*1 Commonwealth, Swing, Appellant. ex rel. Fox Mus Before C. J., 1962. March
Argued Bell, Eagen JJ. O’Brien, Cohen, Jones, manno, *2 Porter, David F. him Robert E. with Maxwell, Greenwell, Harold D. David and O. Green- Maxwell, Reb- well, Smaltz and Porter, <&Royal, Obermayer, appellant. Maxwell for Hippel, <& mann, Louis Albert him Read Rocap, Jr., with Blumberg, and Sand, R. A. W. Paul Bloom, Joseph deFuria, appellee. A. for James Lynch, by Opinion Me. November 28, 1962: Eagen, to elected in Albert H. was Appellant, 1957, Swing, Township, term as treasurer Radnor four-year He township County. first class located in Delaware 1958, assumed the duties said office in January, been position at present having and holds time In in to a term 1961. four-year re-elected second elected commissioner appellant county was for a a third class term county, County, Delaware in duties of that office four He assumed the years. 1960. January H. Dela- District Jacques Attorney
Relator, Fox, in complaint quo against filed a warranto County, ware township that the offices alleging appellant by commissioner are held county treasurer and which responsibilities duties and functions, appellant that and this reason the that are appellant. illegally held are positions objections to preliminary juris- filed Appellant court that Ar- contending under below, diction §2, ticle to determine whether or not two incompatible is vested exclusively legislature, question
cannot be decided argument, the courts. After appellant objections dismissed and preliminary were answer. given was within to file an twenty days This appeal was taken. legal question
Before the merits of the deciding motion dispose appellee’s we must presented, appeal. dismiss the contends quash Appellee appellant’s the order of the court overruling below juris court’s preliminary objections challenging diction subject interlocutory over matter is March appealable. Suffice it the Act of say permit designed P.L. P.S. 5, 1925, was §672, As stated appeal present situation. *3 Pa. 54, 383 Mercy Hospital Strank Johnstown, moved 117 A. 2d “Plaintiff has 697 57, (1955), decree the on the that the court’s quash appeal ground from which decree and not a final interlocutory was course, taken. appeal may be is properly true, the very is not from a final but appeal decree, an ap to permit of the Act of was such purpose 1925 might in order that peal question quash motion to determined. preliminarily Wholesale Com Empire Neither overruled.” Guzek 2d nor Fairchild Pa. 151 A. 470 (1959), pany, v. Bellanca Airplane Corporation Corpo Engine applicable 2d Pa. ration, (1958), here. Con- main point to the at
Turning issue, now provides: Article §2, of Pennsylvania, stitution from this nor Congress any member of State, “No appointment office or or holding exercising any person under the United shall at the profit or States, of trust exercise office in this any hold or State to time same perquisites attached. fees shall be salary, of- Assembly may by law declare what The General incompatible.” are fices legis- constitutional virtue of this
By provision, many to declare lature of fit has seen mentioned offices than federal and state offices (other enactment) in the of the constitutional first sentence offices in reference to the incompatible. This is so incom- to be here involved. are not declared They court the lower patible statute. any Regardless, au- of common has inherent pleas ruled that a court applica- incompatible declare thority by offices tion of It said: “While principles. common law declare legislature may provides incompatible this does not mean offices what power alone has the legislature authority In Com- incompatible. determine what offices are offices are either monwealth or under common law legislative reason enactment . . .” principles
This conclusion is not correct. If the courts legally was inherent at common enjoyed law, such Penn- abrogated Article completely XII, §2 In previ- Constitution. this Court has sylvania fact, ruled. ously so
In ex rel. Schermer v. Franek, A. at said: “Inasmuch has as the Constitution a method provided declaring what are incompatible, thereby announcing this State in courts regard public policy thereto, *4 are not to hold permitted incompatible merely offices the has even Legislature though because act, failed have held such other states may incompatible offices one the duties with where those of conflict this Legislature other. Commo'nwealth has in several instances certain determined to be offices it would be a transgression incompatible, to hold the this court Mayor and offices the Peace when the Legislature Justice of has not seen in act the matter.”1 This language fit clear unambiguous. See v. also, Duffy Cooke, 239 Pa. 1076 (1913).
It
is argued that
quoted
above
statement
Kepiiakt
speaking
was
unanimous court
not decisional and is mere dicta. We cannot
A
agree.
study
the record in that
issue
case discloses that
of the
therein
offices involved
and the court’s power to determine that
in the
question
absence
pertinent
legislative expression
squarely
was
raised and at issue in the
in
lower
proceedings both
court and in this Court. On
adjudi-
this Court
appeal,
cated that
issue even
it
though
appeal
quashed
on other grounds.
It was
em-
plainly
intricate
bodiment of the court’s
not
determination.
This is
“dicta”! Where a decision
on
more
rests
two or
grounds equally
none
be
valid,
relegated
inferior
status of obiter dictum:
v.
Manley
Manley,
Superior Ct.
164 A. 2d
More-
in the
over,
ensuing twenty-nine
years,
ruling
respect
has been consistently followed and recog-
nized
as the law
courts
lower
of the Commonwealth.
See, Commonwealth ex rel.
Storb v.
13 Pa. D. & C. 2d 175
Ressler,
(1957); Gregory
D. & C.
Johnson,
(1954) ; Commonwealth
ex rel.
Orban
75 Pa. D.
Berkey,
& C. 353 (1950);
Kurtz v.
60 Pa. D. &
and,
C.
Steinhart,
345 (1947).
the word
argued
“may” in the constitu-
tional
was used
provision, supra,
permissive
only
in itself,
sense and
indicates
this,
the legislature
the exclusive
possess
does
authority to determine
incompatible.
As
what
stated
before,
ex rel. Schermer v.
Franek,
supra,
the contrary.
decided to
Further,
was
similar
lan-
removed”)
another
(“may
section
guage
interpreted
been
has
as
“exclu-
meaning
supplied.
Emphasis
*5
Commonwealth
sively.”
McBride,
ex rel.
v.
See,
Kelley
329 Pa.
196 A.
the word
(1938).
while
Also,
per-
is
“may”
generally interpreted
to be used
missive
as
does
the same connotation
sense,
the word “shall” in
and under certain
certain contexts
circumstances.
See,
Pa., Dep’t
of
of
2d
Carland,
Welfare
It
is also
Court
entertained
argued
this
has
incompati-
in other instances
wherein
is
public
this
bility
offices was involved. While
single
not a
cited are
In
true,
inapposite.
cases
instance was the matter of common law
In
involved the
instances,
issue.
some
the cases
sen-
first
prohibition
constitutional
contained
others,
In
tence Article
of the Constitution.
XII, §2
public
facts
in office
aby
involved misconduct
not
here.
official. These cases are
controlling
in-
positions
the two
Finally,
may agree
individual and
volved should not be held
the same
this
public
while
factually
against
policy. However,
cir-
Court has the
under certain well defined
power
policy,
against
cumstances to determine what is
this
does not hold true in
instance because
“Judicial
as contra-
enactment.
power,
constitutional
no
of the
from the
has
power
laws,
distinguished
mere
law
Courts are
instruments
existence.
. .
Judicial
.
is never
nothing.
and can will
effect
will
purpose
giving
exercised
for the
always
purpose
giving
effect
of the Judge;
Legislature;
other
to the
or,
words,
to the will
Osborn
President,
the law.”
Directors
will
United States
(Chief
Bank
Company
6 L.
Wheaton
Ed. 204. The
Marshall),
complained
only
cured
situation
us
not for
to legislate
or by inter-
legislature.
matters
legislation
to add
legis-
pretation
See,
include.
fit
Altieri v.
saw
Allentown
lature
*6
Pa.
Retirement
368
Employees’
Board,
Officers’
Order reversed. The action
dismissed.
is
Concurring
Opinion
Bell:
Mr. Chief
undoubtedly
These
in
judgment,
two offices are, my
situations
incompatible
and there are
similar
many
can
Courts
which exist
throughout Pennsylvania.
a
take
if
on the ground
at
jurisdiction,
all,* only
thus
is
involved. The law
public
matter
is
policy
v. Major,
in
ex rel. McCreary
Commonwealth
expressed
(page
Court said
22 A. 2d
where the
Tbe I Richard reign in tbe as early In as England bolding from prohibited sheriff was tbe (1189-1199), Undoubtedly, in bis own county. justice office of tbe separa began offices as of certain incompatibility engrained then later became and concept power tion See matter of public policy. as a law common in our L.R. Oregon 28 332 Holding, Office Plural Conklin, ) L.R.A. 13 670 (1936), (1891), A.L.R. (1949 and L.R.A. 853 Here 216; L.R.A. 1917A Keeper in Commonwealth Pennsylvania, Sheriff 4 &S. R. County, Northumberland the Jail of Court observed “At tbe common Supreme tbe law, subordinate and with each other interfering been have considered incompatible. . . .” The common law doctrine is best forth in set Municipal McQuillin, §12.67 Corporations, (Supp. 1961) as follows: “The common prohibits law dual de- holding incompatible offices. Public policy that an mands office holder his duties with discharge undivided loyalty. The doctrine of incompatibility intended to performance ap- assure quality. of that Its plicability does not turn per- upon the integrity son concerned or im- his individual to achieve capacity for inquiries of partiality, that kind too subtle would be rewarding. The doctrine applies if inexorably offices come within no matter it, worthy how purpose officer’s his talent.” extraordinary Our is not to determine whether problem, however, under common-law the courts had the de- incompatible. determine offices we must Rather, common cide whether that law power abrogated was Article Constitution of XII, §2, placed solely general the hands of the assembly.
In support the conclusion that the courts questions no over incompatibility, on relies majority ex rel. Schermer v. *8 311 Pa. 166 Atl. Franck, we wherein (1933), contended that of “It the of stated: offices of Peace and a Mayor city incompatible. the are Arti 2 of the Constitution provides section the cle that Assembly may by law declare General what offices pointed have been We incompatible. to no statute of declares the office Justice of the Peace and Inasmuch incompatible. as the Mayor of method provided declaring has what offices are thereby public the announcing incompatible, policy in regard thereto, State per this courts are not incompatible hold offices mitted merely because the states other failed to even Legislature though has act, where incompatible may have held such offices Leg- duties of other. The one conflict with those of the islature of determined in sev- this Commonwealth has eral instances certain offices to be incompatible, court would be a of the of this transgression Peace hold the Mayor and Justice seen fit Legislature when the has not act in the matter.” this case
Although frequently has been cited several courts proposition lower courts that see, determine the incompatibility offices, D. Commonwealth ex rel. Storb v. e.g., Ressler, & & C. 2d 175 Pa. D. (1957); Johnson, Gregory C. 250 ex (1954); Commonwealth rel. Orban Berkey, 75 Pa. D. & C. and Kurts (1950); v. Steinhart, Pa. D. & C. 345 bind do not it as regard precedent. The actual ing of the case was holding private citizen cannot invoke the issuance of writ warranto quo special unless he has a interest than that of member controversy greater a mere public. Since the relator did not have such the court quashed appeal. interest, statement Kephart of Justice regarding incompatibility offices was not decisional and was an addition merely al observation the form of dicta. The problem was not incompatibility nor analyzed opinion, did the court discuss the or the history consid policy erations the doctrine. underlying is indicative court not cited the this has Sehermer any decision in case subsequent involving question incompati bility. impressed arewe with the
Eather, fact on occasions has several exercised jurisdiction court question raising over cases In Commonwealth office. ex rel. v. Snyder, (1929) Atl. 748 we stated: Pa. 555, “We have
251
probably necessarily
said—and
because of article
so
2 of
section
the state
stat
Constitution —that if a
incompatibility,
penalty
by
ute declares
it,
fixed
any,
always
[citing
if
will
be enforced:
cases].
If,
incompatibility
however, as
not determined
here,
is
solely by
but arises
statute,
reason
that
fact
the duties
the two
are such that it
would
against public
permit
policy
person
one
to hold both
then the incumbent
will
them,
elect which he
opinion
retain. . . .” The entire
tenure
jurisdic
court makes it clear that a court can assume
quo
alleged
tion
an action of
warranto where the
upon grounds
of offices
was based
public policy
statutory
rather than
Simi
declaration.
larly, in Commonwealth ex rel.
350
Adams v. Holleran,
Pa.
2d
39 A.
612
incom
461,
determined the
patibility
notwithstanding
of two offices
the fact
legislature
opin
did not act.
In the course of its
good public
the court stated that
ion,
“In
service a
perform
man cannot serve two masters or
the duties of
again giving recognition
different
once
offices,”
to the
Longstanding
incompati
regarding
common-law rule
bility.
McCreary
See also Commonwealth ex rel.
Major,
(1941);
22
A. 2d
355,
686
Packrall v.
(1958)
County
In ;
the courts under the Constitution provision Art. which similar contained §8, VI, in to the current constitutional section. pertinent part do not the in second regard “may”
We word ex sentence Art. section to be a sufficiently on the con plicit part indication of the constitutional courts were to be of their stripped vention time-honored incom jurisdiction concerning matters of general and that to exer patibility assembly was and exclusive in this “May” cise sole regard. in permissive normally employed Common sense, Department wealth Pennsylvania, Car Welfare land, 2d 14 does either mandatory or connote denote exclusive power. convention desired gen the constitutional Had sole should assembly this mat eral provided have so a much it would articu more ter, manner. late
To hold to the courts prohibit contrary from considering questions of would leave a void in of dual regulation office holding area of large public activity concerning has not legislature deprive seen fit and would act, important safeguard guaranteeing who integrity governmental offices and of those them. occupy
I affirm would the order the court below so that determine whether might judicially the two offices *11 held appellee were fact against public so it would be policy improper one to hold both. permit person joins Mr. Justice O’Brien opin- dissenting ion. Shapiro Appellant,
Tax Review D. v. H. Board, Company.