Summary
In Gagliardi v. Ambridge Borough, 401 Pa. 141, 143, 163 A.2d 418, 419 (1960), this Court stated "A municipality is a creature of the state and possesses only such powers of government as are expressly granted to it and as are necessary to carry the same into effect."
Summary of this case from Borough of Scottdale v. National Cable Television Corp.Opinion
March 15, 1960.
June 3, 1960.
Municipalities — Boroughs — Powers — Ordinances — Requiring borough employes to reside in borough — The Borough Code of 1927, P.L. 519.
1. Under The Borough Code of 1927, P.L. 519, a borough has power to provide by ordinance that employes, including members of the borough police force, shall reside in the borough. [142-6]
2. The civil service provisions of The Borough Code prescribing reasons for which policemen may be suspended, reduced in rank or removed from their positions, do not bar the enactment of such an ordinance. [144-6]
3. A municipality is a creature of the state and possesses only such powers of government as are expressly granted to it and as are necessary to carry the same into effect. [143]
Statutes — Construction — Boroughs — Borough policemen — Residential requirements — The Borough Code of 1927, P.L. 519 — Act of July 10, 1947, P.L. 1621 — Statutory Construction Act.
4. In enacting the Act of July 10, 1947, P.L. 1621, § 39, which added § 1179 to The Borough Code of 1927, P.L. 519 (and which provides that no person shall be eligible to apply for examination for borough policeman unless he is more than twenty-one years of age at the time of filing of the application and has been a resident of the borough for at least one year immediately preceding his application unless no resident applicants are available) the Legislature intended that residence is a statutory qualification for appointment to the office of borough policeman and that a borough may require continued residence within the borough as essential to the right to remain in office. [144-5]
5. In ascertaining the intention of the Legislature, it is presumed that it did not intend an unreasonable or absurd result: Statutory Construction Act of 1937, P.L. 1019, § 52. [145]
Argued March 15, 1960. Before JONES, C. J., MUSMANNO, JONES, COHEN, BOK and EAGEN, JJ.
Appeal, No. 67, March T., 1960, from order of Court of Quarter Sessions of Beaver County, Dec. T., 1958, No. 2, in case of Edmund J. Gagliardi v. Borough of Ambridge. Order affirmed.
Proceeding on petition to determine the legality of ordinance.
Adjudication filed finding that ordinance is legal, and order entered, opinion by SOHN, J. Petitioner appealed.
Eugene T. Rumisek, for appellant.
Genevieve W. Settino, Borough Solicitor, for borough, appellee.
This is an appeal from the validity of an ordinance which is placed under fire at the instance of petitioner-appellant because of alleged inconsistencies existing between its purport and certain provisions of The Borough Code of May 4, 1927, P.L. 519, as amended.
Specifically, the ordinance provides as follows: "SECTION 1. That all present employees of the Borough of Ambridge and any and all persons who shall hereinafter be employed by said Borough shall reside in and be citizens of the Borough of Ambridge.
"SECTION 2. (a) That all persons presently employed by the said Borough of Ambridge and not living within its geographic limits shall be given six months to meet the residential requirements as set forth in said ordinance. (b) That after six months has elapsed and the employee has not complied with the requirements of this ordinance, then the Town Council may, in its discretion, either suspend the employee until he complies with said residential requirements or dismiss the employee immediately.
"SECTION 3. That the requirements for Borough employees as set forth in this ordinance are in addition to any and all requirements as set forth by any Act of Assembly of the Commonwealth of Pennsylvania."
Appellant is a member of the police force of the Borough of Ambridge in Beaver County, Pennsylvania. He was legally appointed thereto on January 15, 1948. At that time and for years previously, he was a continuous resident of Ambridge. In 1958, he moved and took up residence in the adjoining township of Harmony, Beaver County. Thereafter, on November 10, 1958, the Borough of Ambridge enacted the above ordinance. On December 10, 1958, petitioner instituted this action in the court below. The appeal was dismissed.
A municipality is a creature of the state and possesses only such powers of government as are expressly granted to it and as are necessary to carry the same into effect. Among the corporate powers granted by the Commonwealth by statute to boroughs is the power "to make and adopt all such ordinances, by-laws, rules and regulations not inconsistent with or restrained by the Constitution and laws of this Commonwealth, as may be expedient or necessary for the proper management, care, and control of the borough and its finances, and the maintenance of peace, good government, safety and welfare of the borough and its trade, commerce and manufactures": Act of May 4, 1927, P.L. 519, art. XII, § 1202, subs. LIV as amended by the Act of July 10, 1947, P.L. 1621, § 40; 53 P. S. § 46254. Among the duties of borough councils is that which is prescribed as follows: "To enact, revise, repeal and amend, such by-laws, rules, regulations, ordinances and resolutions, not inconsistent with the laws of the Commonwealth as it shall deem beneficial to the borough and to provide for the enforcement of the same . . .": Act of May 4, 1927, P.L. 519, art. X, subd. a, § 1006, subs. III; as amended by the Act of July 19, 1951, P.L. 1026, § 1; 53 P. S. § 46006.
Appellant submits that the ordinance involved is inconsistent with the civil service provisions of The Borough Code ( 53 P. S. § 46125, 46165 and 46174), which specifically set forth the reasons for which borough policemen may be suspended, reduced in rank or removed from their positions. He argues that this ordinance provides the penalty of discharge for noncompliance therewith and in effect adds another reason, not specifically given by statute, for which the borough may remove a policeman from his position.
The only statutory requirement specifically stated as to residence of police officers is in the form of a qualification for appointment. The Act of May 4, 1927, P.L. 519, art. XI, subd. j, § 1179 as added by the Act of July 10, 1947, P.L. 1621, § 39; 53 P. S. § 46179, provides that no person shall be eligible to apply for examination unless he is more than twenty-one years of age at the date of filing of the application and has been a resident of the borough for at least one year immediately preceding his application unless no resident applicants are available. We agree that the intent of the Legislature is to be gathered only from the language used. By the same token, in ascertaining the intention of the Legislature, it is presumed that it did not intend an unreasonable or absurd result: Act of May 28, 1937, P.L. 1019, art. IV, § 52; 46 PS 552, subs. (1). It appears to us from the language above-quoted that the Legislature intended that an individual, in order to qualify for an appointment as a policeman, must be a resident of the particular municipality, not only upon the date of the filing of his application but, also, on the date of his appointment. Any other conclusion would be unreasonable. If this is correct, then we believe it follows that the Legislature also intended that continued residence within the borough is, upon the insistence of Council, essential to the right to remain in office. In other words, residence may change after application and examination or even after appointment but, where the residential status is lost, the right to appointment or to hold the office terminates upon the expiration of a reasonable time prescribed in an ordinance for compliance therewith. Why require residence before appointment and not subsequent thereto, when it is especially during the latter period that its existence assumes important significance? Burnson v. Evans, 137 N.J.L. 511, 60 A.2d 891 (1948); Kennedy v. City of Newark, 29 N.J. 178, 148 A.2d 473 (1959).
We are not impressed by the argument that the type of regulation inherent in the ordinance challenged has been preempted by the civil service statutes. The purpose of these laws is to insure the continuance in office of those individuals who are faithful and conscientious in the discharge of their duties and to free these public officers from the fear of political and personal prejudicial reprisal. It was not intended thereby to restrict the municipality from prescribing reasonable and non-discriminatory qualifications for those favored by appointment. Certainly, no one can with justification question the reasonableness of the regulation this ordinance seeks to impose or deny that it is in furtherance of the common good.
The lower court, therefore, correctly ruled that the ordinance is legal and valid.
Order affirmed.