Appeal, No. 115, Oct. T., 1963, from decree of Court of Common Pleas of Schuylkill County, Sept. T., 1962, No. 487, in case of Alex Bono et al. v. Albert Krommes, County Controller of Schuylkill County. Decree reversed.
Joseph S. Lilienthal, for appellant.
Isadore E. Krasno, with him Ralph M. Bashore, for appellees.
Before Rhodes, P.j., Ervin, Wright, Woodside, Montgomery, and Flood, JJ. (watkins, J., absent).
[ 201 Pa. Super. Page 451]
This is an appeal by the County Controller of Schuylkill County from an order of the Court of Common Pleas of that county entered in a mandamus action directing him to approve the payment of $235.13 from the County Liquid Fuels Tax Fund to Alex Bono, the plaintiff. Upon petition of the controller, a supersedeas was granted by this Court. Similar actions by two other men are pending. Under a stipulation these are to be determined by the final order in this case.
Bono and the plaintiffs in the other actions were appointed by a majority of the County Commissioners of Schuylkill County to construct, reconstruct and maintain county bridges, and thereafter they performed the work required of them. When the warrants for the payment of their wages were sent to the controller, he refused to approve them on the ground that the hiring of these men was illegal because there was no prior action of the salary board creating the positions and fixing the salaries as is required by The County Code of August 9, 1955, P.L. 323. Bono and the other men, with the joinder of the county commissioners, then brought this mandamus action against the controller to compel him to approve the warrants for their wages. An effort had been made by two of the county commissioners to have the salary board create these jobs, but when a majority of the board failed to create the jobs and fix the salaries, the two county commissioners appointed the plaintiffs without salary board approval.
Section 1620 of The County Code of August 9, 1955, P.L. 323, 16 P.S. § 1620, provides: "... The salaries and compensation of all appointed officers and employes who are paid from the county treasury shall be fixed by the salary board created by this act for such purposes." Section 1623 of The County Code, 16 P.S. § 1623, also provides that the salary board "shall fix the compensation of all... persons whose compensation is
[ 201 Pa. Super. Page 452]
paid out of the county treasury (except employes of county officers who are paid by fees and not by salary),...".
The plaintiff contends, and the court below held, that he is not to be "paid out of the county treasury," and, therefore, the above provisions of the code do not apply.
It is argued that the appointments were made under authority of the Act of May 21, 1931, P.L. 149, and that The County Code, supra, is not applicable. The above Act of 1931 is "The Liquid Fuels Tax Act," - the act ...