Appeal from order of Court of Quarter Sessions of the Peace of Philadelphia County, May T., 1963, No. 359, in the matter of William Stanley.
Henry N. Fineman, with him Morris Passon, for appellant.
Charles Jay Bogdanoff, Assistant District Attorney, with him Gordon Gelfond, Burton Satzberg, and Thomas M. Reed, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.
Rhodes, P. J., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. Opinion by Flood, J. Dissenting Opinion by Watkins, J. Wright, J., joins in this dissent.
[ 204 Pa. Super. Page 30]
On November 7, 1961, William Stanley, the appellant, who has had a private detective's license since February 1950, was elected constable for the Forty-Fifth Ward of the City of Philadelphia. After duly qualifying as constable, he continued to conduct his business as private detective. The district attorney's petition to the court of quarter sessions for the revocation of his private detective's license was dismissed on June 28, 1962. In 1963 Stanley petitioned for the renewal of this license. This petition was granted but after reargument the court below suspended the license for as long as the appellant continued to hold the position of constable.
Under art. XII, § 2, of the Constitution of Pennsylvania only the legislature, and not the court, can declare what offices are incompatible (Commonwealth ex rel. Fox v. Swing, 409 Pa. 241, 186 A.2d 24 (1962)), and the appellant argues that constable and private detective have not been declared incompatible offices by the legislature. The defect in this argument is that a private detective is engaged in a business and does not hold an "office" within the meaning of the constitutional provision.
This constitutional grant of exclusive power to the legislature deals only with incompatibility between public offices. The title of art. XII is "Public Officers".
[ 204 Pa. Super. Page 31]
The debates on § 2 of this article by the constitutional convention of 1872 (Debates of the Convention to Amend the Constitution of Pennsylvania, vol. VII (1873)) make reference only to incompatibility between public offices. The language of the cases involving this article (Commonwealth ex rel. Schermer v. Franek, 311 Pa. 341, 166 A. 878 (1933) and Commonwealth ex rel. Fox v. Swing, supra) and art. XIV, § 3, as to local officers (Commonwealth ex rel. Adams v. Holleran, 350 Pa. 461, 39 A.2d 612 (1944)), clearly indicate that these provisions are applicable only to public offices.
A public officer is "chosen by the electorate, or appointed, for a definite and certain tenure in the manner provided by law to an office whose duties are of a grave and important character, involving some of the functions of government, and are to be exercised for the benefit of the public for a fixed compensation paid out of the public treasury . . . ." Commonwealth ex rel. Foreman v. Hampson, 393 Pa. 467, 473, 143 A.2d 369, 372 (1958). The business of private detective, even though licensed and regulated by the Commonwealth, is not a public office within this definition.
There is nothing in any of our statutes making a private detective an office-holder. The act now governing the business of private detective is the Act of August 21, 1953, P. L. 1273, 22 PS § 11 et seq. "Private detective business" is defined in § 2(a) of the act (22 PS § 12(a)) to mean "the business of private detective, private detective business, the business of investigator, or the business of watch, guard, or patrol agency." Section 3(a) of the act (22 PS § 13(a)) provides: "No person, partnership, association or corporation shall engage in the business of private detective . . . without having first obtained a license so to do . . ...