Consumer Party v. Commonwealth

Concurring and Dissenting Opinion by

Judge Barry,

April 19, 1984:

Except for that portion of 'the majority opinion pertaining to Section 5 of the Act, which gives a one-year $5,000 unvouehered expense allowance increase to all members of the General Assembly, I agree with the opinion and join therein. Unfortunately, such an increase as contained in Section 5 violates Article II, Section 8 of the Pennsylvania Constitution, which provides :

The members of the General Assembly shall receive such salary and mileage for regular and special sessions as shall be fixed by law, and no *622other compensation whatever, whether for service upon committee or otherwise. No member of either House shall during the term for which he may have been elected, receive any increase of salary or mileage, under any law passed during such term.

In Loushay Appeal, 169 Pa. Superior Ct. 543, 548-49, 83 A.2d 408, 411 (1951), the Court stated:

It is also to be observed that the constitutional provision forbidding an increase in the salary or emoluments of a public officer during the term of office is inexorable and may not be avoided by indirection. 43 Am. Jur., Public Officers, §353, P. 145. And as said in Murray v. Philadelphia, 364 Pa. 157, 165, 71 A.2d 280, the substance and practical operation of the statute controls, and not the terminology used.

Since the very real possibility exists that a portion of the $5,000 will not be used to cover actual expenses it must therefore be considered income to the recipient. I am left no choice but to dissent from that portion of the majority opinion which holds that Section 5 of the Act does not violate the Pennsylvania Constitution.