Lower Merion Township v. Turkelson

Dissenting Opinion by

Mr. Justice Musmanno:

One of the specious lay criticisms, (sometimes advanced semi-humorously), against the law is that it speaks and employs a language which is often unintelligible to the public. Thus, the average nonprofessional might have difficulty in understanding what a Court means when it says: Benigne faciendae swat interpretationes, propter si/mpUcitatem laicorum, ut res magis valeat quam per eat,• et verba intentioni, non e contra, debent inservire.

Fortunately, in recent years, lawyers and judges have been using less Latin and overly formalistic phrases, and this is commendable and desirable. However, there is still a deplorable tendency on the part of the Courts to “interpret” the English language in a way which not only mystifies the nonlegal population but confuses even lawyers and others trained to understand the medieval abracadabra of the law. This case is in point.

Glenn A. Turkelson, a policeman in Lower Merion Township, Montgomery County, was dismissed as of March 7, 1958 because of alleged violation of the Po*77lice Code of Discipline. He appealed the dismissal to the Court of Common Pleas of Montgomery County which reversed the order of the Civil Service Commission and reinstated Turkelson as of June 1, 1958, “with pay from that date.” The Township appealed to this Court which affirmed the decision of the court of common pleas (396 Pa. 374). In accordance with that affirmance Turkelson reported for work and later made claim for the salary which was not paid to him during the time he was under suspension and his case was in the courts.

The First Class Township Law under which Turkelson was suspended provides that in the event a suspended or removed policeman shall be reinstated, he “shall be reinstated with full pay for the period during which he was suspended.”*

What does “full pay” mean? Does it require an education beyond the third grade to answer that question? No matter how one strains and stretches the English language, no matter on what Procrustean bed the English vocabulary is laid for violent elongation or shortening, “full pay” cannot mean anything less than whole, entire, complete pay. Pour the words through a colander, place them in an alembic, study them under a microscope, reproduce them in capitals, italics or the minutest type, they will always come out the same — full pay.

Lord Macaulay, the great British essayist, said ■that “the first law of writing, that law to which all other laws are subordinate, is this, that the words employed shall be such as convey to the reader the meaning of the writer.” What did the Legislature of Pennsylvania mean when it said “full pay”? Did it mean half pay, one-third pay, part pay, or did it mean full pay? The Majority says that it meant full pay less *78whatever amounts the police officer may have earned while suspended. But if the Legislature meant to convey that meaning, why would it not have said “full pay less whatever amounts the police officer may have earned while suspended”?

The Legislature, busy as it is, and concerned, as it must be, with the multitudinous problems confronting the Commonwealth, is not so parsimonious with its time and so distraught over its responsibilities that it would omit a phrase highly essential to an understanding of its intention, when that phrase was available at the time of the original drafting of the bill, in committee, and when the bill was being considered on the floor of the House or Senate.

When this Court interprets “full pay” to mean part pay, it is doing exactly what the Legislature decided not to do, and, to that extent, it is becoming a third House on Capitol Hill, to amend, change, rewrite, veto or even nullify what the Constitutional two houses, plus the approval of the Governor, have constitutionally enacted.

Even more than that, this Court is telling the Legislature that it does not know the meaning of words. And still more than that, it is amending the dictionary. One can leaf through the dictionaries bearing the reliable imprints of Webster, Oxford, Punk and Wagnalls, New Century, Merriam-Webster, Random House, Simon and Schuster, World, Thorndike-Barnhart, and Winston, and in none of them will one find that the word “full” can under any circumstances mean not full, half, part. In each and every volume dedicated to the definition of words, one will find that full means the cup filled to the brim, the glass with wine reaching the rim, the barrel loaded to the barrel-head, the reservoir with water lapping at the high water mark, the bottle with its liquid pushing at the cork. This Court, thus, in denying Turkelson full pay, *79defies every dictionary instructing the English-speaking people on the use of language.

The Court errs in another wise. It assumes that by assuring the improperly suspended policeman an amount which, added to what he has otherwise earned, will make up what his pay would have been if not suspended, it is acting equitably and fairly. But here it overlooks that the Legislature may well have intended the “full pay” provision as a punitive feature. It is no small matter to charge a police officer with misconduct. Such a charge can ruin a man’s reputation, even though he is later vindicated. In order to warn municipalities that they must proceed with the utmost caution in tarnishing a policeman’s badge, the Legislature has in effect said: “Beware! Don’t bring charges recklessly for, if it is proved they are without merit, you will be compelled to pay the officer his full pay regardless of what he has earned elsewhere.”

The Majority seems to proceed on the theory that it is called upon to consider presumably applicable common law principles and what the Legislature intended to say or should have said. But we are to be guided only by what the Legislature actually did say, namely: “The appointing authority may suspend any such person without pay pending the determination of the charges against him, but in the event the appointing authority fails to uphold the charges, then the person sought to be suspended or removed shall he reinstated with full pay for the period during which he was suspended.”

The Majority says the case at bar is controlled by this Court’s decision in Vega v. Burgettstown Borough, 394 Pa. 406, but if that decision was wrong (which I believe it was), it does not become right by playing it on a different piano. The Majority Opinion says: “The legislature by permitting reinstatement of a police officer with full pay simply protected the *80dismissed employee ‘from possible economic retribution by the discharging authority upon reinstatement.’ ”

But there is absolutely nothing in the legislative enactment about “possible economic retribution.” This is a perfect example of what I mean by this Court establishing headquarters on Capitol Hill.

In the Vega case the dismissed policeman did what any home-loving man should do. He went to work at any job he could find so as to keep bread on the table for his family. This was no reason, however, why the offending municipality should obtain the benefit of his industriousness, honesty, and frugality. I said in my dissenting opinion in the Vega case: “If Vega had sat in his parlor for nineteen months doing nothing but watching television, eating sandwiches, and drinking beer, the Borough would have had to pay him $5,-850, but, because he exerted himself, as a good citizen and a responsible member, of society should, by working, while the Borough was denying him what he was entitled to, he must give up $5,608.56 which he earned by his own sweat and toil. Such a situation does not strike a very melodious chord on the piano of justice which I always try to keep tuned in the living room of my mind and heart.”

The Vega decision, as I see it, has not lost its dissonance by applying it to the facts in this case.

But there is another and equally important reason why the Majority Opinion in the case at hand is fallacious. It not only linguistically defies the Legislature but it proceeds to take further liberties with the vocabulary of the nation by repudiating words which the Majority of this Court has itself used. As already mentioned, the present case was before this Court on a previous occasion. ■ (390 Pa. 374) Section 645, 53 PS §55645 .of The First Class Township Law, under which Turkelson was suspended, provides: “. . . the *81person suspended . . . shall have immediate right of appeal to the court of common pleas of the county and the case shall be determined as the court deems proper ”

The Court of Common Pleas of Montgomery County, after a hearing on the subject of suspension or dismissal, ordered Lower Merion Township to reinstate Turkelson to his position as of June 1, 1958, “with pay from that date.” It is to be kept in mind that the Court of Common Pleas was authorized by the Legislature to consider all the equities in the case and decide the appeal “as the court deems proper.” Acting under that authority and mandate the court of common pleas did what it deemed proper. The Township then appealed to this Court and this Court declared (396 Pa. 374, 378) : “The statute clearly gives the Court of Common Pleas full discretion to affirm, reverse or modify the action of the Civil Service Commission. The lower Court undoubtedly had jurisdiction; the proceedings were regular; and no excess powers were exercised.”

After saying that the court below had full discretion, this Court now proceeds to modify that fullness. It says that the Court below did not have discretion to reinstate Turkelson as of June 1, 1958, “with pay from that date.” What kind of discretion did the court below have if it did not have full discretion? Is there half discretion, partial discretion, fragmentary discretion? If ¡by “full discretion,” this Court means anything less than full, I can see that our State reports are being launched on a wild, tempestuous and uncontrolled lexicographical sea. If this Court can make “full pay” permanently mean incomplete pay, I can see The Borough Code soon awash in a verbal Sargasso Sea.

I repeat that in affirming the action of the lower court (396 Pa. 374) this Court said: “The lower Court *82undoubtedly had jurisdiction; the proceedings were regular; and no excess powers were exercised.”

Now this Court says that the lower court exceeded its powers in ordering the township to award to Turltelson the pay which he lost while on suspension.

Repeatedly this Court, when asked to make some change in the law to bring it closer to changed social and economic conditions has said that if a change is to be made, it must be made by the Legislature. But in the case at bar, this Court repudiates the Legislature, ignores the dictionary-makers, and turns its back on its own words.

Might this not tempt lay critics to say: ((AUegans contraria non est audienrus?”

Mr. Justice Bell joins in this dissenting opinion.

Italics throughout, mine.