387 Pa. 506 | Pa. | 1957
Opinion
The judgment is affirmed on the following excerpts from the able opinion of Judge Neely :
“This quo warranto proceeding was instituted by the Attorney General to oust the defendant from the office of City Treasurer of Philadelphia. The complaint filed April 28, 1954, alleges that the defendant illegally holds that office, because at a municipal election held in Philadelphia on November 3, 1953, Francis D. Pastorius, the Republican Party’s candidate for the office of City Treasurer, received the highest number of votes and was duly elected for a four year term beginning January 4, 1954.
“The defendant’s answer filed June 26, 1954, avers that he is the legal incumbent of the office of City Treasurer by virtue of an appointment dated December 28,1953, made by the Director of Finance and approved by the Mayor of the City of Philadelphia; that these officers were authorized to effect this appointment by an ordinance of the Council of the City of Philadelphia dated October 16,1953, which made the City Treasurer an appointive instead of an elective office. This change by ordinance in the office of City Treasurer from an elective to an appointive office was made shortly before the municipal election, and the appointment of the defendant was just prior to the beginning of the new term for which the plaintiff claims he was elected. . . . The validity of the City Ordinance is in dispute.
“Because of the prospective change in the State Administration which bring into office a new Attorney General, Francis D. Pastorius sought to intervene as party plaintiff in. order that he might, prosecute this action in his. own behalf. The petition for intervention was filed on December 9, 1954, and intervention was allowed on December 21, 1954. The facts in this ease
“This case was listed for trial by the intervening plaintiff at our Commonwealth Court held on October 11, 1955. At this trial the present Attorney General, who was the successor to the officer who instituted the suit, through his deputy stated in open court that he did not desire to prosecute this action further. He did not, however, withdraw his name of record, it having then been represented to the Court that the Attorney General desired to see justice done. In effect, we understand the position of the present Attorney General to be that he would take no further action in this matter, nor would he further prosecute the case in any respect.
“The intervening plaintiff representing himself then took over, introducing into the record certain facts. He called and examined his own witnesses. . . .
“The facts developed at the trial show that the intervening plaintiff was the candidate for the office of City Treasurer on the Republican ticket, and that at the said municipal election he received 291,628 votes and his opponent 274,722 votes. The said intervening plaintiff had previously been appointed by Governor Fine to fill the term expiring January 4, 1954, and thus was the candidate at the municipal election to succeed himself.
“The intervening plaintiff obtained a memorandum from two members of the Board of Elections in Philadelphia to the effect that at the said municipal election he had received a majority of the votes cast for the offiee of City Treasurer, but he did not receive an election certificate. In possession of this memorandum,
“Article XIY, Section 1, of our - State Constitution, designated the Treasurer as a county officer. By the City-County Consolidation Amendment, adopted at the election of November 6, 1951, adding Section 8 to Article XIY of our Constitution, all county offices in Philadelphia, including the office of County Treasurer, were abolished, and it was provided that all county officers should thereupon become officers of the City of Philadelphia. And until the General Assembly should (otherwise provide,’ it was stated in the Amendment that these officers should continue to perform their duties and be elected, appointed, compensated and organized in the manner provided by our Constitution and the laws of the Commonwealth in effect at the time of the effective date of the amendment, with the proviso, however, that such officers serving on that effective date should be permitted to complete their terms of office.
“Article XY, Section 1, of the Constitution gave the right and power to cities to adopt their own charters and to exercise the powers of local self-government, subject to restrictions and regulations imposed by the Legislature, it being further provided that laws might be enacted affecting the organization of city government which should become effective when approved by a majority vote of the electors. In pursuance of Article XY, Section 1, the Legislature enacted the First Class
“. . . It was provided in said Act last mentioned that the charter thus adopted might provide for a system of municipal government and the exercise of municipal functions to the full extent that the General Assembly might legislate in reference thereto. It was provided also that a city of the first class might enact ordinances and regulations necessary and proper for carrying into execution these powers and all other powers vested in the city by the charter which it adopted. . . .
“It was held in Lennox v. Clark, 372 Pa. 355 (1953) that the City-County Consolidation Amendment, Article XIV, Section 8 of the Constitution, which provides that ‘In Philadelphia all county offices are hereby abolished, and the city shall henceforth perform all functions of county government within its area through officers selected in such manner as may be provided by law’, is self-executing. Under this constitutional amendment, it is provided that the functions of the county officers should thereafter be carried on as officers of the City of Philadelphia ‘until the General Assembly shall otherwise provide.’
“The Legislature, by the Act of August 26, 1953, P. L. 1476, 53 P.S. 3422, et seq., also did ‘otherwise provide’. Section 2 (a) of this Act confers upon the Council of the City of Philadelphia ‘full powers to legislate with respect to the election, appointment, compensa
“The Council of the City of Philadelphia, by ordinance of October 16, 1953, changed the office of City Treasurer, inter alia, from an elective to an appointive office. It is not difficult to surmise the reason for this change, which undoubtedly worked a hardship upon the intervening plaintiff. He had in good faith made a campaign for election and was the choice of the electorate. We are, however, bound by the provisions of the applicable law, regardless of the sympathy we have for the position of the intervening plaintiff.
“The intervening plaintiff contends that Section 2 of the Act of 1953, supra, amounted to an improper delegation of power to the Council of the City of Philadelphia to change the office of City Treasurer from an elective to an appointive office. The intervening plaintiff contends that only by Act of Assembly could that change have been made, pursuant to the Constitutional Amendment, Section 8, Article XIV, supra. It seems to us, however, that to adopt this contention would be to fly directly in the teeth of Article XV,. Section 1, of our Constitution, which provides that: ‘. . . Cities, or cities of any particular class, may be given the right and power to frame and: adopt their own charters and to exercise the powers and authority of local self-government, subject, however, to such restrictions, limitations, and regulations, as may be imposed by the Legislature. . . .’ By this section of the
“The authority of the Legislature to confer upon the City of Philadelphia the power to adopt a charter, and the authority of the Legislature to confer upon the Council of the City of Philadelphia the right to exercise powers of local self-government by making elective offices appointive, both emanate from the same sections of the Constitution, namely, Article XV, Section 1, and from Article XIV, Section 8 as well. By Section 2 of the Act of 1953, supra, the Legislature did no more than carry out their legislative prerogative by specifying the manner in which the powers and authority of local self-government should be exercised with respect to the office of City Treasurer and the other offices enumerated in that Act.
“In Commonwealth ex rel. Truscott v. Philadelphia, 380 Pa. 367 (1955), Mr. Justice Bell, who delivered the majority opinion of the Court, said at page 378: . . The Act (of 1953) then specifically authorized City Council “to legislate with respect to the election, appointment, compensation, organization, abolition . . . powers, functions and duties of the Coroner, Recorder of Deeds, City Treasurer, Clerk of the Court . . . and the Board of Inspectors of the Philadelphia County Prison. . . .” Under and pursuant to that Act of the General Assembly, City Council has abolished and reorganized all of the aforesaid offices except clerk of
“. . . the intervening plaintiff is not entitled to have this Court enter a judgment ousting the defendant from
Order
“And now, April 30,1956, the prayer of the plaintiff and the intervening plaintiff for relief is denied; the complaint and the proceeding in intervention are dismissed; and judgment is herein entered for the defendant.”
