*1
Supreme Pennsylvania. Court of
Oсt. 1986. GRANTED, Appeal No. 70 Petition Allowance Appeal Docket 1986. W.D. BETHLEHEM and Jack
CITY COUNCIL OF CITY OF Lawrence, Councilman, Appellants, MARCINCIN, Appellee. Paul M.
Supreme Pennsylvania. Court of
Argued May 1986.
Decided Oct.
Reargument Denied Dec. *3 Cohen, Easton, appellants. E. for Daniel Easton, Poswistilo, appellee. Frank S. FLAHERTY, C.J., LARSEN, NIX,
Before zappala hutchinson, McDermott, PAPADAKOS, JJ.
OPINION NIX, Chief Justice. point dispute this appeal is the compatibility Third City (“the Code”)1 Class Code and Third Class (“the
City Law”) Charter Law (Act 15, 1957, of July 53 P.S. seq. et (Supp.1986)) with of Bethlehem Ordinance (Bethlehem, Pennsylva- nia, (Oct. 18, 1973)). Ordinance 2389 Pursuant to that ordinance, an mayor incumbent can seek only one term of conclude, reelection. We for the follow, reasons that that a reasonable limitation on the mayoral term of office is in harmony scope with the granted authority to third class cities by the Code and the Charter Law. To limit the mayoralty to two terms no way denies the right of reelection to an incumbent mayor, rаther provides, it pro- spectively, a reasonable limit to the number of consecutive terms he can serve as mayor a third class municipality. Therefore, we reverse the Order of the Common Pleas Court.
The facts as determined court are below not disputed. 18, 1973, On October the Council of the City of (“the Council”) Bethlehem passed an ordinance which re quired that Mayor shall hold his office during four “[t]he yeаrs from the first Monday next January ensuing his election. He shall eligible to succeed himself for only one additional City Bethlehem, term.” Ordinance 2389 (Oct. 18, 1973) added). (emphasis Marcincin, Paul M. appel herein, lee was first elected to the office of *4 November of 1977 and took the oath of office in January, 23, 1931, amended, 1. Act of June seq. 53 P.S. § 35101 et provides The relevant that: councilmen, The mayor, elected officers of each shall be a four controller, a Except provided and a treasurer. in section seven hundred respect and two of this act with to the first election of council, members of each of such officers shall serve for a term of years Monday January four election, succeeding from the first of next his Monday January until the year first of in the fourth Any eligible thereafter. such shall be to reelection. officer Id., (footnotes (emphasis omitted). supplied) § 35701 began reelection successful his bid 1978.2 He was to his in 1982. Marcincin was reelected term his second 5, 1985. term on November third consecutive term, suit, appellee brought third his bid for a Preceding Northampton County, Pleas in the of Common Court of Ordinance challenging validity the judgment declaratory March 1984 invalidat a decree on 2389. The court issued restricting ordinance in the ing provision January reelection.3 On may a seek mayor office for which City of Bethlehem instituted City 1986the Council action, seeking declaratory first count the instant quo City count in warranto.4 and the second judgment Marcincin, Paul Bethlehem v. M. the City Council determining after that The court below No. 1986-C-536. request relief re standing declaratory to council had question ordinance in finding earlier that the affirmed its finding, quo In of this count was invalid. view November, seeking the invalidation warranto from office barring of Marcincin mayoral election and implicate herein was Since the issues raised dismissed. was taken to this Court appeal office a direct public to 722(2). pursuant to Pa.C.S. the Code and operates pursuant
The of Bethlehem Law, A Plan et Mayor-Council municipalities class whereby enjoy third seq., (Supp.1986)) organize express authority self-government. Power from of the Charter city governments flows section (Supp.1986). Law. 53 P.S. 41303 years four after 2. We that was first elected note Marcincin passage Ordinance Court dismissed for appeal An was taken to this order below entered on ripeness. lack The order this matter was final November, and the com- prior 1985 election March were challenged Thus facts not third term. those mencement оf part record. of that requested Attorney and the District Attor- 4. General council challenge ney Northampton County quo warranto to to institute attempt term. Both declined a third consecutive Marcincin’s to serve action. take such *5 (Supp.1986)) provides Section form city third class whose voters have chosen some that a by as the government, prescribed scheme of optional of the Charter, governed by by shall that scheme and “... be Law) (the optional common to of this act provisions law, applicable provisions general all ...” plans by and Law, 303(1) municipality of the Charter the Under section function, powers to define the and has the clearly term, fix of their officers and to the tenure and duties positions.6 for those compensation Plan municipality Mayor-Council The instant elected the seq.; set forth under section 401 et A section as provides: the controller shall mayor, the treasurer and regular municipal the at a by city
elected voters election, begin- a term of four years and shall serve for law; law; charters, Governing organic existing laws 41301. and ordinances by qualified any city any Upon adoption voters of act, city plans government optional set forth in this shall by provisions governed by plan adopted thereafter be and provisions optional plans by applicable act common to and all this law, general subject provisions Article VI of to the transitional act, city adopt form of unless and until the should another this provi- government provided by plan adopted law. The and organic optional plans become the sions of this act common to shall by they city aсt. So far as are law of the at the time fixed this limitations, grant powers and the restrictions consistent with the any prescribed, they supersede regulations shall and hereinafter local, charter, acts, parts special existing and or and all acts affecting organization, government powers general, and of such they city or in conflict therein. to the extent that are inconsistent affecting existing parts аnd ordinances All acts or of acts organization, government powers of the not inconsistent or and organic adopted remain in full force in conflict with the law so shall by repealed provided law. until modified or powers 41303. General government pursuant city governed by optional form of Each shall, prescribed provisions subject of and limitations this act act, power to: this have full alter, affairs, еstablish, (1) Organize regulate and to its internal offices, employments define the positions and to and abolish term, functions, tenure and powers and fix their and duties thereof compensation; ... following his January next Monday on the first ning *6 election. with incompatible is not question the ordinance
Clearly alleged conflict provisions. aforementioned of the any 701 of the Code language of section from the stems еligible for reelection.” mayor “shall be that the provides an reelection absolutely precluded a the ordinance Had two provisions between the mayor, the tension incumbent however, Here, patent we do not have a obvious. would be the to reelection right issue is whether The first conflict. oppor- number of requires an unrestricted under section 701 of an mayor. for reelection incumbent tunities Legislature, retaining the argues that Appellee in third class over the Office of Mayor exclusive jurisdiction cities, an supra, under section has determined that right reelection as mayor has an unrestricted incumbent in his favor. long a of the electorate votes majority 701, indeed, right reelec extends the expressly Section lan Nothing statutory offices. municipal tion to however, that term “reeleсtion” con guage, indicates opportunities of successive notes an infinite number municipal election to the same office. Section alia, express guarantee of provides, an merely Code inter right of of reelection. To read that reelection right for reelection is to read requiring opportunities unrestricted would broader than words that section language interpretatiоn require its an would require on face. Such unstated, implicit qualification of an finding 303(1). upon A granted under section limitation to be by many an hold is considered may office executive tends encourages approach in that it a fresh and salutary, an prevent stagnation corruption may and/or follow productivity. its U.S. may overstay administration that CONST, XXII, 1; 351 3.3-400. We amend. Pa.Code § option by implication.7 will not restrict this right municipality have the Unquestionably the citizens of would right to have the unrestricted allow its executive officer merely saying will not here that we number of reelections. We are By frustrating his ability to stand for a third term as Mayor Bethlehem, alleges Marcincin that the right Ordinance limits the of the electors to vote freely public officials. The Pennsylvania Constitution, article section 5 mandates “free and equal” electiоns.8 This Court has defined such elections thusly:
... elections are free equal within the meaning of the they Constitution when are public open quali- to all alike; fied electors when every voter has the right same voter; as any other when each voter under the law has to cast his ballot and have it honestly counted; when the regulation of the right to exercise the franchise does not deny itself, franchise ... and when no сonstitutional right qualified elector is subverted or *7 denied him. 65,
Shankey
Staisey,
69,
436 Pa.
897,
(1969),
257 A.2d
898
denied,
1038,
cert.
684,
396 U.S.
90 S.Ct.
In Shankey, supra, provision where a of the Election (Act 1937, Code XIV, June art. (1963)) amended 25 P.S. required indicia of public suрport before placement ballot, on the this Court held that such qualifying requirements are “reasonable” classifica- Here, tions. placed limitation on an incumbent by Ordinance 2389 requiring that he serve two elected terms is well within the parameters of our definition of reasonableness since Ordinance 2389 neither “denies the 303(1) interpret mandating section unrestricted reelection terms
implication. 8. § 5. Eleсtions. equal; power, Elections shall be free military, and and no civil or any prevent
shall at time interfere to the free exercise of the suffrage. CONST, (1969). PA. art. § 5 any seg- electors nor dilutes vote franchise” constituency. of the ment case, issue, is a third instant whether
The second Plan A of operating Mayor-Council under municipality class promulgate an ordinance authority has Law the Charter can municipal of times a officer stand limiting the number Pennsylvania contends that the Marcincin for reelection. controls the municipality, requirements not the Legislature, Pennsylva- officers and that qualifications Legislature power has conferred on nia Constitution them of limited municipal making offices to attach tenure to however, argues The City, or indefinite duration. authority grant has conferred broad Legislature under sections 303 municipalities third class Charter Law. 303(1), Legislature does supra, section
Under power local affairs. the Council to administer empower officers, municipal includ limit of the Council to incumbent bar, reelection, at as in the case to one term of ing mayors Legisla scope authority granted by is within the well Further, 303(1). section 304 through section ture munici general grant of Supp.1986) provides “[a] local greatest intended to confer the pal power ... with the Constitution self-government consistent Moreover, provides that 304 also State.”9 section “[a]ll *8 optional governed by of to cities an grants municipal enumer- act, specific in the form of plan under this whether § is general grant municipal power in this article of contained The self-government greatest power of to confer the local intended sрecific Any enumer- this consistent with the Constitution of State. any other law municipal powers this act or in contained in ation of description general of any way be to limit shall not construed in article, any specifically enumerat- such power contained in this and supple- municipal powers in be construed as addition ed shall by powers general in this article. mentary conferred to the plan by oрtional grants municipal power governed an of to cities All act, specific or form of enumeration this whether in the under terms, city. liberally favor of the general construed in shall be 15, 1957, 901, July P.L. terms, shall in general liberally ation or be construed favor of city.” grant authority under section 304 comprehensive Carducci, 359, in this Court Herriman v. 475 Pa.
concerned (1977) in was quo where action warranto replace to by aрpointed one another a member brought This municipal authority. “[n]othing Court stated that Law, Optional gave in the Third Class Charter which ability regulate citiés the to their organize third class affairs, to empowers council circumvent city own internal investing statutory by powers this scheme itself with denied Redevelopment it 380 A.2d to the Urban Law.” by (1977). contrast, are satisfied that here the munici- By we to pursuant conceded it pality only authоrity exercised Law. provisions above-mentioned (Act July Section amended, (Supp.1986)) in provides pertinent 53 P.S. 41305 part: office; rights; 41305. Pension or retirement terms of proprietary private powers; or busi-
extraterritorial legislature ness; granted by powers this city adopted The charter of accordance with any authority any not or to diminish give any power act shall in his rights any present city employe or privileges of a pension system. or retirement Terms office treasurer, or elect- controller members council mayor, of a shall holding prior adoption ed to or office charter elected. No prior not terminated time which authority any powers beyond shall exercise or city except by as are an act of city limits such conferred pro- city engage any and no shall Assembly, Genеral as authorized private except or prietary business grant powers Notwithstanding General Assembly. powers con- act, this exercise contained in no shall powers granted enlargement to or limitation or trary Assembly are: of the General city by acts of cities (1) a class or classes ... Applicable to *9 Commonwealth. part in every (2) Applicable cities of the Commonwealth. to all the (3) Applicable amended, 901, 305, 53 P.S. 15, July § (Supp.1986). Herriman, as a limitation supra, section 305 readWe 303. Under section of section authority the broad on powers contrary shall exercise city “... no noted that we applicable are if such acts Assembly of the General acts ” 363-364, at 475 Pa. of the Commonwealth.’ the cities all 41305(3) (emphasis (Supp.1986) A.2d at added). A.2d 51 432 Pa. Bradford, Greenberg
In authority on that the restriction stated (1968) this Court in thоse apply 305 did not because under section extended third exclusively to applied act overridden was cases however, Here, Ordinance cities. and not to all cities class it to all apply does section 701 nor not override 2389 does language the reelection previously, stated As we cities. ensuring interpreted only 701 can section reelection, not a continuum. is within the Council of Ordinance
Promulgation grant under broad scope authority enabling section and the supra, section provided by terms consecutive to two 303(1). limiting By followed a fair has the Council to Ordinance pursuant qualification on the constraint and well-established limitation extends traditional office. Such elective presi- An incumbent States. office in the United highest pursuant is limited to two of the United States dent States Con- to the United amendment twenty-second alia, per- stitution, provides, inter supra, “[n]o more than President the office of the elected to son shall be twice____” in the State largest Philadelphia, Law Rule Charter its with accord Pennsylvania, Home mayor- limited Pa.Code, has also seq.), et 9.9-100 3.3-400, office, supra. to two terms alty *10 12 41402, and 403 of the Supp.1986)10 402
Sections
officers,
manner
forth the
Law,
(setting
supra,
Charter
office)
term of
establishing four-year
electiоn and
of their
of
limitation
legislative
as indicative
by
read Marcincin
are
mayor
municipality
of a third class
ability on the
four-year
an unlimited number of
reelection for
seek
reason, however,
to construe
There is no
office.
an incum-
awarding
of 402 and 403 as
language
statutory
of reelection. Nor is
opportunities
unlimited
bent
Law
those sections of
interpret
reason to
there
of-
municipal
merе recitation of
more than a
anything
as
To read the
fices,
and term of office.
procedure
election
and the Charter Law
sections of the Code
aforementioned
rule of
plain meaning
statutory
ignore
is to
otherwise
should
read
that statutes
be
provides
construction
1
of their words.
Pa.C.S.A.
plain meaning
according
498 Pa.
1903(a)
Stanley,
v.
(Supp.1986); Commonwealth
Mumma,
(1982);
326, 328,
v.
Where an ordinance conflicts
statute,
with a
the will
of the municipality
expressed
through
ordinance will
respected
unless the conflict between the statute and the
ordinance is irreconcilable. United Tavern Owners
Phil
adelphia v. Philadelphia
District,
School
Pa.
(1971);
A.2d 868
Harris-Walsh, Inc. v. Dickson City Bor
ough,
420 Pa.
(1966);
Retail Master
Bakers Assn. W. Pa. v. Allegheny
County,
Pa.
*11
(1960);
We are not here faced with a situation where a majority of the members of a city council attempted have to frustrate the wishes of a majority of the electorate of the city. The ordinance in question was passed prior to Marcin cin’s election to the office of mayor. His administration inwas office for eight years before the applicability this ordinance question. was called into Under the Third Class Code, the electorate has challenge an ordinance if by referendum the ordinance does not reflect .11 the will of the electorate 53 P.S. 36050. Such was nоt § case, however, with reference to Ordinance 2389. 53 36050; P.S. 36051. We cannot now conclude therefore that the public demonstration for support of the incumbent administration interpreted must repudiation as a of Ordi nance 2389. Legislative power governmental The of this unit is vested in the 36002) subject council mayor's power P.S. § of veto. 53 41413(a) however, (Supp.1986). public, express can contrary through view the referendum mechanism. See 53 P.S. 36050; § 36051.
14 has asked invalidate been
Although this Court so for the cannot do afore by appellee, we Ordinance of Ordinance 2389 passage because reasons and mentioned municipal authority exercise of was a valid by the Council Moreover, an ordinance is Charter Law. pursuant question organic without only it violates invalid when v. Company East law of the state. Bilbar Construction Pa. Adjustment, Township Board town (1958); Sadecky, Borough Tarentum A.2d (1974). 163, 166, A.2d Pa.Cmwlth. Northampton County Court the Order Accordingly, complaint II of and count Pleas is reversed of Common proceed- for further The matter is remanded is reinstated. opinion. with this ings consistent LARSEN, J., dissenting opinion. files a LARSEN, Justice, dissenting. opinion cite the this thereof support
I dissent Northamption Coun- Pleas case of the Court Common D. Honorable Richard 1985-C-345, by the authored ty, No. Grifo. *12 Ellis, Individually ELLIS, Jr., E. and Jeanni
Donald L. III, Ellis, Appellants, Minor Donald L. as Guardians Goedecke, M.D., SHERMAN, E. Robert Ste G. John Alfred J. Associates, Post, M.D., venson, M.D., Paul F. Sherman Donald Jones, Daly, M.D., Wengert, M.D. and James E. A. James M.D., Appellees. Pennsylvania.
Supreme Court May Argued 3, 1986. Decided Oct.