*1 150 ordinances com- derogation
ing are, however, (at mon times) liberties, law rights United guaranteed by Constitution privileges Pennsylvania and there- States Constitution fore construed: strictly Zoning must Lukens v. 387 Pa. 80 A. 2d Kline Board of Adjustment, 765; ” 362 Pa. 68 A. 2d . v. . Harrisburg, 438, 451, on costs appellants. Decree affirmed; Appellant, v. Meade. Clark, *2 Argued January 1954. Before C. 3., Stern, and Ar- Chidsey, Stsaene, Jones, Musmanno Bell, JJ. nold,
reargument refused 1954. April 15, him
Abraham L. Freedman, City Solicitor, with Ernest L. Assistant Abraham Nagy, City Solicitor, Solicitor J. City Jerome Wernick, Deputy Mayor First Shestack, Deputy Solicitor, et al., appellants. Mc- J. Charles E. with him Daniel Kenworthey, Regis- for Board of Cauley, Revision Taxes Jr., tration Commission, appellees.
Herbert him S. E. Grover Joseph Levin,-with Gold, Ladner and for City C. Gilbert Commissioners Stein, appellees. Sheriff, F. Special him
Harry Stambaugh, Counsel, with *3 Harrington Adams, Deputy Attorney General, F. Attorney Frank for Truscott, Common- General, wealth of under No. Pennsylvania, Rule 46.
Robert and Robert B. T. McCracken filed a Wolf for brief amicus curiae. by
Opinion Mr. Justice March 29,1954: Arnold, These appeals two argued were together and will treated in be one the questions opinion, involved being- common to The both. controversy whether §5 Act of 53 1953, §3422, the PS is a valid constitutional In No. enactment. 91 January Term, the court 1954, below the gave judgment plaintiffs against of Philadelphia and the other Mayor in defendants a declaratory judgment proceeding.
In No. 90 January Term, the court 1954, below dis- complaint missed by mandamus brought City et Mayor Philadelphia al. against F. al., William Meade et defendants, constituting the Board of Revision Taxes of Philadelphia.
153 of Phila On the electors April 17, 1951, Jan the Home Rule effective delphia adopted Charter, 6, 1951, On uary City-County 1952.1 November 7, of Penn Consolidation Amendment Constitution sylvania adopted a state-wide elec was voters tion. Amendment2 City-County pro
vided section inter that In “(1) Philadelphia 8, alia, all are county offices hereby abolished, city henceforth all perform county gov shall functions of through ernment within its area officers selected such manner provided by that “(3) law”; All laws to the applicable county Philadelphia shall apply city “(7) Philadelphia”; Upon adoption of all this amendment county officers shall become officers city Philadelphia. . Home Rule section Charter, 7-100, all employes under civil service,
Xhlaced and section 10-107 forbade on the political activity part of city and appointees. officers
Prior Act of PS 1953, §3422, Court, in Lennox v. Clark, Pa. 33 A. 2d decided virtue of the City-County Consolidation Amend with ment, together the civil service provisions of the Philadelphia Home Rule Charter, the former county officers and county employes automatically became sub ject to the Philadelphia Home Rule Charter then in *4 effect and concerning city officers This employes. de cision embraced the Board of of Revision Taxes of Phil the adelphia, Registration Commission of Philadelphia, the County Commissioners and the of Recorder Deeds. of That office Sheriff was included had therein been established decision Carrow v. Philadelphia, 371 Pa. A. 2d 89 496. 255, 1 Adopted 1, XV, under Article of section the Constitution.
2 Constitution, XIV, Article 8. section
ioi passed of 1953, the Act
Thereafter provides seq., §5 of et 53 PS §3422, City of the Commissioners, the members “Sheriff, of the and the Board of Revision of Taxes members Registration to be elected Commission shall continue organised compensated, appointed, shall and and powei’s perform and shall have all all duties continue to power including, authority, limited to, but not and authority employes, to hire and remove as were Assembly provided by acts of and the Constitution immediately adoption preceding of Arti- in effect provi- and the Constitution, cle Section 8 XIY, Philadelphia contained in the now sions hereafter pro- relating to civil service and Home Rule Charter employes political hibiting activities officers inapplicable Philadelphia shall be Board Revision Commissioners, Sheriff, Registration Com- and members Taxes thereof and the subordinates and members thereof, mission employes board and commission such officers, supplied). (Italics question specific case involved this is wheth §5 Act and con of 1953 constitutes valid
er question appellants enactment. On stitutional of section sub-section claim the sanction reading: City-County “Lo Amendment city regulating special the affairs of the cal and laws, creating prescribing offices of officers of the Philadel duties notwithstanding provisions phia, valid shall be of article three of this Constitution.” section seven assembly general and section forbid the That article concerning subjects, pass any local or law (1) including “Regulating the . affairs of . . cities”;3 2. Clause
155 (2) “Creating prescribing and tbe offices, are duties officers . . . cities.”4 These two City-County 2, into written section sub-section 8, language in the Consolidation Amendment, The other of Article section Constitution. III, 7, deliberately prohibitions of are III, 7, Article section 2 that clause confirms the conclusion omitted, which City-County Amendment did not Consolidation. remaining any way, restraints intend alter, Expressio of Article 7. unius est exclusio section III, alterius. v. See Commonwealth 199 Pa. Moir, 534, 537, 49 A. ex rel. Maurer v. Commonwealth 351; Witkin, Pa. 2d 344 25 A. 317. 191,
Among remaining clauses of Article section III, of the Constitution, as we are un which, said, have City-County affected of2, section sub-section following: Consolidation are the “Incor Amendment, porating changing ... cities their charters,”5 any any “Granting special . . . individual or exclu privilege immunity ."6 sive . 5 of the Act Section clearly of 1953 offends both these clauses. §5
That Act of 1953 is a local law obvious, city because relates terms to only. city it could not relate to Indeed, other any, provided if class, the first unless its charter (enumerated §5 all offices these same the Act of special 1953). That Act is also act cannot be clearly grants privileges for it and im- denied, county Of all the offices of munities. only four were selected to be taken City-County out of the Amendment, exempted provisions only from four were these 4 Clause 15. 11. Clause
6 Clause 26.
the Charter itself. Section 5 of that Act elected joins such as the Sheriff and officers, County Commissioners, with appointive as the Board of officers, Revision of Taxes and members of the Registration Commission. In there is no addition, substantial rational, ground for the classification to be attempted made. The of- fices classified in the Act no have characteristics dis- them from other tinguishing offices. The county classi- fication is therefore If arbitrary. civil service merit for system appropriate the selection and re- tention of clerks stenographers city offices, what rational can there for basis a legislative determina- tion that employes performing precisely the same type under pay the same work, classification plan, are to be excluded from the merit system the offices designated? And it impossible to discover rea- any son for the pronouncement that a in the stenographer office the District Attorney may be only dismissed but a cause, stenographer same re- grade, ceiving same in the office compensation, Sheriff or the Board of Revision Taxes be dis- missed arbitrarily.
Again referring City-County section sub-section Amendment, 8, con- exemption local and cerning special laws means that such laws the affairs of regulating are Philadelphia if such do not permitted laws impinge upon the other interdicted clauses of Article section III, of the Con- pertaining to stitution, ... or “incorporating cities their changing charters,” ... in- “granting any any dividual or special exclusive or immu- privilege In ease a nity.” law the af- regulating fairs of the is valid providing not the charter of change does not grant does “to . . . individual any special or exclusive This privilege immunity.” applies also to that clause relative to “creating prescrib- offices, ing and duties of . officers . . cities.” 'the Act of 1953 clearly grants individuals, violation of the a special or Article, privilege exclusive or immunity. As we have said, by terms Philadelphia Home Rule section all the Charter, 7-100, employes placed the City were under civil service and merit rating, under section 10-107 political on activity the part of city officers and appointees was forbidden. Under the Lennox and Carrow cases, the Board of Sheriff, Revision of Taxes, Registra- tion Commission, County Commissioners and the *7 Recorder of Deeds automatically became subject Philadelphia Home Rule Charter of- regulating city ficers and employes. the By terms of of the Act of §5 the civil 1953, service requirements prohibi- the tion against political activity by the City Com- Sheriff, of the missioners, members Board of Revision of Taxes and the Registration of Commission, employes those are offices, declared to he There- inapplicable. fore an in immunity is furnished that the appointees of those are offices exempt from civil service and merit rating from the prohibition against ac- political But in tivity. all other offices of the civil service city, and the prohibition against political activity employes are retained. Cf. v. Wood 46 Pa. Superior Ct. 573; Commonwealth ex rel. Graham v. 333 Schmid, Pa. 3 A. 2d 568, 701; v. Carney Lowe, 336 Pa. 9 A. 2d 289, 418.
In No. 90 January Term, the 1954, dismissal of the in complaint mandamus reversed; there being no facts the court dispute, below is directed to enter judgment favor of the at the appellants, of the cost appellees.
In No. 91 January Term, the 1954, judgment the court below is reversed and is here entered in favor at the cost of the appellants, appellees. by Opinion
Concurring Horace Mr. Justice Chief Chidsey: Mr. Justice Mr. Jones Justice Stern, opinion the court fully in the concur We not it presume were discussion to add to the not would appear misconceptions have that obvious for certain regard involved. to the issue arisen our important that to note it the At outset ques- necessarily one present confined decision is namely, the appeals, by presented instant tion August constitutionality Act of of Section 5 passing, ex- 433). (No. either not We are 26, power general impliedly, upon pressly or regulating affairs to enact laws .City, upon power nor the Council people, approved by a vote of resolution, desired, manner amend Charter provided by Rule Act Home the First Class April P. L. Nor is it within our 665. advisory opinion questions power on to volunteer an presented concerning are not the Charter appeals decision before us. majority suggested
It been that the result of has opinion constitutionally impossible, will be to make people Philadelphia, civil even for the to disestablish *8 permit employees the service or to the of some of politically departments, active. and not others, to be question That since is likewise not here involved. But, injected it has been amiss into the it is not discussion, point holding out that we are neither nor even implying by approved a resolution of Council, people (the procedure amending of vote Charter), passage is the of a law within the contem- plation of Article Section III, 7, the Constitution operative prohibitions against whose are directed passage by legislature of certain laws.
15'9 question concerned case is which this with The being as the passage of the Act whether spe- clearly majority opinion a local demonstrates prohibitions specific Article cial violates two law, changing namely, of the Constitution, Section III, special granting exclusive or the charters of cities, City- argued privileges that the or immunities. It is County en- Amendment authorizes by respecting Philadel- actment of laws any phia in restraint from these without or, fact, specified so in the Constitution. inhibitions fallacy appears upon moment’s of this contention wording reflection on the the Amendment concern- ing special local and All that laws. the Amendment regard did was to lift the restraint on local special legislative respect merely action with twenty-eight subjects two of the inhibited following namely, “Regulating listed Section 7 of Article III, municipal the affairs of cities” and other or counties, political “Creating prescrib- subdivisions and or offices, ing and duties of officers counties, cities” and such other That subdivisions. leaves untouched twenty-six prohibited the Amendment the other sub- jects legislation among changing which are the villages charters of granting cities, towns or any corporation, “to any association or individual privilege immunity exclusive . . As majority opinion recognizes plainly declares, prohibitions both of those are violated the Act of 1953. fallacy apparent
. becomes all the more when it remaining prohibited is realized that subjects special legislation local or embrace such matters as “granting “changing divorces”, the law of descent or “changing succession”, the rules evidence judicial proceeding inquiry before “fixing courts”, *9 property “exempting taxa- from
the rate of interest”, manufacturing”, etc. “regulating trade or labor, tion”, the Consolida- for discussion It seems too obvious Assembly by granting the General to tion Amendment, regulate special power by the to local and laws the prescribe the affairs of the create offices thereby not did of officers thereof, duties separate power upon enact confer the concerning, Philadelphia for and distinct laws changing of example, granting of divorces, fixing proceedings, in court rules of evidence conceded, if it be etc. And, rate interest, Amend- the Consolidation as it must, therefore, legislature’s enactment not authorize the ment does prohibi- of all such violation local laws the Amendment it maintained that how can be tions, permit passage of the violation does of laws prohibitions here involved, constitutional two by exempted equally the terms of the Amend- are not ment? argued power regulate affairs
It is that the necessarily inherently of cities involves change their If charters. that were the inclusion so, against in Section 7 of Article III of the inhibition changing municipalities the charters of would have been unnecessary, regulation municipal- of the affairs of already having ities been inhibited the constitutional provision. many Manifestly, might passed by laws legislature regulating without .affairs cities changing any way provisions of their charters, strikingly very as is demonstrated Act here under consideration. Sections 3 and 4, the con- stitutionality very challenged, of which is not enact important provisions regulating the affairs of the changing any without provisions Charter,..... Rule .... Home. ....
161 special privileges granting im- of As to the majority opinion beyond question, it is as munities, correctly 5 the Act of 1953 effects that Section of holds, proclaim grant. legion a Our cases are support principle that, constitutional law order to grant special privileges withholding and a of such privileges must from there be at least some others, logical semblance of a and reasonable basis differ- groups relatively entiation between individuals or so present privilege In classified. instance, political activity granted, City is not to all denied, employees or to certain defined classes of such em- merely ployees, employees particular but of four City clearly arbitrary an offices, selection since, — majority opinion points out, those offices have nothing in commonwith one another nor character- distinguish istics which them as a class from other part offices all City of which are govern- now political ment. While it is true that activity the ban of was the established rule offices of the former employees whereas the of the offices County were not restrained from engaging political activity, per- differentiation, undoubtedly missible as it was as govern- between government ment of counties and the clearly cities, unjustified became when, reason of the County all Amendment, offices became offices thereby component parts municipal government.
We foregoing believe that sufficiently demon- contrary stra ies that all the contentions to which we have impair referred fail to majority opinion.
162 M. Opinion Mb. Allen
Dissenting Justice Stearne: the acme majority opinion effect a con- unconstitutional to declare viz.: sophistry, legal amendment. stitutional in The opinion Chief Justice
Since Marshall's 4 Wheat. Woodward, v. College Dartmouth Trustees of v. Hummel, Brown Ed. 4 L. (U. S.) 518, 77), Sec. Am. Jur. also (see Pa. 86, 92, absence in the unchallenged remains doctrine legal *11 an agent city a acts prohibition, a constitutional subordinate certain with It invested is of the state. convenience for reasons functions governmental Penn in the prohibition There is no such public policy. charter a Consequently, Constitution. sylvania the pleasure time at any revoked at altered may obviously concedes, majority the Legislature. It of this doctrine. the existence must, it as indeed constitu subsequent unless a apparent that, equally is adopted act provides otherwise, tional amendment such a charter must be a affecting by Legislature the con i. e.: accordance with constitutional act, mandates of Article Section which III, 7, stitutional as set forth in twenty-eight prohibitions enumerates See accurate and informative majority opinion. Raeburn Constitu article Thomas on White, Esq., tional Matters of Home Rule and Changes Municipal in 25 Law 428. Temple Quarterly Government What majority decides is Section 5 of the August Act of P. L. 26, 53 PS 1953, 1476, 3422, unconstitutional because it violates the constitutional prohibition of Article Section 7, against (a) Special III, laws and Local laws. (b)
While not apparently summary controverted, the constitutional provisions and amendments must be considered order to comprehend and effect scope legislative to the objections technical the highly majority. questioned enactment Section XV, Article amendment, The constitutional Philadelphia of the present the foundation 1, 1922, pro- 7, November adopted Home Rule Charter, class, of any particular or cities : . . Cities, vides “. their adopt to frame and power the right be given authority exercise the and to charters own re- to however, subject, local self-government, be im- as may and regulations, limitations, strictions, (Italics supplied) . . .” the Legislature. posed by amendment this constitutional to In pursuance 3421.1 L. 53 PS P. April 21, on Legislature, class” the right “cities et seq. granted first charters and author- their own and amend adopt frame, to appoint upon petition citizens, City Council, ized charter. Commission to frame a new a Commission “Philadelphia Home proposed submitted appointed so who adopted voters of Rule Charter” January 7,1952. on effective April 17,1951, power to observe vitally important It is from is not the Constitution frame a charter derived *12 the the right the Constitution to grants Legis- itself; a city lature to enact the to legislation giving charter, home rule adopt a the summary, then, the the gave Legislature power Constitution to permit rule. cities to have home The Legislature exercised granted and to power permission this first class cities to their own home rale adopt charters. The then only first class viz.: existing city, Philadelphia, did adopt a home rule charter.
After the the adoption by City of Philadelphia of a home rule there charter, still existed dual sovereignty city and offices within county geographical area of Philadelphia. To eliminate the Con- situation, stitutional Article Amendment, Section XIV, 8, was
passed by on November the Commonwealth the voters of commonly the “Con- termed amendment, 1951. This 6, county expressly func- made solidation Amendment”, subject provision Article Section XV, tions empowering (the Constitution section of the rule). Legislature grant 2 of Sec- home Subsection provides: “(2) Local and this amendment tion 8 of city regulating the Phila- affairs laws, powers creating prescribing delphia offices and duties of officers of shall provisions notwithstanding the of section seven valid (Italics supplied) of article three of this Constitution.” subject (the supra, the Act of Section 5 of present litigation) reads as follows: “The Sheriff, City the members Re- Board of Commissioners, Registration vision of Taxes and members of the appointed, Commission shall continue to be elected or organized compensated, per- and shall continue to authority, form all all duties and shall have including, power authority but limited not to, employes, provided by to hire and remove were Assembly Constitution and the acts of im- effect mediately preceding adoption of Article Sec- XIV, provisions tion 8 of the Constitution, now hereafter contained Home Rule relating prohibiting political Charter to civil service and employes activities officers and of Phila- delphia inapplicable shall be Com- Sheriff, Board missioners, Revision of Taxes and members Registration thereof and the Commission and members employes and the subordinates thereof, of such board and officers, commission.” majority decides that since Section 5 of the Act inapplicable made the home only rule charter four county of the former the Act *13 offices, is unconsti- ground special tutional on the legislation is prohibited Article Section of the Constitution. III, 7, subsequent Con- the effect It of however, overlooks, Article Section XIY, 8, stitutional Amendment, and, “(2) special specifically provides: laws, Local city regulating of the affairs of powers creating prescribing and duties of officesor not- of shall be valid officers seyen withstanding provisions article section supplied) (Italics three this Constitution.” Despite of the the distinct sanction the voters enacting entire Commonwealth Constitutional curiously enough Article Section Amendment, XIV, 8, majority expressio principle under the decides, n uniusest exclusio only that since two of the alterius, twenty-eight prohibitions III, constitutional Article Section are enumerated Con- remaining twenty-six stitutional are Amendment, prohibitions. left as It is maintained since one remaining twenty-six prohibitions against special legislation changing a Section 5 of the charter, supra, Act of unconstitutional.
Such a construction indeed leads to remarkable give results. It does not full effect to the will of the voters. notwithstanding The words “shall be valid provisions of section seven of article three of this obviously provisions Constitution” mean all of the subsequent Section 7 inconsistent with the constitu- tional (2), viz.: amendment, Article Section 8 XIY, only and not those majority enumerated. Should the paradoxical be necessarily correct, result would fol- : the low Constitutional Amendment allows legislation regulating city, creating affairs prescribing offices, duties officers city, majority says but the the charter cannot changed by.special legislation since the Constitu- tional Amendment not cha/nging does include a charter.
166 the regulates Rule Charter Home Philadelphia powers prescribes offices, creates the city, affairs of Legislature the When the city. of of officers and duties Constitu- by permitted enacts legislation, city, of the affairs regulating tional Amendment, duties prescribing offices, creating automatically charter is the city officers of city, therefore, majority is, position changed. XIV Article 8 of of Section untenable. Subsection provisions all of the to include must be held logically incon- the Constitution Article III of 7 of Section fol- necessarily It, therefore, sistent loith former. constitutionally may Legislature lows that since the re- constitutional prior enact laws “special” unneces- reasonable classification becomes quirement and not sary. purely political Such consideration Court We have decided that judicial. frequently wisdom of but legislation, is not concerned with the its legality. merely
As to the of local laws: the question Legislature constitutionally local laws adopt governing popula- tion of Philadelphia. This conclusion is buttressed even a casual Constitu- reading tional Amendment. The Constitutional Amendment itself out the singles Philadelphia. City Such amend- ment does not refer to a class. any particular act of Consequently, the Legislature passed accordance with the power the Constitu- conferred tional Amendment may, therefore, specifically refer to Philadelphia. To decide since the that, Act of 1953, supra, out the singles Philadelphia and is not expressed class, terms of a city of a certain it is unconstitutional has the effect of uncon- declaring stitutional a constitutional amendment.
I, therefore, dissent and would affirm both judg- ..... below... ments court .of. Dissenting Opinion bx Mb. Justice Bell: protest protest (1) I I decision. decision constitutionally (2) because it is be- unsound, people cause the Court unfair to tremendously when it fails decide the vital and im- public portant questions which are specifically raised declaratory judgment in the Petition for a in this case. *15 I shall discuss these in their order. inverse
Philadelphia agitated more than it has been ever years. City in the last 50 Is the which was Charter, quarter century preserved fight, won after a of a to be period years, for inviolate of five or can it be amend- by and if to ed, what so, extent, how whom? More particularly, can the “No Politics” ban and the Civil provisions by legislature Service be the eliminated city departments some and not in and if others, so, Mayor Philadelphia, City how? The the Solicitor leading City, Attorney officials General Pennsylvania representing parties and counsel all having agree a direct and indirect interest on the basic they agree important issues; most issue is legislature having granted whether the certain Home City Buie change can or alter, revoke powers granted. questions Yet these basic Opinion issues are unanswered the Court’s —on contrary Opinion by implications its beclouds instead of answers them.
What does the Court’s failure to decide the basic questions people involved mean to and what likely are the disastrous results which will Opinion? flow from the Court’s legislature has eliminated the “No Politics” provisions ban and the Civil Service in some de- partments city trying ; council is a turmoil to decide what it and should do to amend these and other provisions figuratively speaking, the Charter; up
people in arms the issues are over specifically majority opinion, herein raised. The while refusing pass great upon in- fundamental issues tiny pinpointed has decision on one its volved, regrettable result —that but with this issues involved, logical opinion if carried to its conclusion will its impossible constitutionally either for People provisions or or the establish civil service working political employees after hours activities prohibit departments them in other but limit some majority specifically departments. do not so de- logical implied its result of but that is the cide, impliedly opinion. Any holds decision which even people their office the American cannot vote allow stenographers, employees in de- clerks some holders, partments engage political working right of an office after or the hours, activities my judgment discharge employee so an is in head to absolutely un-American to be and so unreasonable *16 unjustifiable. majority’s or failure refusal
The net result the questions and the which are to decide basic involved ably argued in this case will be this: so were throughout political organizations, people the Both newspapers City, council and will entire the the spend interspersed with bitter weeks and months, counter-charges debating charges basic issues par- and here undecided; committees, involved here bi-partisan, will formed to determine what tisan and be by legis- may be enacted be should amendments by or amendments be or what council, lature people for their vote; and, be submitted should they be and when worded, should course, how money place. Enormous will take sums vote should will done spent amount of work be and a colossal be n that, defeat, proposed support .or or .amendment. this reject finally adopt people each of will vote proposed happen? amendments. Then what will passed adopted appealed is certain to be Whatever by party example, to this Court. some interested If, people vote to retain the “No or the Politics” ban, provisions departments in certain Civil Service constitutionality of this amendment not others, undoubtedly appealed to be Court, will upon analy- majority, one or more careful unless more, opinion, changes study, his declare or further will sis unconstitutional and void as or local to be legislation no basis or which has reasonable classifica- tion. by majority any if
But of this Court chance even approve legislative act or a new would new ordinance, people or a new amendment voted of Philadel- irrespective changes phia, or amendments were what embodied not conclude the matter. would therein, constitutionality or ordinance of the new act immediately challenged amendment will thereafter be specifically ground on another has been still which very able counsel for raised the instant case This additional the Greater Movement. majority objection, fail or constitutional which pass upon upon, §16 of Article refuse to now is based Rule Act of I of First Class Home proposal provides: charter or amend- “No of a new purpose and intent shall of similar substance, ments qualified than once electors oftener submitted every years.” Although not mention this does five legislature, counsel contends, brief, Act adopted April on since the Charter was *17 January amendments 7, 1952, effective 1951, only by by city their can be made submission Charter Philadelphia; people people of of council tó the to aménd their Charter vote cannot until and there- in existence for five years; after it has been by upon amendment can be voted after no similar has years until another of five period electors qualified I this construc- disagree While with elapsed. ingenious case is raised the instant specifically the issue tion, it public importance and it of such tremendous if counsel’s Court, decided now this. should be people contention correct amendment to 1957 be unconstitutional prior would adopt would All of aforesaid enormous and efforts civic void. minded all of the large expenditure citizens, money, ill and all of the will bitterness which will be inevitably if should can, be, would avoided generated, Court all of vitally decided, should, important issues which have been public presented this case. detail We shall now discuss the constitu- greater Act of 1953 and tionality challenged particu- thereof. larly §5 for a declaratory judgment this case petition meaning, validity constitutionality
involved the 2S, Act No. approved August of §5 of all constitutional important questions arising thereout. Act authorizes council of the of Phila- respect with
delphia legislate election, ap- pointment, compensation,, organization, abolition, merg- functions, and duties consolidation,. powers, er, recorder of clerk of deeds, city treasurer,- coroner, quarter sessions; oyer.and gen- court of terminer of the Phil- inspectors eral jail delivery, and board county provides It then for the elec- adelphia prison,- for-a attorney; tion district continuation a. n granted ..by functions General. As: theretofore. fact In view of sembly. .leading officials -to attempted the City .to enact the- persuade city.- except. |5,:.and-that of this Act all. council abol: has
171
reorganized
merged
has
certain offices and
and
ished,
pursuant
authority
operated
legislated
to
and
astonishing
granted by
hear
to
these
it is
Act,
game
legislature
pass
deny
right
persons
organization
regulating
dealing
with
law
Philadelphia.
the affairs of the
§5
four named
from
Act in
offices
The
removes
provisions
Philadelphia’s
operation
of certain
language and mean-
so-called Home Pule Charter.
opinion
ing
We confine
of the Act are clear.
ques-
important constitutional
a
of those
discussion
any merit.
tions
which have
involved,
Assembly
constitutionality
of an Act
“When the
only
questioned,
act void
Court can declare the
clearly
plainly
violates the constitution:
when it
Township,
A.
370 Pa.
87
150,
Evans v. West Norriton
County Authority,
Allegheny
316
2d
Tranter v.
474;
Tax
Sch. Dist. Mer.
Pa.
173
289.” Allentown
A.
65,
A. 2d 480. See to the same
370 Pa.
87
Case,
161, 166,
Pa.
38 A.
Post,
111, 112,
effect
v.
350
Com. Cochran
(8th
Cooley’s
2d
1
Constitutional
250;
Limitations,
Snyder,
Ed.)
v.
Pa.
II, Section
Pennsylvania,
legislature.
the law of
cities
Under
no
are not
have
municipalities
sovereigns;
they
or fundamental
original
power
legislation;
they have
to enact
power
only
those ordinances
are
authorized
an act of the
áre in
with the
conformity
provisions
enabling-
*19
:
v. New
368 Pa.
Genkinger
547,
statutes
Castle,
549,
A.
Kline v.
362 Pa.
68 A.
438,
84
2d 303;
Harrisburg,
2d
v.
364 Pa.
may enlarge diminish its territorial its extent or functions, change its modify arrange- internal its ment, destroy very with mere breath existence, of arbitrary discretion. . .
In Com. v. (decided Moir, Pa., supra in 1901), Justice Mitchell said (page 541) : “Municipal corpo- rations are agents state, invested certain with governmental subordinate functions reasons of con- venience public policy. They are created, gov- erned, the extent their powers determined by and subject legislature, change, or total repeal, abolition at its will. have no They vested rights their their offices, their charters, corporate powers, even their corporate existence. This is the universal rule constitutional and in no law, state has it been more clearly expressed more uniformly applied than in Pennsylvania.....”
This basic right the legislature of Pennsylvania to control, repeal or modify, destroy the Charter as well as the very existence of a has been so clearly and unequivocally by stated our Court and the Su- by Court preme of the United States we wonder that it is now doubted and questioned, denied. we However, do not to place have our decision on these majestic au- thorities because both the enabling legislative acts and the constitutional amendment under which the City all Philadelphia derives its claimed or challenged powers, clearly powers limits those to the will legislature the mandate of the Constitution. Philadelphia’s Home Rule Charter of 1951 was adopted pursuant to the acts and constitu- following tional without amendments, which, as we have seen, Philadelphia would have none of the legislative powers claimed herein. The Genesis of Philadelphia’s legis- power lative was so-called Home Rule Amendment, Article of the Constitution of XV, §1 Pennsylvania, 1922. Tlie material
adopted 7, provisions November follows: be may this Amendment are as “Cities or chartered . cities of Cities, particular class, . . to frame and may given right power adopt be and au their own charters and to exercise powers to subject, however, thority local self-government, and regulations, may such restrictions, limitations, be That amend imposed Legislature.” enabling no It gives ment is so clear as to need no exposition. to or inherent to a frame a charter right city absolute of local powers self-government. to exercise It even in its sole discretion, to the gives right, to a of local sub grant city powers self-government may to whatever restrictions limitations ject Nothing done ac imposed legislature. was under this constitutional amendment until complished L. 21, Act P. legislature, by April 191¡9, 665, Rule First Class Home passed enabling Act, new char such cities the have a granted (in 11)* subject but ter Section amendments, again herein regulations restrictions limitations, Class City Section 17** First prescribed. after the limitations “Subject Act provides: Home Rule . . . exercise all prescribed, hereinafter .. authority self-government of local .”. of Phil pursuant Thereafter and electorate thereto, adopted on a Home Rule April adelphia Charter on This was January 7,1952. Charter effective detailed framework with government, a voluminous, *21 and details office created every minute directions and and the or mentioned duties officers inter alia, It that men and provided, thereunder. in County so-called of employees departments women territorially and (which were co-extensive * P.S., 3421.11. 53 Section ** P.S., 3421.17. 53 Section had Philadelphia) of who City with
geographically and immunities the American privileges always enjoyed working after hours, activities political engaging City employees and be called thereafter become should and immunities possess such privileges but no longer and be under civil service. should magnum a magnificent Charter City present designers possessed and drafters but were its opus, could not possibly Biblical of Solomon they wisdom in- and and clearly beyond question epitomized have of count- document the provisions into this corporated en- had been laws which pages less thousands to the years period pertaining acted during This monu- County Philadelphia. in- subject necessarily mental document will for at least 50 to predict, we venture terpretation, ques- civic important only hope we years, all par- will be approached therefrom arising tions with, the manner and not a judicial ties concerned the im- turmoil have made emotionalism and which football. political this ease portant issues City-County We come now XIV of the Constitution, Article Amendment, §8, Pennsylvania on Novem people was adopted after Charter was ber 1951—6 months into 2 months it went effect. Its before adopted to eliminate the dual County main was purpose in the territorial existed same City sovereignty to consolidate their gov as area known and to of Phila people ernmental functions, enable and to frame and their Charter adopt legis delphia “until Assembly local affairs General late as to provideThis limitation is accord, shall otherwise other of the Con (a) provisions seen, have with we (b) Home with the particularly Rule stitution, (c) with Amendment Constitutional *22 City (d) First Class Home Rule Act of with prior Supreme all the of Penn decisions Court sylvania; controlling language and this is the ignored by majority opinion by this case.* City-County of 1951 Amendment “(1) Philadelphia provides In short and as follows: city county hereby
all offices are abolished, county gov- perform shall henceforth all functions through ernment officers selected within its area may provided un- [Law manner as be law. questionably legislative acts.] means unquestion- [meaning,
“(2) Local and laws, city legislative regulating ably, acts] affairs prescribing Philadelphia creating offices powers city and duties of officers of notwithstanding provisions shall be valid of section of article three of this seven Constitution.
“(3) unquestionably, legislative [meaning, All laws applicable county Philadelphia acts] to the shall apply Philadelphia. to the
“(5) provisions of article section one fifteen, apply of the Constitution shall with full force and county government effect to the functions of the here- performed city government. after to be * folly permitting legislature regulate The wisdom or self-government given or alter of local province is not within the of this Court. It not point legislative amiss to out to those who are fearful of the power, anyone newspapers who has read the for the several being debated, months that the Act here involved was will know pass any how difficult it is for the act which im- portantly changes, objection, affects and over local the adminis- Philadelphia. tration of local affairs in im- “(6) effective become shall Tliis amendment upon adoption. mediately its county
“(7) Upon adoption all *23 amendment of this Philadelphia, city of becomeofficers of the officers shall provide, Assembly the shall otherwise until General and, perform elected, and be shall continue to their duties compensated organized appointed, maimer may provided by provisions Consti- of this as be [meaning tution of the Commonwealth laws unquestionably legislative time in effect at the acts] such officers this amendment becomes but effective, serving effective shall when this amendment becomes permitted complete be their terms.” spe- City-County Amendment Consolidation cifically recognized supreme power reaffirmed the legislature City Philadelphia. in and over City-County Amendment Moreover, expressly provided §1 also that Article XV, (continue to) apply Constitution full force should with provided, and effect. Article it be XV will recalled, may subject, that cities to such chartered, however, regulations restrictions, limitations and be im- posed by legislature. important It is to note that legislature deprived power, has never been of relinquished power. nor has it ever abandoned or its light provisions In the of all of these Constitutional specifically preserved legis and statutes which to the impose lature the to enact laws for and to cities, regulations such restrictions, limitations and as the legislature special and to enact local desired, laws regulating City Philadelphia, the affairs of the how any possible can there be merit to the contention that longer powers.* no has such * interesting question spe- It to note that while the was not eifically decided, Court, Steen, speaking Mr. Chief Justice for the Clark, 355, 370, 834; Lennox v. said in 372 Pa. 93 A. 2d “Since majority place ground decision their on special legislation that this Act is local and which is (1) only applies unconstitutional it to the because (2) changes because it (3) grants privileges Charter, because it arbitrarily employees and immunities of some departments. Notwithstanding any contrary implication
1.
in the
majority opinion,
applied
if this Act of 1953
to all
cities
class it would seem clear that
first
Act
ground
could not be
on
invalidated
legislation
prohibited
was local
which was
Article
§7 of the
III,
Constitution:
§34
Article
III,
the Con-
Township
stitution:
Siegle,
v.
2. the Charter. Changing the affairs of regulates law which a special or prescribes offices or creates valid might in said City, of officers and duties here) changes but not (as constitutional, if City-County Charter City. What not provide. Amendment does so
Constitutional provide? does it of 1951 Consolidation Amendment City-County laws, alia: Local and “(2) inter
provided, legislative regulating [meaning unquestionably acts] creating the affairs *25 and duties of officers or the powers offices prescribing be notwithstand- shall valid of of seven of article three of section provisions ing Constitution.” this the “notwith- majority opinion basis of the interpreta- There are three possible clause.
standing” clause. “notwithstanding” tions of this Constitution III, prohibits Article §7 or law subjects any local including special different changing or or villages towns “Incorporating cities, . Creating offices, prescribing their charters: . . bor- counties, cities, of officers and duties powers districts.” election or school townships, oughs, of 1951 natural- Amendment City-County name enumeration or not to exclude attempt did ly Article III; the 28 of Section 7 of prohibitions all of that local or laws say regulating it did not some City “notwithstanding affairs of the shall be valid of the 28 of Section of Article provisions Three”; Seven it and special said “local laws the affairs of regulating . . shall City Philadelphia . notwith- valid the provisions of Section standing Seven of Article Three of this Constitution.” A literal interpretation this would language as the mean, Attorney General that none of contends, provisions or prohibitions contained in Article now III, apply City §7 But I Philadelphia. believe that a careful analysis the reasons history Amendment, constitutional development a consideration entire Amendment show that is not the time mean- of this I ing paragraph clause. 'believe it means this —local and special laws regulating govern- mental affairs and creat- of of- ing prescribing offices duties ficers of the shall be valid notwithstanding thereof prohibitions contained Article. Ill, §7. holds, Mr.. Certainly Justice clear, Stearne that all of Article III inconsistent provisions which.áre later, with constitutional amendments are repealed by n and the later amendment implication mtist prevail.. The. 26 .of the majority 28 prohibitions .hold'.that Article-III, n contained.in -of .the Constitution are §7 still applicable Philadelphia' because .'they. were .not excluded, specifically from-the.grant power-contained in. City-County the. Consolidation' .Amendment; and-
181 prohibitions apply 2 of case and render the 26 1953 Act of unconstitutional. Amendment point not as clear on this as it be. should However, prohibitions whether in Article 26 contained apply, §7 applies, still III, whether none or whether apply only those which are not inconsistent with City-County my judg- is in Amendment, immaterial ment, at this because none of the 26 time, applicable challenged are to this Act of 1953. why §7
The reason Article III, Constitution prohibited special incorporating 1874 a local or law changing City-County cities or their charters, spe- Consolidation Amendment did not contain prohibition cific In is clear. 1874 when the Constitution adopted, legislature, only was legislature, and grant change could a charter. It was therefore both necessary right wise and at that time to restrict the legislature by expressly prohibiting it from enact- ing incorporate city change special local or laws argues its charter. The Commonwealth that this rea- necessity son and ceased the Home Rule when Constitutional wit, Amendment, Article XV, §1, empowered grant in its discretion to power adopt “the cities and to frame and their authority own and charters to exercise the and self-government, subject, of local to such re- however, regulations, be im- strictions, limitations, posed by Legislature.” If thereafter a charter adopted city certain ordinances were one council they inevitably important would almost differ some particulars adopted by from those other councils; legislative imposing regula- acts restrictions necessarily differently tions deal would with different provisions self-govern- and different charters of local prohibition consequently the the 1874 Con- ment; against changing local or stitution charters laws *27 as to doubts exist was Whatever impliedly repealed. of Home Rule Amendment this when the contention, City the First 1922 considered with Class together City- with the Home Act of 1949 and especially Rule au- Amendment 1951 Gounty (which Consolidation of to special and laws thorized to local legislature pass the the of Philadel- City of regulate the affairs governmental to the prescribe for the and to create offices City, phia, of in City, spite the and duties of officers of powers 1874 the in Article III, the thereof prohibition §7 be- are removed, all doubts Constitution) completely First Amendments Constitutional cause these abso- are Act taken together Home Rule Class City the necessarily repeal and inconsistent with lutely special local or a charter changing prohibition the crystal as when This clear becomes legislation. is examined. City of Philadelphia Charter of the length. pages Charter is 100 Philadelphia City It creates in detail. and scope is encyclopedic It defines the powers and minutely describes offices and City Philadelphia; officer every and duties of very and with minutely great it every page Philadelphia. City affairs of regulates detail it and all it does. exactly That is what does How, then, possible regulate is it to appropriately ash, we may or to create City affairs and duties powers to of officers prescribe offices, ques- without the Charter? That changing of the the majority opinion. is unansioered by tion for the language The reason City-County seems to Amendment us obvious. When Consolidation provided constitutional amendment that all local laws regulating affairs some persons should be valid, might have grounds doubting had reasonable whether sufficient to general power was enable the broad, legis- powers offices or to prescribe 1ature to create people In words, other City. duties of officers “to the power differ as to whether reasonably might also to “create power the affairs” included regulate reasonable doubt was remove any offices”, on that subject language granting legislature ivas in the expressly City-County inserted Amendment. Consolidation
It totally unnecessary expressly was authorize, the City-County Amendment, Charter legislature change Philadelphia’s since had the constitutional (a) power, *28 to seen, prescribe we have the conditions and limitations a under Avhich could frame city (b) a the charter; under legislature could, prior the decisions of this alter or revoke at Court, any charter will; (e) the eneylopedic Charter been Philadelphia adopted had six months before the City-County Amend- of people ment Pennsylvania, adopting this constitutional amendment giving the legislature the right pass to local and special the regulating Iuavs affairs of the of City knew that Philadelphia, was virtually to impossible regulate the affairs of the city automatically without and inevitably changing the detailed massive, Charter.
Moreover, the Constitutional Amendment of 1951— of which course supreme over the Charter and over Home the Rule Act of OATerany prior pro- vision the if Constitution, any, which is inconsistent therewith —does not limit the legislature to the in- nocuous position only being pass able to legislation to city council to permit frame and an pass ordinance pursuant nor thereto; does its limit it language merely to the regulating only and then to a affairs, very limited of former extent, county offices and former county of- as the ficers, effect, hold. majority, This is con- language specific trary Amend- the clear and city peo- grants, not to council or to ment, right legislature (a) ple hut to [govern- regulating pass special local and laws Philadelphia, creating affairs of the mental] prescribing city and duties of offices (Sec. (b) 2); and to enact laws officers compensation provide appointment, the election, (Sec. 7). organization County of former officers language plain and of the Amendment so is so contrary clearly Amend- contentions that the to these cannot be ment thus rewritten. majority’s position
To summarize: legislature pass regulating can local and laws provided they the affairs change City’s my judgment, do not Charter, is, impractical illogical so as to be unreasonable, utterly unsupportable. Statutory Section provides presumption of 1937 Construction Act not intend a unrea- result that is does impossible With of execution or absurd. sonable majority’s I con- deference, due am convinced that the meaning on struction Amendment particular point prohibiting change in the Charter *29 is so as to be absurd. unreasonable been that of
It has contended other sections the regulate City Act affairs of the of Philadel- 1953 the analysis changing phia An its charter. will without specious really contention Section how that is. show legislative of Act of a mere declaration 1 of the 1953 is purposes. 4 2 and of the Act of 1953 do not Sections City regulate the affairs of the the merely enabling pro- City 2 contains Section contends; City legislate authorizing Council with re- to visions §4 spect therein offices mentioned, to the five legislative provides merely prior acts and confirms
185 provides for the of functions. Section a continuation attorney the in accordance with election of district granted authority specifically the express to which was City-County legislature Consolidation §7 of the City’s or construction contention Amendment. The gives concurring Opinion adopted in the has been au- of 1951 which Amendment to the Constitutional regulating pass the af- legislature laws the thorizes Philadelphia mean- a restricted fairs the City-County ing Consolida- make Section 2 as to meaningless. absolutely tion Amendment effect legislature, if its City’s contention prohibitions in Article power unrestricted were granting special pass laws §7 local and could III, changing changing descent, the laws of divorces, fixing rates of interest, or evidence, rules of obviously not be would merit. This likewise without [governmental] “regulating affairs prescribing creating and duties offices or authority spe- city” which was of officers City-County legislature cifically granted Philadelphia is an Amendment. still Consolidation Pennsylvania integral part the Commonwealth of PenusjTvauia, they adopted people when City-County x\mendment of never Philadelphia could be insulated, said or intended separated permit from the State so as to divorced special laws for with reference local and matters interest divorce, descent, rates, to statewide subjects and other similar of evidence of state- rales importance. repeat, I The Amendment, authorized wide special pass regulating local and laws Philadelphia. governmental affairs of the Special privilege immtmity. or exclusive 3. Arti- prohibits passage any §7 local cle TIT, “granting corporation, association law or in- *30 or immunity, privilege or exclusive any special dividual or individual or to association any corporation, a railroad track.” lay to down right to pin- on seem majority The main ground Act of the latter part their point opinion §5 in the Philadel- the provisions which asserts Home Rule Charter to civil service phia relating officers and political employees activities prohibiting inapplicable shall the board of revision sheriff, commissioners, their and to registration commission, taxes, hold this is unconstitutional employees. majority it is a local and because law which grants certain individuals —I assume the officers and employees in the 4 offices mentioned —a special privi- or exclusive lege immunity.
There are several answers to this
each
contention,
of them
controlling.
first one is that
the Supreme
Court of Pennsylvania has decided that
engage
political activities after
not
work hours is
a special or exclusive
within the
privilege
immunity
meaning
Constitution.
The legislature may pre
scribe reasonable conditions or
regulations
public
employment
may prohibit political
office
activity of
holders without
their
abridging
constitutional
rights:
See
v.
Duffy
Pa.
Cooke,
427,
The issue presented desirable or undesirable wheth system is civil service undesira desirable or on activities is political er the ban constitu has legislature but whether only ble,* service civil power apply tionally in employees activities to some and to ban political for the discretion of This is a matter offices. some A very not of the Courts. wide dis the legislature, under our in the cases, cretion vested must, legis must be held consti the act of lature; clearly plainly tutional unless unconstitutional must be classification sustained Courts * sincerely political To those wlio believe that activities are every good problem and civil is the answer to anathema service government, say people good gov- we that most who believe expórtame ernment and who had actual have with both civil serv- political activities, agree possesses ice and that each merits and demerits, advantages drawbacks, each, par- and that but ticularly political activities, is bad when an carried to extremo. history Country one When studies of our and the record government Pennsylvania of fine in the rural counties of which service, help wondering had civil never one cannot how our Coun- try grew greatest Country to be the in the world without civil service; Country today engaging and what our would be like if political had been activities considered or exclusive privilege, Jefferson, Hamilton, Franklin, Madison, Jay, Lincoln, prohibited Theodore Roosevelt and Franklin D. Roosevelt had been exercising greatest privileges enjoyed by any from one free- dom-loving nation.
n unless ground no reasonable there can be found such classification. on case was facts without presented agreed
This in the absolutely There is record testimony. nothing justifies assumption by major- this case of the 4 offices employees per- who were ity mitted engage political activities after work hours are the same performing precisely type work and the same receiving pay as workers other city offices. *32 It is obvious that assessors real and property the ap- praisers of can personal and property be found classified in no other in department than the board of revision of and that taxes do not they perform or exactly precisely the same work as do and clerks in employees the mayor’s or coroner’s department, in department, or the city treasurer’s or the clerk of department, court’s depart- or in the board of ment, inspectors of the Philadelphia County Prison. The same observation is ap- likewise plicable to the deputies. sheriff’s
Reasonable for provisions civil been service have sustained as Constitutional In by this Court. Haver Township et al. v. Siegle et Pa. 346 28 A. al., 1, ford 2d the Act of June P. L. for 786, 5, 1941, provided in civil service such policemen municipalities or have three more paid police The Court said officers. : it (page 9) argued is that the Act “Finally, violates the twenty-sixth clause of section Article III, pro local laws hibiting corpora granting tion or individual any special immunity. privilege It that the statute to members grants is said privileges force in first class townships having police force of more than three and police members, denies in other such The ob townships. them to policemen always differences happen vious answer is such affairs legislation regulating municipal whenever is in in and- not municipalities made effective certain argument If an others. were civil service sound, inaugurated could never been have unless were done every borough city, township in and in the Com- town, patent monwealth at the same time. The unreason- suggestion destroys ableness of such a it.” Township grant case holds that a Haverford privilege policemen in civil service towns having police a 3-man and force the exclusion there- policemen from or the denial thereof to in towns hav- ing police a 2-man force ais “reasonable classification” and therefore If constitutional. that classification, policemen police where the 3 and in town police exactly exactly do town the same work and have presumably same duties, receive pay, the same how can it held constitutional, the classification the instant where assessors case, appraisers employees and other one more of- manifestly fices have work and duties different from employees plainly arbitrary other offices, clearly unjustifiable. Township case Haverford directly principle or in controls the instant case and destroys City’s majority’s posi- contentions *33 tion on this issue. Monaco, Superior Borough,
In Iben v. 158 Pa. Ct., supra, Constitutionality the Court sustained the May the Act of L. 14, 632, P. 53 PS which 327, granted any policeman borough or fireman of a who injured performance in was of his his full duties, salary period during for the which he disabled was (less compensation payments received), workmen’s though Act in even was limited its benefits two employees apply municipal classes of and did not to all employees generally... The Court held the Act that' did 7-of III,-section not violate Article the.Constitution. again This decision once demonstrates that even--where money payments' provided' the-legis- are' under- an Act,' employees separate and reasonably
lature may validly and grant others from departments of certain municipal at same and and privileges, benefits special them departments municipal other employees exclude time therefrom. on privilege or exclusive
This proposition considered was opinion their majority peg so case this argued able counsel who by nor argued neither it was that totally inapplicable the city except and in the Court lower briefed the parties for all many none counsel solicitor, subject mentioned discussed or even involved Court; in this considered briefs lengthy their well by mentioning to be even it considered worth nor was learned scholarly exhaustive, his Judge Milner for the below. opinion Court cited two cases majority Solicitor to sup- Court of this Court and one of Superior These cases supporting their instead of port position. far-fetched as inapposite that are and so position so majority’s to demonstrate the utter untenability Those cases which we position. other cases, many is meant do, aptly shall illustrate what cite, however, the words by “special privilege immunity”; further demonstrate has never here- clause tofore stretch of the remotest been imagination as the applied majority now apply it.
The first case cited
ex
majority
Com.
rel.
v.
Graham
333 Pa.
191
provision
a
held invalid
Those are the
decisions of
Court or
Superior
majority
Court which the
cite
sustain their
to
position
special legislation
local
this was
granted special
privileges
Avhich
and exclusive
to em
ployees
City departments.
of four
To these cases
we add: Com. ex rel. Maurer v.
368 Pa.
O’Neill,
369,
Pittsburgh
In the Kurts case this Court declared unconstitu- gave tional dependent an act Avhich wiA^esand chil- employees dren of State part in the armed services employees’ pay. These cases are so from different the instant case, analogy so pos farfetched as no furnish support majority’s opinion. sible for the In this con nection and as further illustration of Avhatis meant by “privileges and we immunities”, call attention to Loomis v. Board 376 Education, Pa. A. 2d and Turco Paint & Kalodner, Varnish Co. v. Pa. A. 421, 184 37. employed
Loomis was school teacher the State. He was also lieutenant colonel in the He Reserves.
192 a leave of 15 with
requested
days
absence for
military
out loss of
in
Act of
accordance with the
salary
July
which
1935,
clearly granted him
12,
right.
Commonwealth contended that
unconsti
the Act was
tutional because
Article
the Con
it violated
III, §7
as a
stitution
law
to individuals
“a
special
granting
We
special
immunity.”
exclusive
sus
privilege
in a
constitutionality
unanimous
tained,
opinion,
rejected
that Act
the contention
Act
“a
granted
special
privilege.”
individuals
exclusive
In
words,
other
held
was constitutional
we
in
his full
grant
person
salary
only
the Reserves
(not
but
periods
vacation,
also)
such as illness
during
for
in each
in
he
period
year
of 15
was
days
or maneuvers. The Court
engaged
army training
a clear
of the Con
there said:
but
violation
“Nothing
nullifying
legis
stitution
justify
judiciary
will
indulged
must be
Every presumption
lative enactment.
claims an Act is unconstitu
favor,
its
and one who
Tranter v.
heavy
tional has a
burden of
very
proof:
et
Pa.
173
Authority
65,
316
Allegheny County
al.,
Pa.
A.
Busser
et
282
Snyder
et al. v.
289;
al.,
440,
Rib
Pennsylvania
128 A.
Railroad Co. v.
80;
let,
pro
“Mr. Justice Roberts stated in State Board Jack v. very 283 U. S. "A son, 539: wide discretion must legislative power be conceded to the the state callings, occupa classification of trades, businesses or subjected regu tions, forms through lation or taxation an or excise license If tax. capricious arbitrary, is neither nor selection upon rests some reasonable consideration of difference policy, equal protection there no denial of the duty Our is to sustain law. the classification adopted by if there are substantial dif occupations separately ferences between the classified. great.’ Such need not be differences purposes have “We sustained of taxation the corporations manufacturing classification of beer from (Com. manufacturing corporations all other v. Ger- Brewing supra), Co., mania held the we distinc- tion between made them reasonable one. Classifica- upheld tion has been between anthracite coal and bitu- (Heisler supra, minous coal Thomas Collieries v. Co., 194 insurance companies
affirmed 260 U. S. stock 237); (Com. Girard Life insurance v. companies and mutual of taxicabs corporate Pa. owners 558); Ins. 305 Co., Quaker (Com. Cab Co., v. individual owners Quaker City on another point 287 Pa. reversed $. com foreign 277 17. insurance 389); Cab Co. Pa., v. (Germania companies and domestic insurance panies Pa. owed money v. 513); Life Ins. Co. Com., by corporations (Fox’s and money owed individuals and stock stock in trust 337) companies 112 Pa. ; App., (Com. v. Trust Mortgage Co., in other associations other many Pa. situations.” 163, 177) ; or exclusive “special is meant the words What as used Article immunity” III, privilege §7 from the authori- foregoing is clear Constitution privilege exclusive question “special ties. The *37 legislative whether the immunity” question or as arises, or arbitrary, was reasonable classification money, the when only from clearly authorities, appears or are or exemptions or taxes, or position, preferment, clause ob- the the legislature; or imposed granted ques- with the relationship no connection or has viously it case. be the instant If, however, tion involved be could political that activities- assumed arguendo mean- within the and immunities” “special privileges I hold that the record Article §7, of would ing III, Court or enable this of facts which would barren the au- foregoing to in the of light other Court hold, or character- no differences there were thorities classification. the legislative to justify istics To summarize: to a city but, not The Constitution grants,
(1) A to legislate. the and legislature right power or a right self-government no right has City power and as, its except if, to own adopt Charter, frame what- subject and then to the legislature permits, when legislature may im- limitations the restrictions and ever pose. right Philadelphia City The to frame adopt by the Home and Charter is authorized its own enabling Buie Amendment of 1922 and the Act of City and 1949 to the First Class Home Buie wit, Act, City- as said Amendment and said well as Act, County preserve Amendment legislature power impose upon right and City limitations restrictions, regulations provided, and desire, course, they do not violate Constitution.
(2) Pennsylvania, under the City-County Consolidation Constitutional Amendment, right has undoubted to enact a local and regulate governmental law to affairs prescribe and to create offices and to City; of officers of the duties necessarily to amend includes the voluminous, detailed Charter.
(3) §5 The Act of 1953 and thereof are valid constitutional.
(4) provision §16 Article of the First I, City Home Act. on Class Rule of 1949: “Limitations Presenting Adoption For and Petitions of Charters proposal Amendments—No charter new purpose in- amendments of substance, similar qualified tent electors of- shall submitted every years.” tener than once in five consid- when —even *38 conjunction in ered with the Home Buie Amendment by particularly by of 1922—-refers its terms, its proviso only petitions of to to and resolutions subsequent people on of the Council vote by applica- proposals no submitted and has Council, Legislature specifically an Act of the tion to which is City by regulate of authorized to the affairs Amendment of winch City-County on subject. is the latest law supreme I For and all of each would foregoing reasons, affirm Common the Court of Pleas judgment in No. 3 of each these Philadelphia County appeals. by Dissenting Opinion Mr. Musmanno: Justice is a deed an Act of Legislature To strike down a death in to that of sen- gravity affirming comparable every And when only tence case. it capital natural so solemn warrant reluctance signing the scales by overwhelmed the word by law, logic justice by crushing weight insuperable and ir- to a appalling that one can assent deed such mind-impelling I fail to finality. revocable see a matter coercion this case. As soul-stifling sys- cardinal our whole upon fact, principle tem of deafeningly is founded government argues an Act of seeks against destroying Assembly which reassert It rights fundamental was citizenship. because of the deprivation political rights partici- pate government our War was Revolutionary because of the denial of fought; political rights was of a numerous and honorable land that race our guns the Civil War rent land for four years; it is because of a tyranny which seeks international terror to chain mankind to the of slavish and voice- post less obedience that today our natural resources are our being depleted, menaced treasury bankruptcy with and the blood of our on youth to war being pledged distant battlefields.
The reasons advanced Mr. Justice by my colleague in behalf of the Act Bell be- constitutionality fore us for consideration are not only unanswered *39 Majority Opinion the Majority Concurring it but, me, seems cannot be Opinion, they answered, successfully. filed Mr. Dissenting Opinion Justice Allen Stearns also a commanding place takes in the arena discussion here and no adequate finds response in the or Opinion Majority Majority Concurring Opinion. Mr. Justice Bell in his Dissent from the quotes “
Home Rule Amendment: be chartered . . . may ‘Cities or cities of Cities, any particular may given be class, power adopt frame and their own charters and to exercise the authority local restric to such self-government, subject, however, tions, limitations, imposed regulations, Bell then Legislature.’ Justice very properly ”* comments that amendment clear “enabling is so as to need no Nor exposition.” has this constitutional proviso been changed by word syllable since was worked into mosaic supreme law land in year 1922.
On August 26, 1952, Legislature Pennsyl- vania, acting pursuance quoted the above reserva- tion of power, assuring enacted law and guaranteeing to the officers and in the offices of employees Sheriff, Board of Revision of Taxes and Commissioners, Registration Commission certain had rights which been curtailed the Philadelphia . Home Rule Charter of 1951. The April 17, Majority Opinion Majority Concurring Opinion speak of these restored as “a Or rights special privi- exclusive -But lege immunity.”. these are not rights . . privileges' exclusive immunities. n If the -rest .of oné- surveys one with almost the.globe, inhabited, . h'alf of surface to. whom by people its troubled throughout,-mine, *Italics
self-government say one that from could unknown, *40 point government participation is in view, world “special par- privilege,” indeed a in America but suck every ticipation guaranteed in and it is to citizen, is, very participation America the makes that which fact, greatest democracy history. in Assembly of this made Commonwealth, General up Representatives and 50 elected Sena- of 208 elected collectively Pennsyl- speaking for over 10,000,000 tors, advantages of the two decided that vanians, have political genius party system, is the of American which democracy, shall not be denied the citizens involved say repre- litigation. in Who there to is people not make this decision? sentatives arguments, stat- In briefs, citations, the ocean of upon which the charter sections subsections utes, windswept and been buffeted, this case has issue imperative, in order to com- it avoid storm-tossed, constantly legalistic keep plete shipwreck, before to eye quoted already Rule Amendment. Home one’s pre- mathematical chart marks with This is the which reaching the destina- cision the course to be followed only port people’s And that is the will. tion guided; litigation it is the should be which this into constitutionally, legally objective only which Opinions morally proper. the Ma- filed Neither the appellants jority long can nor brief filed modifies point of the Gonstitution one section the'controlling' Rule Home or limits Amendment.. deciding about cases Much is said constitutional Legislature. interpreting and intention will read more than one needs not I do believe to. Act parent law-makers. of its the will 433 to ascertain No. interpretation .'.required, could well were But if Assembly in-this reassert, even wished be that tyranny oné--party' (in Which way, view small lias shackled. 800,000,000 inhabitants globe,) adherence the State of Pennsylvania prin- ciples democracy,
I do not believe that the Legislature intended with Act No. 433 to belittle Civil I Service, certainly do not. The merits Civil effectively Service have demonstrated themselves no many years. over Still one could ex assert cathedra that the Civil sys- Service tem has reached such a superlative of human ef- level ficiency that to advance one suggested improve- word ment constitutes lese majeste.
There are those who sincerely believe that perma- nent- tenure often into deteriorates slothful perform- *41 ance of duty and general indifference to public welfare. a comforting assurance of fall- non-stop check pay ing unremittingly from the of- permanent heavens could fice-holding inspire well the average employee into an endeavor over beyond required what is him. in discharging requirements of his but job, it could also corrode in him the of initiative. spirit Calling particular a system “merit does system” not mean that it necessarily meritorious. In any meeting of earnest there citizens, will be found those who look upon Civil Service as a for guarded haven bees and there are busy those who will consider it to be a shelter drones and sluggards.
As last recently as the President of year, the United States indicated that the iron roof of Civil Service covered too- many government employees. The New York Times June 26, 1953, carried the item: “Presi- dent Eisenhower-issued today an Executive Order with- drawing protection Civil Service from about 134,000 Federal thus jobs, it making possible dismiss Demo- crats holding confidential positions. policy-making
- - “The order' consisted merely amend- paragraph ment to a Service but -Rule, forecasting,.the Civil Philip Monday, Young, Commis-
order on Civil Service strengthen the sion declared that it would chairman, system career Government service.” merit opinion Civil If it of the United States was presumably Presi- also that of Service Chairman, system im- that the merit would dent Eisenhower’s, persons up proved dismissing until who 135,000 planted immovably regarded moment had themselves as reasoning payroll, by type does on an eternal what Legislature of at the conclusion that one arrive Pennsylvania freedom of selec- not the same does have in the tion and non-civil service between civil service government Philadelphia? City of opinion here a difference of
There be involved pro- permanent is a tenure as to whether wall unjust against a cur- tection dismissal whether ineptness, flourish indifference tain behind which opinions of difference in but it is because indolence, Congress, States State Assem- United we have city borough township commis- blies, councils, types legislative sioners and other bodies. sov- ereign body of deliberative the Commonwealth of Penn- sylvania has determined that certain offices in the government could and should do, do, By Civil Service features. without certain what *42 challenge Legisla- the of this Court decision the does respect? repeatedly in -We have said- that it ture question province the of this Court to the wis- never policy. only legislative We can interfere dom of a with Assembly beyond goes solemn acts when it the organic of- the law of the land. But, the framework nothing thé'Majority Opinions repeat,-there--is in I the-Legislature did-usurp that unconsti- show which powers»"" tutional
n -‘"'In Pittsburgh Petition, Pa. 227, this-Court, emphatically (cid:127)'speaking-through-Mr.'-Justice Brown, dé- municipal corporations, dared: . . the creation of conferring upon and the of them certain and subjecting corresponding de- duties, them to does not prive general the state that con- of possessed. they over trol their citizens It before authority enlarge has still amend their charters, powers, diminish their extend or limit their boundaries, consolidate two more into and overrule their one, legislative im- action deemed unwise, whenever it is politic altogether unjust, and them even abolish legislative are discretion those which substitute different.” deny appellants, do not course, body
Legislature supreme law-making the Com- is the position once to be that but their seems monwealth, spoken Legislature subject of home rule on the has speak again. appellants would not charters, topic phono- any given Legislature make on They regard Legis- graph one record. Avith would foreseeing every possible Apollo, lature an oracle prepared an- requiring for those future it to be event, conjectured holding ticipated happenings, it to the predicted rains number of umbrellas for parasols predetermined for the forecast sun- number Any be could not cor- in calculation shine. mistake simply would be error dirination rected people.. Procrustean bed to a Fitted ill luck of the people Legislature, have no would repine. complain, protest or ap- respect in this it is obvious
Of course, Legis- pellants for the contention water their write living, speaking mirror is intended lature today people’s not mis- a museum will of. History that the ideal teaches prophecies. calculated only .phase government after .any given attained is. A1-, and error. trial even experimentation, debate, *43 202 interposi- legislative no clause for future
though saving Amend- tion nonetheless the Consolidation needed, was action for future legislative ment specifically provided of this amendment adoption Section 7: “Upon through of the city all officers become officers county shall shall Assembly of until General and, du- their perform otherwise continue to shall provide, and or- compensated ties and be elected, appointed, pro- may in such manner be ganized provided as Com- and the laws visions of this Constitution be- amendment in effect at the time this monwealth officers when serving comes but such effective, to com- permitted amendment becomes effective shall be plete their terms.” enacted now, by duly has Assembly
The General the Legis- The decision of provided. otherwise statute, even lature disappointing, disillusioning, and con- citizens who worked good indefatigably advocacy adoption in the scientiously drafting they but must bow to charter, their representa- will of the as people spoken through tives Harrisburg. in their brief 5
Appellants Section argue Act of Legislative 1953, “provides August, former county offices are re-constituted and that they shall be if Amendment governed City-County had never been adopted.” This is exaggeration with- out benefit of There is allegory; no such intention, express or implied, Act. As .matter fact, the very Declaration of Purpose Act definitively proclaims: “The purpose act ..this out carry the intent and purpose Article 1 XV,. Section the Constitution as the ‘Home Pennsylvania, known Rule and Article Amendment’, XIV,. Section. Constitution, of Pennsylvania,, known ’as. ‘City-. th.e Amendment’,’’..-'A County *44 sympathy any lack No. 433 in Act I do not detect Philadelphia home Legislature part for on the firm Act a in the I can see rule. At the same time part legislators of the Common- the the intention on rights protect power the to to assert their wealth proper they regard in manner American citizens Philadelphia and salutary interests of best for the and the Commonwealth. Opinions Concurring Majority Majority Act No. 433 their demolition
seek to rationalize regard in pointing they as inconsistencies out what point They officers are out that elective Act. the appointive in joined certain that clerks with officers, that clerks service, civil offices are to be controlled service, civil be free from in other offices are to arbitrary. Most Acts that classifications are some arbitrary Assembly in the to sense are bound be any quo they alter or abolish status affect, very legislative given a is the nature of situation. That right to into have no whatsoever enter we act, objection legislative a to halls raise hand what transpiring a is there unless we see clear violation of judicious, saga- We have made this the Constitution. plain in cious and salubrious aloofness number of In Commonwealth v. Pa. Grossman, decisions. speaking renowned Justice for 11, 15, Mestrezat, judge said: “The is the sole Court, expediency as well wisdom as of statute, necessity legis- enactment, its whether necessary expedient lation is be without im- wise, portance determining to the court its constitution- assembly ality. In other a free words, has hand subject legislate every on in such a manner as it proper prohibi- deems unless there a constitutional clearly expressed necessarily implied.” tion -why any perspicacity reason there Is should not us? We have no be observed the case before of the Legislature, to veto the solemn pronouncements decided that after constitutional has which, deliberation, in four offices shall employees allowed freedom in activities. political not of itself phrase, “political does activities,” It import misconduct or is true impropriety. during phrase has, last several decades in certain taken on a connotation associations, certainly not included in the of Act No. 433. The scope Leg- islature never intended can imply, (nor one *45 read into the Act reasonably implication,) that there is evil a in worker’s something government holding idea on what is expressing any political- best, for ly, city, state nation.
The incredible paradox while some political science academicians see in something calamitous a typist or file clerk a expressing preference for mayor, governor or at president, they the same time argue strenuously for free speech for Communists (using the glib phrase of “a market place of ideas.”) As recently as January Mr. 25, 1954, Justice Jones, speak ing the majority of the Court in the case of * Nelson, Commonwealth v. 377 Pa. 104 A. 2d stated that the all individuals (including Steve atom Nelson, bomb spy leader of the Communist Party of Western “to Pennsylvania), speak freely .and- without fear, even in criticism of the government, will (cid:127) at the same time be protected.”
In striking No. 433, down Act Majority.do the. not. define the “political boundaries of the activities”- therein- referred to. What distinction is to-be. made.between
* majority of the Court in this case consisted of Chief Stern, Justice and Justices Stearne, Jones Justice Chxdset.. vigorous Bell wrote a dissént. Neither Justice Arnold par- nor 4 ticipated ease; in' the' deliberation'ór decisiorrof government a clerk castigating Communist a Mayor, criticizing the Gov- in the office Sheriff’s According to the Secretary of State? ernor or the reasoning the Communist cases, in two Court’s these urging change speech protected in even free will may express government, a desire clerk but the who governor change mayor, councilman, to see a discharged. congressman, not This is will be way doing things. And as American traditional British common law, custom and tradition made the through so have American and tradition entered, custom judicial warp interpretation, info statute and woof of American law. (as recently Monday,
As March re- 22, 1954, ported Philadelphia Inquirer 1954), in the of March 23, Republican of both the leaders and Democratic urged greater participation Parties citizens political Speaking activities. at the Anniversary 50th Dinner of the Committee of 70, Republican Leonard W. Hall, National de- Chairman, place politics clared citizen’s was “never important,” today. more than He said that the national leadership administration under the of President Eisen- *46 participation urged “invited hower, continued in- average terest of the truly voter to achieve a citizen government.”
Stephen A. Mitchell, Democratic National Chair- man, said a citizen cannot be “if effective he politics” party stands aloof from and restricts his government voting. emphasized interest to He fully to he participate effective, “citizens must party selections officials and candidates.” distinguished Neither one of these citizens of the suggested United States employes that the of the four offices litigation involved in this are not citizens in the fullest sense of the word. comparatively al- short terms for the
The reason mayors assemblymen, coun- Congressmen, to lotted people opportunity reasonable at cilmen is to allow upon judgment their pass work to intervals only properly representatives. can That work expression through appraised the fullest evaluated and study, those who those who observe, those who are on engage There statutes in the work itself. posi- punish their misuse official those who to books profit private or for coercive succession tions for office. today of news extensive dissemination
With the through competitive news- cumulative media of papers, magazines, but there is radio and television, repetition made the abuses chance for little past. up many governmental It scandals so Legislature to whether was therefore for decide “political be conducive to such activities” would Legislature repetition, and the has decided that away danger public melted the crucible of has knowledge public awareness to constitutes what “political proper activities.” Majority Opinion Concurring Act condemns deny grant No. 433 inter it does not because, alia, privilege political activity City employes, all only employes particular City but of four Majority Concurring offices. the Justices in the This Opinion regard arbitrary as an selection. The Penn- sylvania may Legislature make such as it. selection purposes experimentation try sees fit. It out four and then offices other offices later. how- If, (as appellants Majority ever, of the Court contend,) removing seem the cloak of Civil Service employes from the subject backs certain will political rigorous them a they climate from which *47 protected, Legislature, then, should be the action of the to those and warmth shelter giving is extent, to that 433. Equality Act No. of scope not included within misery. mean of equality not does privilege laws in local and discussion in Jus is answered well Opinion Majority Concurring other and all learned Dissent, Steaenf’s tice Allen projected unconstitutionality behalf arguments Majority Concurring Opinion, Majority in both the Bell’s dis covered Justice well exceedingly are Dissent my terminate Dissent. tinguished I, therefore, is long Philadelphia the statement so with will Assembly the General Pennsylvania, legis part late for it all the conferred powers upon with Mr. As far back as the celebrated 1870, Constitution. for this “The speaking Justice said: Court, SiiARSWOGD, all beyond question municipal . It . an instituted corporation. merely agency for the purpose in detail sovereign carrying out objects of revocable government essentially — no vested its agency having — charter or franchises —the act of erection being with the no sense a contract state —and therefore fully to the control of subject may who en legislature, its or diminish territorial extent or its large functions, modify its internal change arrangement, with destroy very existence, the mere breath its discretion.” arbitrary (Philadelphia v. 84 Pa. Fox, 180 (1870)) Mr. years later, Justice Mitchell
Thirty emphasized the same irrefutable doctrine the case of Common wealth v. 199 Pa. 541: Moir, “Municipal corpora tions are agents state, invested with certain governmental subordinate functions reasons of created, public convenience and policy. They are gov the extent their powers erned, determined by legislature, subject change, or total repeal, *48 rights They in no vested have at its will. abolition corporate powers, or their their charters, their offices, corporate universal This existence. their even has it been in state no rule of constitutional law, applied uniformly expressed clearly than and more more Pennsylvania.” political participate in is one activities rights enjoys. It that a citizen of the fundamental effectively most identifies in this manner that he clergy, part great himself as Commonwealth. The public- newspapers, organizations and other civic spirited groups urge every campaign election people Voting enough. Voting vote. alone is not ignorantly voting can cause more harm than not at all may press because blindness one the lever which will open the door to a candidate bent on mischief or another wholly qualification experience without for the office sought. study, intelligent Conscientious observation enlightened untrammeled discussion make for an citizenry, enlightened citizenry good an makes for —and government. gag
As I not would or shackle the lowliest citizen participate in the United States his desire to in government padlock exists for I him, would not lips political throw chains around citizen places, Philadelphia, very all in, cradle of —of — liberty! (et Appellant). Downes v. Hodin al.,