton's appeal from this action. It concluded that, regardless of the merit of the reasons upon which his dismissal was based, the office of policeman and/or chief of police in the borough had never been legally created; that his appointment to the post was, therefore, invalid; and that, as a result, no legal right to continue therein existed. The question of the correctness of this ruling is now before us on appeal.
The historical facts of the case disclose that Templeton was first suspended by verbal order of the burgess of the borough. The latter subsequently filed a "Written Statement of Charges" against the appellant with the borough council, charging neglect of duty, inefficiency, disobedience and misconduct. The borough council passed a resolution adopting the charges made by the burgess. The charges were denied by appellant. A public hearing followed, at the conclusion of which members of the council voted unanimously for dismissal,
in effect upholding the charges instituted by the burgess, but without making any specific findings of fact. Templeton filed his petition for appeal with the lower court. Months passed. Oral argument on the issues at that time raised was then had. At this juncture, and before the court's adjudication had been entered, certain taxpayers of the borough were permitted to intervene in the action, over the objection of the appellant, and in their petition seeking this right the question of the legality of appellant's appointment as chief of police was raised for the first time. At the hearing on the petition to intervene, this question was litigated and it was stipulated by the parties that "there is no ordinance of record in the Borough of Wind Gap establishing a Police Department."
The lower court, as hereinbefore related, sustained the action of dismissal without determining whether or not the charges against the appellant were proven, and based its legal conclusion completely on the finding that Templeton had not been legally appointed in the first instance and, therefore, was not entitled to the protection of the provisions of the police tenure Act of June 15, 1951, P.L. 586, 53 PS §§ 811-815. The propriety of this ruling is well supported by many prior decisions of this Court.
If the appellant upon the date of his dismissal enjoyed a legal right to the office of policeman or to the office of chief of police of the borough involved, he was entitled to the full protection and security of the tenure established by the Act of 1951, supra. Under the provisions of this statute, he could not, if entitled to the office, be removed at the pleasure of the power by which he was appointed. His dismissal or suspension could only be brought about legally by the filing of charges, statutorily specified and enumerated in Section 2 of the Act of 1951, supra. If a public hearing were requested, such would be his legal right and, in order to
impose upon him the severe penalty of suspension or dismissal, proof of the charges to sustain such action would have had to be clear and convincing: Vega Appeal, 383 Pa. 44, 117 A.2d 736 (1955).
However, to establish his legal right to the position involved he had the burden of proving the legality of his appointment thereto. Upon him rested the responsibility of establishing his title de jure to the position he claimed the legal right to hold. Permanency of tenure, given by the Act of 1951, applies only to those whose appointments are made in compliance with law: Manning v. Millbourne Borough Civil Service Commission, 387 Pa. 176, 127 A.2d 599 (1956).
Unfortunately for the appellant, he failed to meet this requirement. As stated before, his counsel stipulated before the court that the official records of the borough fail to show the existence or passage of any ordinance establishing a police department for the Borough of Wind Gap. Proof that his own personal appointment was effected by any borough legislation was also lacking. This is fatal. The creation of a borough police department or force is a legislative function. Such may come into being only through legislative enactment, viz., passage of an ordinance: Miles v. Borough of Houston, 3 Pa. D. & C. 2d 793 (1955); Shady v. Wyoming Borough et al., 78 Pa. D. & C. 584 (1951). The Borough Code of July 10, 1947, P.L. 1621, § 1006, as amended by the Act of July 19, 1951, P.L. 1026, 53 PS § 46006, provides, "The Legislative powers of boroughs... shall be exercised by or be based on an ordinance." Section 1125 of said Code specifically provides for the manner in which a police department may be created and the method by which police officers may be appointed: "Borough Councils may, subject to the civil service provisions of this act, if they be in effect at the time, appoint and remove, or suspend, or reduce the manner of practice or exercise of the right, granted
in rank, one or more suitable persons, citizens of this Commonwealth, as borough policemen...
"The Borough may by ordinance establish a police department, consisting of chief, captain, lieutenant, sergeants, or any other classification desired by the council..." The word "may" in the above section does not mean, as appellant's counsel argues, that policemen may be legally appointed in some other manner. In addition, Section 3501 of the Code states that this statute provides a complete and exclusive system for the operation of the government of boroughs.
The fact that the appellant was employed as chief of police for five years does not, in itself, prove that he enjoyed title de jure to the position any more than it did in the case of Manning, supra, who served in the capacity of patrolman for three years. Mere proof of employment, without more, does not establish the legality of the appointment. "There can be no de facto officer where there is no corresponding office known to the law, or, as it is sometimes expressed, there can be no officer de facto without an office de jure:" McQuillin, Municipal Corporations, Vol. 3, 3rd Ed., § 12.104, pp. 383 and 384.
Since from aught that appears of record the position of chief of police in Wind Gap Borough never legally existed, appellant has no standing to challenge his dismissal. In Detoro v. Pittston et al., 344 Pa. 254, 25 A.2d 299 (1942), this Court said at page 261: "An employment which in its inception violates such an act as this (Civil Service Law) is illegal and against public policy and it is the duty of the administrative officers of the state or its civil subdivisions to discontinue any illegal employment when they note its illegality. The illegality ...