Marshall Impeachment Case
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- Opinion Per Curiam
The reasons given in and for the motion are: 1. The Act is too vague, indefinite and uncertain to be operative
For a proper understanding of the questions presented for determination by the accused‘s motion, it is deemed essential to refer to the stages prescribed in Section 9 of Article IV of the Act of 1919, supra, through which the proceeding has progressed until it is now before the Council of the City of Philadelphia, as a court of impeachment, for trial, the steps taken by the accused in opposition thereto, and the effect of the decisions of the Supreme Court and the Court of Common Pleas.
Complaint in writing was made to the Court of Common Pleas No. 4 of Philadelphia by twenty-two qualified electors of the city, charging the accused with various offenses, setting forth the facts on which the charges were founded, supported by the oaths of five of the complainants according to the best of their knowledge, information, and belief, and, there appearing in the judgment of the court to be reasonable ground for such proceeding, the court directed the complaint to be filed of record, and granted a rule upon the accused to appear
It seems only just that all objections to the constitutionality of Section 9 of Article IV of the Act of 1919,
After the record was remitted by the Supreme Court, the common pleas again made the rule to appear and answer returnable on a day certain. The accused filed his answer, which contained in detail denials of some and qualified admissions of other of the charges. Upon consideration of the complaint and the answer, the court found sufficient cause for further proceedings, in that, the necessity for ascertaining facts put in issue by the answer to the complaint by means of evidence required the continuation of the proceeding, and appointed a
During the committee‘s investigation of the charges, and after considerable evidence had been received, including the testimony of complainants, the accused by his attorneys filed a petition for a rule upon complainants to show cause why the proceedings should not be quashed and the complaint dismissed, “in view of the fact that none of the persons who signed the Complaint took affidavit in support thereof had the kind of knowledge, information or belief required by law but based their action solely on remote hearsay and newspaper reports.” Upon consideration of the testimony of complainants before the committee on which the petition was based, the language of Section 9 (b) of Article IV of the Act,
Following the investigation that extended over five months, and included, inter alia, numerous open hearings (at which the testimony taken amounted to upwards of eighteen hundred typewritten pages and approximately seventy-five exhibits were received), the committee made its written report to the court of the facts found by it. The magnitude of the undertaking made it impossible for the committee to complete its task within three weeks after its appointment, and on its application
The committee‘s report (consisting of one hundred and four typewritten pages) is an admirable exposition of the manner in which the accused managed the office of Receiver of Taxes, but, as it is not subject to the court‘s approval or disapproval, comments on its contents by the court are not considered to be necessary at this time. Certain of the charges made in the complaint were found by the committee to be well founded and others not to be so. The specifications of the charges against the accused contained therein are, succinctly, that, as Receiver of Taxes, he failed to collect the real estate taxes, the wage and income taxes, the amusement taxes, the parking lot taxes, and the water rents due to the City of Philadelphia, and to make proper efforts to collect the same; he improperly supervised the employees of his office; he failed to keep proper books and records; and he “mismanaged the office to which he was duly elected in that he failed to perform the duties of said office in that he failed to make proper effort to collect the proper amount of taxes due and owing to the City and County of Philadelphia.”
The committee having found certain of the charges made in the complaint to be well founded, and in its written report to the court so stated in specific form, the court caused a certified copy of the whole record, with the specifications of the charges against the accused, to be transmitted to the Council of the City of Philadelphia, which was assembled within ten days thereafter, in special and open session, as a court of impeachment, and the members severally sworn to try and decide the charges against the accused according to the evidence; all of which was pursuant to and in compliance with the provisions of Section 9 (e) of Article IV of the Act,
The accused‘s motion that Section 9 of Article IV of the Act of 1919, supra, be declared unconstitutional, and the proceedings thereunder be dismissed, was filed in the Court of Common Pleas No. 4 after the call for the assembling of City Council in special and open session as a court of impeachment was issued by its President, and before it so convened, but the time intervening was not sufficient to permit adequate consideration of the questions involved; indeed, counsel for the prosecution, immediately after service of a copy of the motion on him, made application, in which counsel for the accused joined, that opportunity be given to prepare briefs and for oral argument before the common pleas reached a decision. It might seem that as the court of impeachment has been convened, it is the tribunal to determine
The method of removing the Receiver of Taxes of Philadelphia from office is provided for by statute, and this method was not abrogated by the Constitution of Pennsylvania of 1873. As the office is a creature of the Legislature, the latter has the right to fix the length of its term, to make it determinable on contingencies other than the mere passage of time, and to establish a method for the incumbent‘s removal. Marshall Impeachment Case, supra, 307-311. This authority necessarily involves and implies power to determine and specify the grounds for removal and the preciseness and exactness of the standards to be applied.
Section 9(a) of Article IV of the Act of 1919, supra,
The meaning of the word “mismanagement” is clear. It is “wrong, bad, or bungling management; maladministration“. Webster‘s New International Dictionary, 1931 Edition, page 1381. Besides, “mismanagement” or “mismanaging” has a long established meaning in the law, appearing in various statutes, such as the Acts of March 29, 1832, P. L. 190, section 22; April 22, 1846, P. L. 483, section 1; April 7, 1859, P. L. 406, section 1; May 1, 1861, P. L. 680, section 1; June 7, 1917, P. L. 447, sections 53 and 55, relating to fiduciaries, as well as in the Act of June 1, 1885, P. L. 37, which supplied the Charter for the City of Philadelphia before the Act of 1919, supra, the language of Article XIII of the earlier Act being almost the same as that of Section 9 of Article IV of the later Act. Of course, a public office is a public trust: Constitution of Pennsylvania, Article VI, Section 3; Taylor and Marshall v. Beckham (No. 1), 178 U.S. 548, 577; Commonwealth v. Gamble, 62 Pa. 343, 349; Commonwealth v. Kirk, 141 Pa. Super. 123, 145-146; and the occupant of such an office is a fiduciary. Like any other fiduciary or trustee, he is required to exercise common skill and prudence, and when his conduct of the trust is not marked by these qualities, there is mismanagement. Compare Barnes‘s Estate, 339 Pa. 88, 94. Also, the improper keeping of accounts constitutes mismanagement. Bell‘s Estate (No. 2), 44 Pa. Super. 62, 63-64. There was thus no need for the Legislature to supply a definition for a word of such understandability.
The Receiver of Taxes of Philadelphia, “is the heart of the [municipal] body. He collects the money which is the lifeblood of the organism and passes it on to be circulated throughout the entire body without which it could not function. He collects not only city taxes, but also school taxes, county taxes, water rents and other moneys payable to the governmental subdivisions within the territorial limits of the city and county.” Stewart v. Hadley, 327 Pa. 66, 73; Marshall Impeachment (No. 1), supra, 326. Failure to perform the duties of the office, to collect, and to make proper efforts to collect, taxes and water rents due to the City of Philadelphia, to keep proper books and records, and to supervise properly the employees of the office (the specifications of the charges against the accused) would certainly be mismanagement of this office of public trust, if not constituting “incompetency for the proper performance of official duties“. The Legislature exercised its power properly and did not delegate it by the word “mismanagement” in Section 9 (a) of Article IV of the Act of 1919, supra, for it provides an adequate standard by which the conduct of an incumbent of the office may be judged.
Legislative power is the power “to make, alter and repeal laws.” O‘Neil v. American Fire Ins. Co., 166 Pa. 72, 76. While the Legislature cannot delegate its lawmaking power, it can “delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend.” Locke‘s Appeal, 72 Pa. 491, 498. It may delegate “the duty to determine whether the facts exist to which the law is itself restricted.” Holgate Bros. Co. v. Bashore, 331 Pa. 255, 260. But it cannot empower a fact-finding body “to create the conditions which constitute the fact.” Wilson v. Philadelphia School District, 328 Pa. 225, 237. Under Section 9 of Article IV of the Act of 1919, supra, the members of the Council of the City of Philadelphia are
“It is safe to assume . . . that the type of delegation of power by a legislative body which is invalid under the one Constitution is also invalid under the other, and that reliance may be placed upon . . . decisions arising under the Constitution of the United States in construing the Constitution of Pennsylvania.” Holgate Bros. Co. v. Bashore, supra, 259-260. “The Constitution as a continuously operative charter of government does not demand the impossible or the impracticable. . . . The essentials of the legislative function are the determination of the legislative policy and its formulation and promulgation as a defined and binding rule of conduct. . . . These essentials are preserved when Congress [or the Legislature] has specified the basic conditions of fact upon whose existence or occurrence, ascertained from relevant data by a designated administrative agency, it directs that its statutory command shall be effective. It is no objection that the determination of facts and the inference to be drawn from them in the light of the statutory standards and declarations of policy call for the exercise of judgment . . .“. Yakus v. United States, 321 U.S. 414, 424 (Emphasis added). See also McKinley v. United States, 249 U.S. 397, 398-399; United States v. Grimaud, 220 U.S. 506, 515-517; American Baseball Club of Philadelphia v. Philadelphia, 312 Pa. 311, 317-319. The entire statute must be viewed to see if there is a reasonably clear standard to govern
“It is a cardinal principle of our system of government, that local affairs shall be managed by local authorities . . ., and hence, while the rule is also fundamental that the power to make laws cannot be delegated, the creation of municipalities exercising local self-government has never been held to trench upon that rule. Such legislation is not regarded as a transfer of general legislative power, but rather as the grant of the authority to prescribe local regulations, according to immemorial practice, subject of course to the interposition of the superior in cases of necessity.” Stoutenburgh v. Hennick, 129 U.S. 141, 147. That wide discretionary power of local self government may be vested in municipalities is recognized as an exception to the general rule. As Justice SHARSWOOD said in Durach‘s Appeal, 62 Pa. 491, at page 493: “Municipalities . . . are invested with subordinate legislative powers for local purposes connected with the public good . . .“. “These local units of government possess a legislative body chosen by the people, and delegation of power to them does not actually
The contention that Sections 9(e), (f) and (g) of Article IV of the Act of 1919, supra, are too vague, indefinite and uncertain to be operative and enforced effectively (paragraph 1 of the accused‘s motion) is based upon the assertions that no provision is made for the number of councilmen necessary to constitute the court of impeachment (paragraph 1(a) of the motion), that no provision is made for the number of councilmanic votes necessary for acquittal or conviction (paragraph 1(b) of the motion), that no definition is given of the respective powers and duties of the legislative and judicial branches of the government, both of which participate in the trial (paragraph 1(d) of the motion), and that no provision is made for the procedure which is to govern the trial (paragraph 1(e) of the motion. But the sections are not so incomplete in their provisions that they cannot be executed, nor ” ‘so vague, indefinite and uncertain that the courts are unable to determine, with . . . reasonable degree of certainty, what the legislature intended’ “. Miller v. Belmont Packing Rubber Co., 268 Pa. 51, 63. The respective powers and duties of the legislative and judicial branches of the government, both of which participate in the trial, are clearly stated. The members of City Council try and decide the charges against the accused according to the evidence, voting on whether he is guilty or not guilty, whereas the presiding judge decides finally all questions of law and evidence that arise in the case.
Section 9(e),
The members of City Council are designated by law as the members of a court of impeachment. They are not like jurors who may be replaced when disqualified, but they are members of such a court by virtue of their office. It appears that there is no valid ground, except sickness, for their disqualification from this service. For example, prejudice against or friendliness to the accused should not excuse them. The Legislature knew that they might be called upon to sit in judgment of a man who was intimately engaged with them in conducting the City‘s business, for, in the very same statute, it gave them control over the amount and character of the annual expenditures to be made by municipal officers. Sections 2 and 4 of Article XVII of the Act of 1919, supra, 53 P. S. § 3272 and 3274. It has been decided that participation in making and preferring charges does not excuse, relieve or disqualify from serving on a court of impeachment. 556 Law Trials 17-45; 519 Law Trials 21-28; 25 Law Trials 53-54. Compare Tibbs v. Atlanta, 125 Ga. 18, 20-22; State ex rel. v. Wells, 210 Mo. 601, 614-618; Barrett v. Board of Commissioners of Atlantic City, 85 N.J.L. 134, 138, affirmed in 86 N.J.L. 675 (without opinion). It has been determined that personal interest is not a ground for disqualification.
The oath taken by members of City Council as members of a court of impeachment “to try and decide” the charges against the accused, “according to the evidence“, requires each member to be present during the sessions of the court in order to see and hear the witnesses. Not only what witnesses say but their manner and demeanor while testifying are important factors in passing on their credibility. The determination of whether or not a witness is worthy of belief depends upon the impression he makes when answering questions put to him on direct and cross-examination. It is possible, if not probable, that there will be conflicts or contradictions in the testimony, and the acceptance of the testimony of one witness and the rejection of the testimony of another witness necessitate that most careful attention be given each witness from the moment he is sworn or affirmed until his testimony is concluded. No evidence has been presented as yet to the court of impeachment in this proceeding. If its introduction commences before a new
Although Section 9 of Article IV of the Act of 1919, supra, contains no provision for the number of councilmanic votes necessary for conviction in an impeachment trial, the number necessary in other matters is specified in the Act. Section 6 of Article XVI, 53 P. S. § 3256, provides: “No bill shall become an ordinance unless a majority of all the councilmen elected be recorded as voting in its favor.” This section also provides for “a vote of three-fifths of all the members elected” to the Council to override the mayor‘s disapproval of an ordinance or resolution, but, of course, this has no relevancy, because the mayor‘s approval of the action or decision of City Council in a proceeding such as this is not required. Likewise, Section 10 of Article XVII, 53 P. S. § 3280, which authorizes payment for material furnished or services rendered without a previous appropriation, “if the same is agreed to by a two-thirds vote of all the members elected” to the Council and approved by the mayor, and Section 1 of Article XVIII, 53 P. S. § 3301, which requires “the affirmative votes of two-thirds of all of the members of the council for the passage of any ordinance authorizing new debt to be incurred or an increase of indebtedness” by the city, have no bearing upon the present situation, for they relate to financial matters. However, Section 2(b) of Article II,
The principle of unanimity, which characterizes trial by jury, does not prevail in impeachment trials. At common law, a majority vote for conviction was sufficient. Case of Earl Ferrers, 168 English Reports Reprint 69, 71; 5 Comyns, Digest of the Laws of England, 307-308, and 314; 1 Holdsworth, “A History of English Law“, 379; Riddell, Impeachment in England and English Colonies, 7 N.Y. U. Law Quarterly Review 702, 706. Unless otherwise specified in a constitution providing for the proceeding, a majority is all that is necessary for conviction at the present time. Cushing‘s Law Practice of Legislative Assemblies, 2d Ed., § 2558, page 986. Although both the Constitution of the United States, Article I, Section 3, and the Constitution of Pennsylvania, 1873, Article VI, Section 2, as well as the Constitution of many other States, provide that no person shall be convicted in an impeachment trial without the concurrence of two-thirds of the members of the senate present, the constitutional method of removal is not applicable in this case. Marshall Impeachment Case, supra, 307-311. Hence, a two-thirds vote is not required.
It may be questioned whether a majority vote of all the councilmen elected to City Council or majority vote of the members present, there being, of course, a quorum, is necessary in order to find the accused guilty of any of the charges. Authority for the former is found in the Act of 1919, supra, and for the latter in the common law. As the method of removal of the Receiver of Taxes of Philadelphia from office is statutory, it appears that the statute is controlling, that is, that a majority vote is required.
Rule 4 of the Rules of Council, Manual of the City Council of Philadelphia for 1949, page 14, provides: “A quorum shall consist of a majority of the members elected to Council.” This number is twelve, and it governs even when vacancies exist in the Council‘s membership of twenty-two. It also constitutes a majority of such membership. Therefore, it seems that twelve councilmen must concur in finding the accused guilty before the “court of common pleas shall enter judgment accordingly, and declare the said office vacant“, as provided in Section 9 (g) of Article IV of the Act.
Section 9 (f) of Article IV of the Act of 1919, supra,
The power given the presiding judge to decide “finally” all questions of law and evidence that arise in the case means that his rulings are not subject to action thereon by the members of City Council. Ordinarily at a meeting an appeal can be taken from a ruling of the presiding officer to the body which makes the final decision, but in the “special and open” sessions of the Council “as a court of impeachment” this is prevented by the precise direction that the rulings or decisions of the presiding judge shall be final.
The word “finally” may be considered as also meaning that the rulings of the presiding judge are not subject to review by the Supreme Court. Generally no appeal can be taken from the decision of a legislative body in an impeachment trial to a court, but, in view of the fact that in this proceeding judgment is entered by the court of common pleas upon the decision or finding of the court of impeachment, an appeal may lie to the Supreme Court, but only for review of the propriety of the rulings of the presiding judge, although this is not free from doubt.
As the members of City Council are ipso facto members of the court of impeachment and not jurors, the assumption is that the presiding judge is not required to “charge” as in a jury trial. The guilt of the accused is to be decided by the members of the Council “according to the evidence“, whereas the presiding judge does
It is accordingly apparent that, although Section 9 of Article IV of the Act of 1919, supra, does not prescribe in detail the procedure which is to govern the trial, it is not “impossible of execution,” and such “imperfection . . . does not make it unconstitutional.” Commonwealth v. Moir, 199 Pa. 534, 544. The rule is that “if the situation which arises in a given case is not within the strict letter of the act, but is within its spirit and intention, the court should so direct the procedure that the legislative purpose may be enforced, so far as this can properly be done.” Shapiro v. Philadelphia, 306 Pa. 216, 220. “The act is a remedial one. Its purpose is to [provide a method for the removal of municipal officers from office upon violation of its provisions ‘For the better government of cities of the first class‘]. Hence, the statute is to be liberally construed to advance the legislative purpose . . .“. Vinnacombe v. Philadelphia, 297 Pa. 564, 569. “In all civil litigation, the trial courts, at least to the extent that they are not inhibited by statute, have the power to control the procedure so as to attain ‘justice without sale, denial or delay.’ ” First Nat. Bank of Pittsburgh v. Baird, 300 Pa. 92, 101. “An act will not be declared inoperative and ineffectual on the ground that it furnishes no adequate means to secure
The principle is “ingrained in American jurisprudence that a proper respect for the legislative and executive departments of the government requires that every reasonable presumption be made in favor of the validity of a statute, and that, before an act may be declared unconstitutional or otherwise invalid, it must clearly appear that it cannot be supported by any reasonable intendment.” Willcox v. Penn Mutual Life Ins. Co., 357 Pa. 581, 583. The courts “have no power to set aside any part of a statute, be it a practice act or one dealing purely with substantive law, unless the conclusion that it is either unworkable or unconstitutional is inevitable . . . and the necessity for so declaring inescapable . . .“. Miller v. Belmont Packing Rubber Co., supra, 62. Section 9 of Article IV of the Act of 1919, supra, conveys the legislative purpose in a manner that is workable, and reasonable construction will support and give it effect
“It is axiomatic that he who asks to have a law declared unconstitutional takes upon himself the burden of proving beyond all doubt that it is so.” Hadley‘s Case, 336 Pa. 100, 104. The accused has not sustained this burden.
For the foregoing reasons, all of the provisions of Section 9 of Article IV of the Act of June 25, 1919, P. L. 581, are adjudged and declared to be constitutional, and the proceedings brought thereunder are not dismissed but directed to be carried on expeditiously to conclusion.
Motion dismissed.
Receiver of Taxes appealed.