OFFICIAL OPINION No. 21

OFFICIAL OPINION No. 21 Constables' fees-Pennsylvania Constitution, Article 3, Sectio'Tt 27-Increased cornpensation under Act No. 344. 1. Article 3, Section 27 of the Pennsylvania Constitution prohibits the pay· ment of legislatively enacted increased f P,es to constables who assumed office prior to the effective date of the enactment. 2. A constable is a public officer within the meaning of Article 3, Section 27. 3. A constable, alderman or justice of the peace is entitled to receive the fees fixed by law at the time of his election or appointment, and such fees can neither be increased nor diminished by subsequent legislation during the term of office. 4. Mileage allowances are not "emoluments" within the meaning of Article 3, Section 27 of the Constitution. A constable may receive legislatively increased mileage fees regardless of when he iuisumed office. A. Evans Kephart Court Administrator of Pennsylvania Administrative Office of Pennsylvania Courts Philadelphia, Pennsylvania Dear Mr. Kephart: Harrisburg, Pa. March 14, 1973 You have requested an opinion as to whether the increased compensation for constables provided for by Act 344 of Decem- ber 28, 1972, may be paid to constables who assumed office prior to the effective date of that Act. OPINIONS OF THE ATTORNEY GENERAL 51 Article 3, Section 27 of the Pennsylvania Constitution provides that, "No I.aw: s.hall ~xtend the term of any public officer, or in- crease or d1m1msh his salary or emoluments after his election or appointment." It has uniformly been held that a constable is a public officer within the meaning of this provision. Murphy v. Lackawanna County, 33 D&C 234 (1938); Noel v. Adams Coun- ty, 30 D&C 444 ( 1937); Strunk v. Hershey et al., 30 D&C 396 (1937); Kauffman v. Union County, 31 D&C 212 (1937). In Freiler v. Schuylkill County, 46 Pa. Super. 58 63 ( 1911) the Court said: ' ' "The same question was before this Court in Lyons v. Means, 1 Pa. Superior Ct. 608, in which we held that a justice of the peace, alderman and constable was en- titled to receive the fees fixed by law at the time of his election or appointment, and that such fees can neither be increased nor diminished by subsequent legislation during the term of office." It is my opinion, therefore, and you are so advised, that the Constitution of Pennsylvania prohibits the payment of the in- creased fees for performing the particular services designated by Act 344 to constables who assumed office prior to the effective date of the Act. Act 344, in addition to increasing the fixed flat fees to be paid to constables for performing certain designated services, also in- creases the mileage rate to be collected by constables for their travel incidental to performing their duties. "Generally, statutory compensation to a public officer for expenses necessarily incurred in performing the duties of his office is neither salary nor an emolument of the office and is not within a prohibition against in- creasing or otherwise changing his compensation during his term of office, . .. " 43 Am. Jur. 2d 371, p. 155. See Appeal of Loushay, 169 Pa. Super. 543 ( 1951), aff'd 370 Pa. 453. While there is no Pennsylvania decision which holds that mileage allowances are not "emoluments" within the meaning of Article 3, Section 27 of the Pennsylvania Constitution, the courts of other jurisdictions have consistently held that they are not. " . .. statutory compensation for expenses necessarily incurred in performing the duties of an office is neither salary nor an emolument of the office .. . " Taxpayers' League of Carbon County, Wyo. v. McPherson, et al., 54 P. 2d 897 (Wyo. 1936) . See also State ex rel. Weldon v. Thomason, 221 S.W. 491 (Tenn. 1920); Milwaukee County v. Halsey, 136 N.W. 139 (Wisc. 1912); Schar- renbroich v. Lewis & Clark County, 83 P. 482 (Mont. 1905); Clark v. Board of County Commissioners, 267 N.W. 138 (S.D. 1936). 52 OPINIONS OF THE ATTORNEY GENERAL The legislative recognition of the need for payment of an ~n­ crease in transportation expenses should not be deemed an in- crease in salary or emoluments. It is my opinion, therefore, that all constables, regardless of date of taking office, are entitled to the increased compensation for mileage provided for by Act 344. Sincerely yours, J. ANDREW SMYSER Deputy Attorney General ISRAEL p ACKEL Attorney General