dissenting.
The only issue with which we are concerned in this appeal is whether this per diem payment offends the substantive law of the Commonwealth. The applicable statutory provisions cited by the majority are § 636 of the general municipal law (53 P.S. § 636) and § 37008 of the Third Class City Code (53 P.S. § 37008). I can find no basis to conclude that this is unlawful compensation under either provision.
Section 636 provides that compensation to police officers shall not include “any fines, rebate of fine, or fee.” The majority has held that the word “fee” as used in § 636 is “unambiguous” language which encompasses the compénsa*164tion here in issue. This payment of $15.00 per diem, they say, is a “fee” because it is paid at irregular and uncertain periods for a particular service rendered — a policeman’s appearance in court.
I must disagree with this reasoning. The compensation is to be paid for the “day or portion thereof . . . during off-duty hours” which the policeman must give up to spend in court. It is payment for the overtime which is necessitated by the responsibilities of his employment, not for any special services rendered. Payment for the service of an appearance would logically be based upon the number of cases in which the officer testified, not, as here, based squarely upon the number of days off which have been consumed by official duties. That it is paid at irregular and uncertain periods is no justification for calling it a fee. Although overtime payment takes many forms, all overtime payments have one characteristic in common — they are paid at irregular intervals, whenever overtime is actually earned. I must therefore conclude that this is not a “fee” within the prohibitions of § 636, but overtime paid for the time put in on required police functions.
Although in § 37004 of the Third Class City Code there is a limitation upon the number of hours that a city may require any police officer to remain on duty, there is no provision in this section or elsewhere prohibiting the payment of overtime. The only legislative reference to overtime is the provision in § 37004 that when duty beyond the 44 hour limit is required in emergency situations, overtime is to be paid at the same rate as for regular service.
Nor can it be said that this is compensation prohibited by § 37008 of Third Class City Code. This section expressly prohibits any compensation “other than that provided by ordinance . . . ” These payments, made pursuant to a duly enacted ordinance, are clearly lawful under this provision.
The majority opinion is premised on the unwarranted assumption that the payment system involved in this case makes days in court desirable and sought after. I must *165disagree with that assumption. Appearances in court frequently consume a complete day or, at the very least, a major part of a day. Fifteen dollars per day is much less than the normal earnings of a police officer. In many cases, the need to spend off-duty time in court is not an aspect of duty which is as desirable as indicated by the majority.
No policeman has control of whether his arrests are valid, or whether he is needed in court. The district attorney’s office has complete control over this matter, and there is no basis for concluding that police officers generally make unnecessary arrests in the hope that they will earn a meager $15.00 for giving up usually a full day when they are not scheduled to otherwise work. I dissent.