Commonwealth v. Oellers

140 Pa. 457 | Pa. | 1891

Lead Opinion

Opinion,

Mr. Chief Justice Paxson:

The commonwealth, through her attorney general, demands to know by what authority the defendant, Richard G. Oellers, claims to hold the office of county treasurer, designated as city treasurer, of Philadelphia, and to exercise the functions thereof.

It appears by the defendant’s plea that he claims title to said office by virtue of his election thereto by a viva-voce vote of the councils of said city, at a joint meeting thereof, on May 28, 1891, to fill a vacancy occasioned by the resignation of Jolm Bardsley. It is contended by the attorney general that, by the constitution and laws of this commonwealth, it was the duty of the governor to appoint a suitable person to fill such vacancy, and that, in the performance of that duty, he had appointed William Redwood Wright as such suitable person. We have thus the issue, sharply defined, whether the power to fill the vacancy in question is lodged in the city councils or in the governor.

If this were a new question, or one involving a new principle, we might feel it necessary to discuss it at some length. As, however, it is a mere threshing of old straw, an elaboration of it is not requisite. Every question now presented was raised and decided in Taggart v. Commonwealth, 102 Pa. 354. It is true, that contention was over the office of controller, while this is over the office of treasurer; but this makes no essential difference, as the same law applies to each. Both offices have been changed by § 1, article XIV. of the constitution, and by tiie act of March 31, 1876, P. L. 13, from a mere city or municipal office, which the legislature may destroy at will, to a county office, resting upon the organic law, and beyond the power of the legislature to abolish. We do not propose to re-open the discussion of the case upon this point. Taggart’s case was carefully considered and properly decided. We were aided by a very clear and able opinion by the late Judge Ludlow, who decided that case below, and subsequent reflection has but confirmed us in the correctness of that decision. It is not needed, therefore, to discuss this point again. It is sufficient to say, that, for the purposes of this case, we must regard the office designated as city treasurer, as a county and not a city office. The treasurer, by whatever name he may be called, is a county officer, exercising his functions over the entire territory of the city of Philadelphia, which is coextensive with that of the county, just as the sheriff, recorder of deeds, and other county officers exercise their functions over the same territory.

Assuming then, as we are bound to do, that the treasurer is a county officer, we come directly to the only question in the case, in whom is the authority lodged to fill a vacancy in said office ?

The law is not even doubtful upon this point. It is declared by § 2 of article XIV. of the constitution, that “ all vacancies, not otherwise provided for, shall be filled in such manner as may be provided by law.” The law which provides for the filling of such vacancies is the act of May 15, 1874, P. L. 205, which declares: “ That in case of a vacancy, happening by death, resignation or otherwise, in any office created by the constitution or laws of this commonwealth, and where provision is not already made by said constitution and laws to fill said vacancy, it shall be the duty of the governor to appoint a suitable person to fill such office,” etc.

Just here the point comes in which the defendant contends distinguishes this from Taggart’s case. His allegation is that the governor cannot fill this vacancy, because another mode of doing so is provided by the constitution and laws; and he points us to the tenth section of the act of February 2, 1854 (consolidation act), P. L. 21, which provides, inter alia, that “ any vacancy in said office (city treasurer) shall be filled by the city councils, by viva-voce vote in joint meeting.” This very point was made in Taggart’s case. It was raised by the pleadings, argued by counsel, and decided by the court. It is true, no reference was made to it in the opinion of Chief Justice Merche. It was fully discussed in the court below, and the case having been decided here upon the broad ground that the controller was a county officer, the point in question became of no practical importance. It»is too plain for argument that city councils cannot fill a vacancy in a county office. They might as well attempt to fill a vacancy in the office of sheriff. In view, however, of the peculiar circumstances ■ of this case, and the zeal with which this point has been again pressed upon us by the able counsel representing the defendant, a brief reference to it may not be inappropriate.

As before observed, the tenth section of the act of 1854 provided for the filling of a vacancy in the office of city treasurer by a viva-voce vote of city councils. The forty-sixth section of said act contains the further provision that:

“ Whenever any elective officer of said city shall die, or become incapable of fulfilling the duties of his office, his place, except where other provision is made for filling the vacancy, shall be filled by a joint vote of city councils, until the next city election and the qualification of the successor in office: Provided, That such vacancy shall exist at least thirty days before the next city election, otherwise such vacancy shall be filled at the next election thereafter.”

The controller was “an elective officer of said city,” and came directly within this provision. A vacancy in his office was as fully provided for in the act of 1854 as was a vacancy in the office of treasurer. It was contended in Taggart’s case, just as it was in this, that because of such provision, the governor had no power to fill the vacancy. We had precisely the same arguments then that we have now.

It will be observed that the tenth section of the act of 1854 does not fix the term during which a treasurer elected by councils to fill a vacancy shall hold said office. It was contended that, as the term was not designated, he would be entitled to hold for the balance of the unexpired term, whatever that may be. This position cannot be sustained. It is in direct conflict with our whole system and policy in filling vacancies. In all our legislation upon this subject, it is plain to see that in filling vacancies in elective offices the policy of the law has uniformly been to return to the people, as soon as reasonably practicable, the election of a successor. Hence, in nearly if not quite all elective offices from the governor down, if a vacancy occurs more than three calendar months prior to the next election, it can only be filled until said election and the qualification of the successor. That a departure from this rule was not intended by the tenth section of the act of 1854, is manifest by an examination of the forty-sixth section thereof, which, as before observed, provides that vacancies in all elective offices of said city shall be filled only until the next city election. The tenth and the forty-sixth sections of the act of 1854 must be construed together. They are a part of the same act and the same system. Thus considered, we find that in case of a vacancy in the office of treasurer, his successor is to be elected by a viva-voce vote of councils, while in the case of every other elective officer the vacancy shall be filled by a joint vote of city councils ; in both cases the person so elected shall hold until “the next city election.” It follows, necessarily, that if the election by councils in this case has the authority of law, the defendant would hold the office until the next city election in February, 1892 (except for the accident that his term expires in January next), at which time it would not be possible to elect his successor. Being a county officer, his election can only take place at the general election, and this has been the uniform practice under the constitution and the act of 1876. The next election for county treasurer will be held in November next, and the term of the person then elected will commence on the first Monday of the following January. This would be several weeks prior to the expiration of defendant’s term -under his election by councils, except for the accident above stated. The principle contended for would go to this extent.

This incongruous, if not absurd result would necessarily follow any attempt to force the constitution into harmony with legislation existing at the time of its adoption.

It is proper to^say, in justice to the learned judges of the court below, that their judgment was practically pro forma and entered for the sole purpose of sending the case up for an early decision. Under the circumstances, we decided to hear and dispose of it in that shape at the earnest request of both parties.

The judgment is reversed and judgment is now entered for the commonwealth upon the demurrer. It is further considered and adjudged by the court that the defendant, Richard G. Oellers, be, and he hereby is ousted from the office of county treasurer, designated as city treasurer, of Philadelphia, and from the fees and emoluments thereof.

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Dissenting Opinion

Dissenting,

Mr. Justice Williams:

There is no public question involved in this case. It is a struggle between rival appointees for a few months’ possession of an office that is to be filled by the voters of Philadelphia at the next election. No personal objection is made to either. On the other hand, it is freely conceded that both are men of ability, experience, and personal integrity; so that, whichever of them may succeed, the funds of the city and the interests of the taxpayers will be secure. This case has, nevertheless, a remarkable history. The suggestion of the attorney general was filed in the court below on the second day of this present month. On the same day, a writ of quo warranto issued and was served. On the same day, a demurrer was filed, overruled and judgment entered. On the same day, a certiorari issued from this court, and the record was removed. Paper-books were prepared on the third. On the fourth, in the last hours of the session for the Middle District, the case was fully heard. Now, on the' twelfth, this court is re-convened in adjourned session for the-sole purpose of entering a final judgment. Any other case on the calendar has an equal claim to consideration and to prompt decision.

The question is raised upon the following facts: By the consolidation act of 1854, the limits of the city of Philadelphia were extended so as to include the entire county. In the merger and consolidation of the several local governments previously existing, the office of county treasurer was, among others, abolished, and most of its duties transferred to the city treasurer. Since 1854, the office of county treasurer has not been restored by any distinct legislative enactment; nor has that of city treasurer been abolished’, or its duties diminished or modified. No person has been elected to an office styled county treasurer, in the county of Philadelphia, for nearly forty years. A person has been regularly elected and commissioned as city treasurer during ah that time. The last person so elected and commissioned was John Bardsley. He gave bonds as city treasurer, and entered upon the duties of the office, which had been very clearly and distinctly defined by the recent legislation ■ known as the Bullitt Bill, or new city charter. On the thirtieth of May last he sent his resignation to the city government.^* It was accepted by the 'councils, and a person was appointed to fill the vacancy so made, who has qualified and entered upon the duties of the office. The governor has also appointed a person to the same vacancy, claiming that the office is not that of city treasurer, but that of county treasurer.

If the office is a city office, then it is admitted that the power to appoint resides in the councils. Our question then is, what kind of a treasuryship did John Bardsley hold ? Hid he hold the office of city treasurer, which is unquestionably an existing office and to which he was elected and commissioned, or did he hold the office of county treasurer, which was abolished in 1854 and to which he was neither elected nor commissioned? The latter branch of the alternative is affirmed, and the position rests on two considerations :

1. The constitution in enumerating county officers names a county treasurer as one.

2. The act of 1876 declares that in cities of the first class, the office of city treasurer shall for certain purposes “ be regarded as ” a county officer.

As to the first of these, it is only necessary to say that, at the adoption of the constitution, the office of county treasurer in Philadelphia had been abolished. If, as we have repeatedly held is not the case, such constitutional provisions are self-enforcing, it is nevertheless true that in this city this one has not been obeyed by the election of such an officer, and I cannot understand by what modification of the cy pres doctrine the state can seize and appropriate that city office whose functions most nearly resemble those of the vacant county office.

As to the second, the answer seems to me equally plain. The act of 1876 relates to existing county officers in large counties having a population of one hundred and fifty thousand or more. Its title declares its object and scope fully. It is “ to carry into effect § 5 of article XIV. of the constitution, relative to salaries of county officers.” To do this, it requires such officers to pay over the fees collected by them to the state or county, as the case may be, and provides, in lieu thereof, a fixed salary as compensation for their services. That of county treasurer in the counties affected is fixed at ten thousand dollars per annum. But there was one county in the state whose boundaries were at the same time the boundaries of a city including exactly the same territory. In this county the legislature knew that there was no county treasurer, but that the same functions were exercised by the city treasurer. They did not intend to leave the old system of fees to survive in the city whose lines were co-incident with those of the county, any more than it would have survived in the county. Accordingly, the seventeenth section of the act of 1876 makes a special provision for cities whose lines include an entire county, and declares that in such cities “ all the officers known therein as city treasurer, city controller, city commissioners, shall severally be regarded as county officers,” and as such have the same salary, and pay over fees collected by them, in the same manner “ as if they had been elected or appointed as county officers and had been designated as such.” In other words, the city officers enumerated shall, for the purpose of fixing Their salaries and requiring them to pay over fees collected by them, be regarded as county officers, so as to be included in the operation of the act as fully as if they “ had been elected ” and “ been designated ” as county officers. This does not profess to change the character, powers, or designation of those officers, or the manner of their election or appointment. It changes only their compensation, and the manner in which it is received by them. This it does by extending the law relating to county officers so as to include them in the same manner as if they had been elected and designated as county officers, instead of having been, as the fact was, elected and designated as city officers. The title of the act gives no hint of any other purpose., If its provisions would, by any fair interpretation, abolish the office of city treasurer, or revive that of county treasurer, or change the mode of election or appointment of the city treasurer, it would be to that extent clearly unconstitutional, because no such purpose is expressed by or included in the title. If John Bardsley held a county office he holds it still. He has resigned only the treasurership of the city, and this he has surrendered to the only body having power to fill the vacancy.

My own conclusions may be formulated thus:

1. The office of city treasurer is an existing office in the city of Philadelphia. Its existence is shown and its powers are defined by several acts of assembly, beginning with the consolidation act and including the new charter of 1885.

2. The office of county treasurer is not an existing office in Philadelphia county. It was abolished in 1854, and has never been restored or treated as surviving for any purpose whatever.

3. Both these propositions are assumed by the act of 1876, and are the basis on which its provisions rest. It treats the city treasurer for one purpose only as though he was a county officer, and distinctly recognizes the fact that for other purposes he is not one.

4. The vacancy occasioned by the resignation of the office of city treasurer by John Bardsley is properly filled by the appointment of the respondent by the city councils.

For these reasons, I would affirm the judgment of the court below. In so doing, the authority of Taggart v. Commonwealth, 102 Pa. 354, is not disturbed. In that case, there was no specific provision in the act of 1854 for filling a vacancy in the office of city controller, and the case is therefore distinguishable from this.

* Bardsley’s resignation, was transmitted on May 21st, to take effect on May 30th.; it was accepted by councils on May 28tb.

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Dissenting Opinion

Dissenting,

Mr. Justice Mitchell:

The authority of the governor to fill a vacancy in the office of treasurer of Philadelphia rests solely upon the act of May 15, 1874, P. L. 205. If not found therein, it is admitted that it does not exist. That act provides for an appointment by the governor in case of a vacancy in any office created by the constitution or laws of the commonwealth, “ where provision is not already made by said constitution and laws to fill said vacancy.” Hence, if there is any existing provision for filling the vacancy, the governor obtains no power to do so by the act of 1874.

The office of city treasurer of Philadelphia, as it has in substance existed since 1854, was created by the consolidation act of February 2,1854, P. L. 21. That act prescribes the mode of his election, his bond and oath of office, his duties, powers and liabilities. The office as it exists to-day is defined and regulated by the city charter under the act of June 1, 1885, P. L. 37, popularly known as the Bullitt Bill. Under this act the office is a department of the city government of which the city treasurer is the head, and the act provides that “ he shall be elected and give security,” and his duties shall remain “ as now provided by law; ” that is, as already seen, by the act of 1854. It is not claimed by any one that the constitution, or any other statute than those cited, makes any express provision for the definition, limitation or regulation of the office. Turning, then, to the act of 1854, we find that the case of a vacancy is fully, exactly and specifically provided for in § 10, by which “ any vacancy in said office shall be filled by the city councils, by viva-voce vote in joint meeting.” There is no doubt or ambiguity about this provision, nor is there any pretence that any subsequent act has, in express terms, repealed or supplied it. Why, then, is it not a sufficient “ provision already made ” by the law, to exclude the only power given to the governor by the act of 1874?

It is said that the office has been made a county office by the constitution, § 1 of article XIV., which declares that “ county officers shall consist of sheriffs, .... treasurers,” etc. It is argued by appellee that this clause worked no change in the position of the city treasurer, inasmuch as there were, in all the counties except Philadelphia, treasurers who unquestionably were county officers to whom this provision would apply, and the constitution, while aiming at an unbending cast-iron uniformity in many things in which the people had hitherto been free to consult their own diversities of situation and interest, nevertheless did not intend to affect existing local and special laws, except in cases expressly named. And such has been the uniform construction by this court. If the present question were open I should deem this the sound view, but I am constrained by the case of Taggart v. Commonwealth, 102 Pa. 354, to consider the question closed. By that decision, from the authority of which I do not desire in any way to derogate, though I think it was wrongly decided, it was settled that the section of the constitution cited made the officers named therein county officers, though they retained their titles of city controller, city treasurer, etc. But this of itself does not advance the argument a single step. The change of position from a city to a county office is a mere change of schedule, so to speak; a change from one class to another, not necessarily involving any change in the office itself. To determine the effect of the change in this respect, we must look at matters of substance, at the mode of election, the powers and the duties of the officer, by whatever name he may be called. And when we so look we find nothing. By the wording of the constitution the electtion for a county officer was put in November, while that for a‘ city officer is in February. But the constituency which elects, and the functions of the officer when elected, remain the same. As already shown, these were and are, before the constitution of 1874 and since, established, defined and regulated by the acts of 1854 and 1885. The constitution did not repeal the act of 1854, nor in any way affect § 10, except by making the treasurer elected under it a county instead of a city officer, a change which in no wise affected any matter of substance in regard to him or his office. The distinction between the county of Philadelphia and the city of Philadelphia is, from any point of view, of the most technical and shadowy kind, and, with regard to this particular office, it has no existence except in theory. The county has no taxes, no taxpayers, no treasury and no treasurer, which are not the taxes, taxpayers, treasury and treasurer of the city. It suited the doctrinaire tendency of the constitutional convention to make the office one of the county list for tlio sake of nominal uniformity, but the change in no manner affected the practical substance of the office or the officer, and so clear has this been to all eyes, that no change has been made even in his title. He is still, under the constitution as under the act of 1854, legally known as the city treasurer, and under that title, county officer though he be, that act prescribes the scope of his office, its powers, duties and liabilities, and expressly and specifically the mode in which a vacancy shall be filled. He has been transferred from one class to another, but in all other respects he and his office are unchanged.

A strenuous effort was made on behalf of appellant to get away from this conclusion by harping on the forty-sixth section of the same act, and the decision of this court in Taggart v. Commonwealth, supra. But that section has no application to this case. The act provided for the election, duties, etc., of seven principal executive officers of the city, viz., mayor, marshal of police, city treasurer, receiver of taxes, controller, commissioners, and solicitor. Section 7 provides, in case of a vacancy in the office of mayor, that councils shall forthwith, in joint meeting, elect viva voce a qualified person to serve, etc. Section 10, as already discussed, provides expressly for filling a vacancy in the office of treasurer. No specific provision is made as to the other five principal officers; they are lumped together as elective officers of the city in § 46, and the method of filling the vacancies is not the same as in the case of the treasurer, though also by the councils. This part of the section, in its very terms, is excepted from application “ where other provision is made for filling the vacancy,” and has no relevancy to the mayor or the treasurer. It might have been repealed at any time without in any way affecting the mode of filling a vacancy in either of those offices. Herein is the essentia] and very obvious distinction between the present case and Taggart v. Commonwealth.

In that case the office in question was the city controllership, as to which there was no specific provision for a vacancy. It could be filled by councils only as a city office, under the general terms of § 46, and hence that case, by a very narrow construction, which disregarded the substance of the law and stuck in the very outside of the bark, hold that when it theoretically ceased to be a city office it was taken out of the terms of the act of 1854, and, there being no other law regulating the vacancy, the appointment went to the Governor under the act of 1874. Section 46 continued in force notwithstanding the constitution, and its application to the case of an admitted city office is not disputed. All that Taggart’s case decided was, that the city controller was not within its terms. But, as to the citj'- treasurer, § 10 of the act of 1854, also still in force, provides specifically for the filling of a vacancy. The act of 1874, therefore, by its own terms, has no application.

There remains only to be noticed the act of March 31, 1876, P. L. 13, which, it is argued, makes the city treasurer a county officer. This may be very briefly dismissed. First, I have endeavored to show that the mere nominal change from a city to a county office, while the whole scope and functions of the office continue unchanged under the old law, does not in any degree abrogate the specific provision of that law for filling a vacancy. If this is so, in the case of a change by the clause of the constitution, a fortiori it is so in the case of a statute. But secondly, the act does not make any such change. The title and the body of it are alike limited to the subject of fees and salary under § 5 of article XIY. of the constitution; and § 17 of the act, which applies to Philadelphia, does not provide that the city treasurer, etc., shall be county officers, but that they shall “ be regarded as county officers ” for the purposes of the act, to wit: shall be salaried and pay their fees into the public treasury. The act has no wider scope, and therefore no application to this case. Thirdly, even if the act could he regarded as having a broader effect and as changing the treasurer from a city to a county officer, .and waiving the question of constitutionality which would be raised in that view, such effect would be repealed by the act of 1885, already cited, which clearly makes him the head of a city department. Of course, if he is made a county officer by the constitution, the act of 1885 cannot turn him back into a city officer, but the argument from the constitution must stand by itself. It cannot get any aid from the act of 1876, because that act, if it meant to make such a change, is clearly repealed by the later act of 1885, on the same subject. The fact is, as already discussed, the change was a merely nominal one, which had no effect on the previously existing law, and neither the constitution, the act of 1876, nor the act of 1885, ever contemplated it in any other light.

For these reasons 1 would affirm the judgment.

Since writing the foregoing I have had the opportunity of hearing the opinion of my Brother Williams, and I concur in what he has said, except that I concede somewhat more weight to the decision in Taggart v. Commonwealth, as settling tlio construction that the constitution made the treasurer a county officer. That is the only difference in our views upon this case.

Mr. Justice Green:

I concur in dissenting from the opinion of the majority of the Court.