This is an action in mandamus in which the two plaintiffs are two of the three members of the Board of Commissioners of Bucks County and defendant is the duly elected controller of this county. In this action, plaintiffs seek an order of court directing the controller to issue a warrant authorizing the payment of salary to Earl B. Dougherty at the rate of $13,608 per annum as the duly appointed purchasing agent. A complaint and answer have been filed and the parties have stipulated the matter to be at issue. The parties have also stipulated that the cause be tried before the undersigned without a jury and that this constitute a final disposition hereof.
A hearing was held at which time all of the facts before us were submitted by stipulation. At that time it was established that as of April 23, 1972, one James H. Houston was the head of the purchasing department, serving in such capacity at an annual salary of $13,608. On April 24, 1972, the resignation of Houston from the aforesaid position became effective and on May 2, 1972, by a vote of two to one, the Board of Commissioners of Bucks County appointed and hired
Mandamus is an extraordinary writ which lies to compel the performance of a ministerial act or mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant and a want of any other appropriate and adequate remedy: Unger v. Hampton Township, 437 Pa. 399 (1970); Gallagher v. Springfield Township Board of Commissioners, 438 Pa. 280 (1970); Martin et ux. v. Garnet Valley School District, 441 Pa. 502 (1971); and Philadelphia Presbytery Homes, Inc. v. Abington Board of Commissioners, 440 Pa. 299 (1970). The controller can be required by mandamus to sign a warrant for a properly authorized and lawful expenditure of the county, but he cannot be required to do so where the expenditure is unlawful and the county is not liable therefor: Commonwealth ex rel., Appellant, v. Jones, 283 Pa. 582 (1925). Where the employment of a county employe is authorized and his salary approved by the
No one contests the right or standing of the two plaintiffs to bring this action either in their individual capacities as commissioners or as the majority members of the three-man board of commissioners and, therefore, we do not reach that question herein. It has been stipulated that the board of commissioners has the inherent right to appoint a purchasing agent and, therefore, that question is likewise not in contest. Rather it is the position of plaintiffs that the salary board has no authority to thwart the county commissioners in the appointment of a county employe and that, therelore, upon the failure of the salary board to act, it is presumed that the employe may function in the job to which he is appointed at the salary paid his predecessor. Plaintiffs make the ultimate argument that it is not intended that the salary board have any function where the appointment is merely the filling of a vacancy of a position previously created by the commissioners at a salary authorized by the salary board, but that the salary board’s functions operate only where it is a new position and a new employe being considered. With this contention, we disagree.
The Act of Assembly provides that the salaries and compensation of county officers shall be as now or hereafter fixed by law. The salaries and compensation of all appointed officers and employes who are paid
Plaintiffs had previously contended as well that in some way a two to two vote among the members of the salary board does not constitute a refusal to fix the salary of the commissioners’ appointee. In this respect we would merely call attention to subsection (d) of section 1625, 16 PS §1625, which provides that
We are satisfied from a fair and reasonable reading of the Act of Assembly in question that the salary board has the authority to fix the salary of county employes; and where the salary board has not done so, the salary of the employe may not be paid. It, therefore, follows that where the salary board has failed to fix the salary for an employe, the controller cannot be compelled in an action of mandamus to authorize payment of that salary: Bono v. Krommes, 201 Pa. Superior Ct. 449 (1963) and Thompson v. Fissel, supra. See also Smith v. Commonwealth ex rel. Dillon, 41 Pa. 335 (1861).2 We think it is clear that the Act of Assembly refers to the salaries to be paid to particular and specific employes and not just to the fixing of a salary for a particular position regardless of who may fill it. See Grenell’s Appeal, 4 D. & C. 616 (1924).
We recognize and sympathize with the argument made by plaintiffs to the effect that the construction we place upon the Act of Assembly possibly vests in the salary board the power of paralyzing county government by the simple expediency of refusing to fix any salary for the duly constituted appointees of the county commissioners. We believe that the raison d’etre of the salary board concept is to serve as a reviewing board and, in the vernacular, a watchdog
ORDER
And now, to wit, June 5, 1972, it is hereby ordered, directed and decreed that the complaint in this matter be dismissed and judgment entered for defendant.
1.
It should be noted that this section further provides that in the event that any salary board shall fail to fix the number or compensation of any such officers, deputies, assistants, clerks or other employes as required by this section, the number and compensation shall continue, as fixed by or pursuant to law, on the effective date of this act. Although initially plaintiffs argued that this provision supported their contention that the salary previously paid to the last incumbent would apply to the present appointée if his salary was not approved by the salary board, plaintiffs now abandon that agrument, recognizing that this is intended to apply only to those salaries being paid according to law upon the effective date of the statute itself creating the salary board. We beleive this latter to be the proper construction of this section. See Martz v. Deitrick, 372 Pa. 102 (1952).
2.
Where a salary has not been fixed by the procedures required by law, the paying authority is under no duty to pay those salaries: Glancey et al. v. Casey, 447 Pa. 77 (1972).