62 A.2d 30 | Pa. | 1948
Proceedings, by due complaint, to remove W. Frank Marshall, the appellant, from the position of Receiver of Taxes of Philadelphia were instituted by twenty-two electors of the City of Philadelphia under Section 9 of Article IV of the Act of June 25, 1919, P. L. 581, which *306 provides a means of removing from office municipal officers for any corrupt act or practice. Appellant, contending that the Receiver of Taxes is a county officer, filed preliminary objections to the complaint on the ground, inter alia, that he could be impeached only by the legislature of the Commonwealth, as provided for by Section 4 of Article 6 of the Constitution of 1874. The Court below dismissed appellant's preliminary objections. This appeal followed.
Appellant denies that the Receiver of Taxes is a municipal officer and, as such, subject to the provisions of the Act under which these proceedings were instituted. The office of Receiver of Taxes was created by the Act of February 2, 1854, P. L. 21, Sec. 11 (53 PS Sec. 4831) entitled "A Further Supplement to an Act Entitled 'An Act to Incorporate the City of Philadelphia' ", under which he was made the city official to collect taxes. The history of the office of Receiver of Taxes indicates that he is a city and not a county official. Before the passage of the Act of 1854 taxes were collected by appointees of municipal officials or groups. The position was continued in Article V of the Act of 1885, P. L. 37 which was entitled "To Provide for the Better Government of Cities of the First Class in this Commonwealth", and now exists by virtue of Article XV of the City Charter Act of 1919. The three separate statutes which provide for the office of Receiver of Taxes have dealt with city government exclusively.
In support of his contention that he is a county and not a municipal officer appellant argues that the City of Philadelphia is coextensive with the County of Philadelphia, that the Receiver's jurisdiction is county-wide, and therefore, he is a county officer. He further submits that he is charged by statute with the duty of collecting taxes due the county, as well as the city, and also taxes due the school district. InHadley's Case,
Although the office of Receiver of Taxes was in existence prior to the Constitution of 1874, the Constitution does not designate the Receiver of Taxes as a county office. Article XIV, Section 1 of the Constitution provides: "County officers shall consist of sheriffs, coroners, prothonotaries, registers of wills, recorders of deeds, commissioners, treasurers, surveyors, auditors or controllers, clerks of the courts, district attorneys, and such others as may from time to time be established by law. . . ." Moreover, again in the Enabling Act of 1876, P. L. 13, § 17, which provides "In all cases where a city containing over 300,000 inhabitants is co-extensive in boundaries with the county, all of the officers known therein as city treasurer, city controller, city commissioners, shall severally be regarded as county officers . . .", the office of Receiver of Taxes is omitted.
The appellant further argues that since the office of Receiver of Taxes was in existence prior to the Constitution, the incumbent can be removed only under the procedure prescribed by statute in effect at the time the Constitution was adopted or under the provisions of Section 4 of Article VI of the Constitution which provides: "All officers shall hold their offices on the condition that they behave themselves well while in office, and shall be removed on conviction of misbehavior in office or of any infamous crime. Appointed officers, other than judges of the courts of record and the Superintendent of Public Instruction, may be removed at the pleasure of the power by which they shall have been appointed. All officers elected by the people, except Governor, Lieutenant Governor, members of the General Assembly and judges of the courts of record learned in the law, shall be removed by the Governor for reasonable *308
cause after due notice and full hearing, on the address of two-thirds of the Senate." Appellant relies upon theGeorges Township School Directors Case,
The situation in the instant case is similar to that in theGeorges Township Case. The method of removing the Receiver of Taxes from office was provided for in Section 45 of the Act of 1854, supra, as follows: "All officers elected by the qualified voters under this act, shall be subject to removal from office on impeachment for misdemeanor in office, or other sufficient cause, on charges to be preferred by the common council, and tried by the select council, in manner prescribed by the constitution and laws of this Commonwealth, as to the impeachment by the House of Representatives, and trial thereof by the Senate; all other officers shall be subject to removal for sufficient cause, in such manner as councils may determine." Such procedure is substantially similar to the procedure set up in the City Charter Act of 1919. The Act of 1919 designates City Council, which *309 corresponds to the old Select Council, as the tribunal to try the impeachment. The charges are preferred by due complaint of twenty qualified electors, rather than by the Common Council, with the further provision that the matter will never reach City Council for trial unless a court is satisfied that reasonable ground exists for the complaint and unless a committee of five competent and reputable citizens after investigating the charges in the complaint finds the charge well founded. The court, speaking through Justice SADLER, in the Georges Township Case, stated "[If] the earlier legislation furnished a different manner of procedure in such cases, and it, or modifying acts of assembly passed since 1873, will still be effective, unless the attempt is made to depart from the provisions as then existing." The court also cited the following from White on the Constitution, page 21: " 'Subsequent constitutions have never been construed as abolishing old systems and establishing new, but rather in the light of amendments of existing law. This being so, the Constitution is not to be construed as an abrogation of existing laws, unless the intent is too clear to be mistaken, but, like amendments to the statute law, is deemed to be operative only for the future.' "
The law which defines the method of removing public officers, whether those officers were created by the Constitution or by statute, has been clearly set forth in various opinions of this Court. First, in Bowman's Case,
Second, in Georges Township School Directors Case, supra, we held that if an office has been provided for by the Constitution but a method of removal different from the constitutional method was in effect prior to the adoption of the Constitution, such other method may still *310 be followed in addition to the method contained in the Constitution.
Third, in Commonwealth ex rel. Vesneski v. Reid et al.,
Fourth, in Milford Township Supervisors' Removal Case,
In Weiss v. Ziegler et al.,
The present proceedings have merely reached the stage where the court directed the accused to appear and answer.* The order dismissing the preliminary objections and directing the respondent to file an answer is affirmed.
(1) Complaint in writing to a court of common pleas by not less than twenty qualified electors of the city.
(2) If reasonable ground appears to the court, the court directs the filing of the complaint of record and directs the accused to appear and answer.
(3) If sufficient cause is shown, the court appoints five competent and reputable citizens to investigate the charges.
(4) If at least a majority of the committee finds any charge well founded, the whole record is certified to City Council and a copy of the specifications served on the accused.
(5) City Council assembles as a court of impeachment. The president judge of the court of common pleas presides at the trial.
(6) If Council finds the accused guilty, judgment is entered accordingly and the court declares the office vacant.