McKinley v. Luzerne Township School District

Dissenting Opinion by

Mb. Justice Musmanno:

I would reverse in this case because the lower Court reduced the tax collector’s rate of compensation after he had been elected to an office which had attached to it a specific compensation fixed by law. It is not fair to alter the nature of a proclaimed reward after it has been legitimately won in the assizes of democratic competition. An instinctive sense of fairness would recoil at the prospect of a gridiron decision which would prohibit the use of forward passes after one of the teams had gained a scoring advantage by the use of that aerial device. But the aversion to a change of rules after the game has begun is not limited to the sports field. It is grounded in fundamental ethics which is intended to be the foundation of .jurisprudence.

The law abhors or should abhor retroactivity. One should- be rated today according to the norms of today and not by the standard of tomorrow when circumstances may have completely altered the dimensions, the atmosphere, and the equipment of the shop or office in which one performs his appointed tasks. The *296 Luzerne Township School Board fixed the tax collector’s compensation at a meeting held on March 7, 1953. In the succeeding campaign for that office, all candidates strove for election on the assurance that the compensation of the office would be 5% on tax collections. Changing the rate of pay after the election is, it seems to me, an act as improper as would be a decision changing the character of the office after election and qualification.

The Amendment of May 16, 1951, P. L. 314, to the Local Tax Collection Law, 72 PS §5511.36a, provides : “When any taxing district or taxing authorities propose to either raise or reduce the compensation or salary for the office of an elected tax collector, such action shall be by ordinance or resolution, finally passed or adopted at least ten days prior to the last day fixed by law for candidates to withdraw their names from nomination previous to the day of the municipal election.”

The purpose of this Act obviously is to permit a prospective candidate to withdraw his candidacy in the event he is not satisfied with the amount of compensation adhering to the office he seeks. Donald Broad-water had every reason to assume, by the operation of law and the immutable tables of the calendar that there would be no change in the rate of compensation after election day, should he be fortunate enough to win in the electoral contest. He thus remained in the race and on November 3, 1953, received the votes which made him the tax collector' of Luzerne Township of Payette County. He took office on' the first Monday of January, 1954. Nine months later the proclaimed edict of the School Board was wiped out; the solemn promise of a constitutional legal body was' treated'as a thing of naught; The fact that this repudiation was done by a court of law does not modify the inequity 'of the abrogation. • ....

*297 The rather extensive discussion in the Majority Opinion of comparison between the pay of county commissioners, and even judges, with that of a tax collector is, I respectfully submit, entirely irrelevant. If a constitutional body decides that the person who gathers the harvest which feeds the government over which it has jurisdiction should receive 5% of what he garners, it is not for another legal body to complain that the reaper is receiving more than the members of the reviewing body.

I do not question that the Court would have had jurisdiction over the subject matter if the litigation had been launched within the period of statutory limitation already mentioned.