*1 Mayer, Appellant, v. D’Ortona. Before
Argued September C. J., Bell, O’Brien Musmanno, Jones, Cohen, Eagen, Kbim, JJ.. William, him Meehan R. A. Becker,
Edward appellant. for Greenberg, M. Stanley First Deputy City Anderson, Solicitor, Levy appellee. City Solicitor, Berger, David Opinion October 5, 1962: Mr. Justice Cohen, In confront- view the which are exigency with we *2 the of we will not here determine the ed, standing in plaintiff and elector to maintain an action taxpayer special mandamus to election compel the of a holding to fill councilman the office of where that for (the candidate taxpayer elector) is not a all his identical of only being interest with office, that though other of taxpayers the district even electors decision doubt is cast our grave upon standing by A. 2d (No. Dorris v. 924 Lloyd 1), wheth- (1953). Nor this decision we determine by will er of an ac- president required council may special tion mandamus to for issue a writ to specific grave be held on a date even there is though doubt can control discretion. we such an act of Now will determine was we whether a had been created the office of a councilman who elected took president of council and thereafter city of Phila- pursuant leave absence to act as to the mayor delphia presi- Home Rule Charter requirement dent of council should act until city mayor as is filled. mayoralty vacancy
The facts to both follows: agreed parties are as At election held in November, of of Richardson Dilworth was elected the City H. Philadelphia and James J. Tate was elected from the 7th Dis- office of Councilmanic of four terms each. Dilworth regular years trict took office on 1960. On January 3, and Tate that date president elected of Councilman Tate was council in ac- of provisions Section 2-104 of the cordance Home Rule Charter. Dilworth January 14, 1962, resigned the office On of at the close effective business mayor February of of Council special meeting held on Febru- At a 1962. presented Tate Council his request for ary 5'20
a leave of from during absence of Council meetings the time under when he as mayor should serve acting of 3-500 Rule Charter. Philadelphia of This leave absence was granted by Resolution Councilman Paul Thereupon, D’Ortona, who had as been took of office previously the oath elected, immedi- “President Council” pro tempore ately Mayor.” thereafter Tate was “Acting sworn Tate complaint charged in substance that since was he had coun- mayor vacated the cilman of the 7th Councilmanic and therefore it mandatory appellee issue duty fill that writ election to and that gen- election for that must be held at the purpose eral on November *3 any filed answer there
Appellee denying an that Coun- in the office of Councilman the 7th from vacancy as by acting cilmanic District and asserting Tate, from had not vacated the office of councilman mayor, the 7th Councilmanic District. va- no
The court en banc concluded that there was its in the 7th Councilmanic and entered cancy appellee. appeal order for the This followed. clearly presented here is question
The substantive the controlled and determined by of of the Rule Charter. Section 3-500 view charter, Philadelphia, Cali our decision be as must read follows: (1962) A. va- An election to Mayor. 3-500. fill
“Section term in the mayor office of shall unexpired cancy more the occurring held at be the the vacancy after unless days occurs, thirty than the last of the in which year term, occurs council ma- shall be chosen aby event its members. Until of all vote jority mayor’s of the temporary case disability, inor filled, if as mayor; of the Council shall act President resign unable or be of the Council should President of Committee of the Finance to then the Chairman act, mayor.” Council act shall as president of plainly reveals that 3-500 mayor vacancy in of- act until council shall as mayor filled. it follows that fice of has been Thus, president mayor continues of council acts as president of of office as act as such virtue his to per- required operation By to of he is law, responsibilities of form the duties assume mayor, in that not fill the office of but he does of either his office. he does vacate Hence, president should councilman. Indeed, of council or as president Council, he councilman, cease be mayor. longer This no authorized act as he would part clearly required by Sec- the last conclusion is providing Coun- “if tion 3-500 the President resign Chairman then the cil should be unable act, act of the Finance Committee shall Mayor.” leave Tate asked for and received a president Neither of council. from his office
absence president office of of council nor deemed the council thereby in council to be vacated since, or anticipation seat required being himself of Tate to absent acting mayor, while Council elected from Council *4 tempore president pro in 2-104. accordance with Section “Acting an oath of Tate took office as pro Mayor.” took an oath as “President tem- D’Ortona foregoing pore.” the were consistent with All of the provision which Home Rule Charter under councilman and as hold his office as Tate continues president of council. underlying every the statutes, constitu-
In situation provisions ques- or charter determine the articles tional general consistently rule However, followed tion. 522
in other jurisdictions
is that
an inferior officer
where
in
superior
acts
va
office
pending
filling
superior
in
cancy
superior
office,
filling
the inferior officer
him
require
does
vacate his inferior office. State ex rel.
v. Bar
Gragg
Mo.
2d
rett,
(1944);
352
180 S.W.
730
State
1076,
ex rel. De Concini v.
67 Ariz.
195 P.
Garvey,
304,
Mont.
State ex rel.
v.
97
(1948);
153
Lamey Mitchell,
J.
34 P. 2d
v.
N.
(1934);
369
63
252,
Heller,
Clifford
L.
42
Hardin v.
Atl. 155
ex rel.
105,
(1899); State
ex rel.
23 Nev.
Here it is not to look to necessary precedent because the Philadelphia provides Home Rule Charter expressly president of council shall act as mayor of a temporary event case of the mayor’s In may- other disability. shall be the words, the mayor. or—not
There is no doubt that our Phila- Cali v. holding which eliminated delphia, supra, from the charter that a could provision be filled at precipitated problem Cali general since the election permits now of a to a mayor election. at a even Cali However, though it precipitate problem, did does not require us charter for its solution; nor per- outside does it go provisions us to write new into the charter mit city create vacancies coun- would office of city which such vacancies were not cilman where created by our decision Cali. before charter *5 suggested argument called At it Tate is was mayor paid mayor, mayor, a conducts himself as is as mayor all of his activities so simulates reality mayor and of coun- he is the hence his office Standing president cilman and of council is vacated. might very convincing argument alone be a as this of Tate. Tate’s status is not de- However, status by any termined test other than that set out in the city clearly charter which defines his status to be that mayor. no is created Thus, by assumption councilmanic office either Tate’s resig- imposed acting mayor duties of charter properly court refused hence the lower nation and writ.
Judgment affirmed. Dissenting Opinion : Bell Mr. Chief Justice May- governed solely by Philadelphia City not a Mayor an also but not or—it inter elects, alia, legislative body important body equally known —a couneilmen-at-large City and 10 Council with represent people dis- in 10 elected councilmen in- including Councilmanic District here the 7th tricts, resigned Mayor Council- Dilworth When volved. place, created a real, Tate took his man imaginary Mayor elected was Dilworth
Richardson H. Tate elected James J. from the 7th Councilmanic in November, election held at District, years. of four When for a term each duly January Councilman Tate was onmet January Council. On President elected resigned February effective Dilworth *6 day, by 1962.* The resolution Tate obtained of a leave of absence from Council, Council. There upon by Councilman Paul D’Ortona his selected colleagues place of to take Tate’s and took the oath pro tempore The office as “President of Council”. day acting Mayor. Tate same in as Since was sworn February Mayor or Act has been 13, 1962, Tate either Mayor Philadelphia. ing During of has time Tate always paid Mayor, salary been emolu called is and Mayor, never ments' of and has Councilman. acted as Mayer, taxpayer a Coun- and elector of 7th Tate’s presented petition cilmanic in mandamus to District, compel holding of a election to fill Tate’s legal vacancy Mayer’s in the office of Councilman. representa- right proper standing and to sue to obtain Supreme clear from recent tion is of the decision U. of the United States Baker v. S. Carr, Court held) Respondent (and Court contends the lower no Dis- that there was the 7th Councilmanic ground and on that Tate is still a Councilman trict resign mayoralty from and can whenever he desires position and President of return assume still City Respondent further Council. that Tate contends Mayor 7th likewise doubles as from the plaintiff District and therefore and all Councilmanic legally of that District are still and ade- the electors represented by Mayor quately I believe, Tate. This, “make-believe” and these conclu- world, with creates disagree. I sions Mayor of
I that Tate is of Philadel- believe phia. that there I convinced is a am and that the of that electors 7th Councilmanic * Mayor Philadelphia place election for will The next take Philadelphia, MBS, provi Cali v. 290. The on November respect Election Code an election necessitated sions Mayor by and in the office of Council very different. are man imaginary District are not an entitled to real and representative City I further convinced am under that the Councilmen offices organisation governmental Phil- the Charter and the except adelphia absolutely incompatible, dur- are Mayor, ing temporary temporary of a illness absence positions by person. one two cannot filled important majority agree I that the most question Phil- here determined involved has to be adelphia part com- Home Rule Charter. We thereafter pany (1) that the for the reason that I believe two-fold language of Rule Charter must interpretation, receive a reasonable since *7 by Statutory and common Construction Act the sense, presump- by well-recognized decisions of Court a (2) a and that the Charter must be considered as tion, Interpreted merely in whole instead of Section 3-500. light foregoing principles, vacancy the exists the a in to the 7th Coimcilmanic and an election District, vacancy fill on the should be held November 1962. enabling April
The Act of P. L. adopt seq., the its §13101 P.S. et authorized to spe- subject therein Charter to certain limitations own pow- cifically including, prescribed, in “the prescribe authority city officers, and the elective er man- nominated and elected in the shall be who provisions provided by, in accordance the with, ner Pennsylvania Election Code and amend- of the its . . .” ments May P. L. 25 P.S. Act of 23,1949, §2778.1,
The by adding Election Code Section 628.1 the amended provides for elections to fill of- vacancies the which special by a election, of the a member fice of provided limiting the it to for other without Mayor. including the city The officers, provides in Section 2-101 re- Rule Charter pertinently of councilman fol- spect the lows:
“The Election of councilman Couneilmen. . . . one shall elected from each councilmanic district large. seven from have the at elector Each shall right to vote for one district councilman councilmen-at-large. vacancy five occur . . . Should a any the office of President of councilman, Council shall issue a writ of election to the board jurisdiction having over elections elections special vacancy for a election to fill the for the balance unexpired on held which election shall be term, thirty specified date but not less than writ, days may after its issuance. The President of Council fix the date the date election, municipal general primary, next election.” majority City Coun hold that the President of vacancy acting Mayor permanent cil shall be an until a Mayor popular in the office of has been filled majority election. The derive from this conclusion provision following 8-500. of the “Section Charter: unexpired Mayor. An election fill a for an Mayor term at in the office of shall be held general occurring than election* more thirty days after unless occurs, year occurs in the last which event term, “acting” Mayor] [not shall be chosen** *8 by majority vote of Un the Council all its members. Mayor’s tem til the is or case of the filled, porary disability, the President of the Council should Mayor; and if the President of the Council shall act as resign then unable the Chairman of the act, or be Mayor.” of the Council Committee shall act Finance only pertinent provision, 3-500 If were ambiguous I hold would that it is and not, it is which giving it as must Charter, the intent we a reason- Mayor if resigned that was or construction, able * Philadelphia, Pa., supra. v. Cali See ** Mayor. acting Mayor, but Not an shortly Mayor* be died shall after his election, chosen choice was Council'* and such Mayor unexpired By construing the for the term. narrowly, the “act” in word Section 3-500 alone and Mayor. majority only hold that Tate becomes although susceptible well But Section of that as 3-500, opposite as the alone. does not stand construction, people Philadelphia provided in their specified Charter council- and are entitled to certain representatives deny utterly majority manic which the they them and hold in denied effect that can be representation period years for a or more. two
Respondent repeat, further that we contends, resign Tate can return to whenever he desires and position President of This contention obviously people Council- is so unfair to of that un- manic and I far and so fetched is, believe, realistic as to be absurd. question perplexing is
A much and closer more respondent-appellee, raised the contention of the namely will not lie to determine mandamus presented legal issue here because the time of discretionary. is It is well settled as stated law, (1) Philadelphia, v. 387 Pa. “. . . Garratt legal right lies where there is a clear mandamus corresponding plaintiff duty defendant, and a requested discretionary not act is but (2) that mandamus will lie con- ministerial, judgment discretion or of- trol an official’s where that discretionary power. is However, ficial vested is reviewable reversible the discretion where it fraudulently arbitrarily exercised or as here, where, upon mistaken view the law: Maxwell it is based District Board of School Farrell Directors, v. therein and cases cited.” 112 A. law This quoted Maxwell reiterated Farrell School
* Mayor, Mayor. but a Not 528
District Board
Pa.
112 A. 2d
Directors, 381
561,
Zaccagnini Vandergrift Borough,
192;
285,
v.
Pa.
395
A.
2d
150
2d
A.
538; Travis v.
370 Pa.
87
Teter,
326,
Mellinger v.
177;
388 Pa.
A.
130
Kuhn,
83,
Respondent
contends
the President
special
Council
has
discretion to call a
any
any primary or
fill
if
Tate’s
at
exists*
general
within
election which is held
years,
next two or more
or in
discretion
sole
when
may
question
ever
raised
desire.
this
was not
While
in the
Court below and could not be considered
by appellant,
Court
con
if it
been
it
had
raised
can
by appellee.
Elgart, 383
sidered if
v.
raised
Sherwood
“Appellants
question
Pa. 110,
states:
115,
contend this
unconstitutionality]
because
[of
cannot
be raised
now
general
Montgomery
Bar
rule
C.
laid down in
v.
Pa.
Assn.
329
ter, to fill may va- councilmanic call * year. occurred the fourth Unless
529 caney general primary, elec- at “the next or my reasonably judgment (a) con- tion.” In this must be per- (b) together every strued and other construed provision Elgart, tinent of the Charter. In v. Sherwood p. give 383 Pa. fail to ef- Court 114: “To 110, said, provisions give fect to them all of the of a or to statute an unreasonable or would violate absurd construction interpretation: statutory Ster- fundamental of rules ling Philadelphia, 793; A. 2d 538, 541, Lodge In- American Brake Shoe Co. v. 9 of the District 172, ternational Association Pa. of 164, Machinists, Statutory May 28, 94 A. Construction Act of 884; P. L. 552.” 52; Art. 46 PS IY, §§551, §§51, by, primary having gone May, in the next and the General Election is November Municipal Respondent May next Election is 1963. apparently word further that because of the contends repeat, “may”, City may, the President of Council we Special years any time call election three later or at A he of words, desires. construction these reasonable especially together entire when considered with the give City Council would not the President of Charter, postpone special for a discretion period years, any of two or at his discretion at time year re- desires; the third a reasonable construction special year. quires that the election must be held this that the President of It follows had to fill to call an election in the discretion Primary May in the Elec- of 1962 or November General Irrespective whether Tate is tion of or Mayor, having the President of Council, to fill for an election to call failed May, longer Primary, any no has discretion i.e., next duty calling merely ministerial elec- but regular election, at the November wit, tion being merely his act, mandamus 1962; ministerial, lie. will tax- deprive
To electors Philadelphia citizens, or two Councilmanic payers the 7th more Government years representation the Form of repugnant “Republican to our Government” equality and to the basic American spirit fairness, justice for all. The result reached deplorable lan- clearest justified can be majority in a our Federal State Constitutions guage Char- Rule or in the Legislative act I require No such hence would ter. language exists, *11 vacancy. fill the councilmanic I For reasons would reverse Order of these com- direct issue a mandamus Court below and it to Council to a writ President issue pelling November election to be held on 7th to fill the Councilmanic Councilmanic District. opinion. joins
Mr. O’Brien this dissenting Justice Turner Estate.