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LENNOX v. CLARK (01/05/53)

January 5, 1953


Appeals, Nos. 97 to 108, Jan. T., 1953, from judgments of Court of Common Pleas No. 3 of Philadelphia County, June T., 1952, Nos. 5194 and 1694 and Sept. T., 1952, Nos. 509, 510, 513, 514, 526 and 532, in case of William M. Lennox, Sheriff of Philadelphia County, et al. v. Joseph S. Clark, Jr., Mayor, et al. Separate decrees, respectively reversed, affirmed or modified. Declaratory judgment modified. Rearguments refused January 26, 1953.


Grover C. Ladner, for all appellants hereinafter recited, with him Joseph E. Gold and Francis X. McClanaghan, for Sheriff, Herbert S. Levin, for County Commissioners, Benjamin R. Donolow, for Recorder of Deeds, Henry M. Dubbs, Jr., for Clerk of Quarter Sessions and M. Phillip Freed, for Coroner.

Grover C. Ladner and Ethan Allen Doty, for Register of Wills.

Nochem S. Winnet, with him Charles M. Solomon, Fox, Rothschild, O'Brien & Frankel, Joseph H. Lieberman and Michael J. Matta, for Board of Revision of Taxes and Registration Commission, appellees.

D. Barlow Burke, for Prothonotary, appellee.

Abraham L. Freedman, City Solicitor, with him Robert M. Landis, First Deputy City Solicitor, for defendants.

Eric A. McCouch, with him Wm. Barclay Lex, for Committee of Seventy, amicus curiae.

Marshall H. Morgan, for interested parties, under Rule 46.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Stern

[ 372 Pa. Page 359]


Broadly speaking, we are here called upon to decide the effect wrought upon the officers and employes of the former Philadelphia county offices by the City-County Consolidation Amendment of the Constitution (adding section 8 to Article XIV thereof), the First Class City Home Rule Act of April 21, 1949, P.L. 665, and the Philadelphia Home Rule Charter adopted by the electors April 17, 1951, effective January 7, 1952. In the study of the problems involved we have been greatly aided by the comprehensive opinion filed by Judge MILNER on behalf of the court below, with some,

[ 372 Pa. Page 360]

    but not all, of whose conclusions we agree. The appeals here presented concern the offices of the Sheriff, Register of Wills, County Commissioners, Recorder of Deeds, Clerk of the Court of Oyer and Terminer and Quarter Sessions of the Peace, Coroner, Prothonotary of the Courts of Common Pleas, Board of Revision of Taxes and Registration Commission. Because certain special factors require consideration in the case of the Prothonotary, the Register of Wills, the Board of Revision of Taxes and the Registration Commission, we shall initially confine this discussion to the appeals dealing with the other offices named.

The City Solicitor has urged upon us the extreme importance of a prompt disposition of these cases in view of the fact that the Home Rule Charter provides (section A-104) that employes of any governmental agency becoming employes of the city by virtue of the City-County Consolidation Amendment and the enactment of any legislation required by such amendment, who were not appointed after civil service test and certification shall be continued in their respective positions provided that within one year after the Charter takes effect or within one year after such constitutional amendment and legislation become effective they pass a qualifying test prescribed by the Personnel Director and approved by the Civil Service Commission. We held in Carrow v. Philadelphia, 371 Pa. 255, 89 A.2d 496, that such employes were entitled to retention in service until afforded the opportunity to pass such qualifying test. It is our judgment that the year governing is the one that began with the effective date of the Charter, January 7, 1952, but that the time thus fixed was directory, not mandatory, and that the employes concerned cannot be deprived of their right to take the test either because of the failure of the proper authorities to conduct the necessary examinations or because of any pre-existing uncertainty as to the law,

[ 372 Pa. Page 361]

    and that, therefore, a further reasonable period of time must be allowed such employes for that purpose.

Notwithstanding the consolidation of the city effected by the Act of February 2, 1854, P.L. 21, the structure of the government of Philadelphia continually grew more and more complex and ultimately completely outmoded. Instead of a unified system there existed dual governments. Entirely different rules and regulations prevailed in the city and the county offices; in the one the employes were under civil service, in the other they were appointed without any examination as to their qualifications; in the one they were barred from political activities, in the other they were wholly unrestricted in that respect; in the one the officers were compelled to seek their legal advice from the City Solicitor, in the other they were allowed to have their own counsel. These anomalies flourished in spite of the fact that all the offices and departments, city and county, participated in the government of the same compact area and its inhabitants. Moreover, the personnel of the county offices were paid, after the Consolidation Act of 1854, not out of any county treasury, for none such existed, but by the city, and their salaries and wages were, except in the case of elected officers, fixed and determined by the city council: (Act of May 2, 1945, P.L. 375, as amended by the Act of May 2, 1947, P.L. 134). It is no wonder, therefore, that over a great number of years there has been considerable popular agitation for the correction of this patch-work system and its uneconomic division of functions, and it was presumably in response to that agitation that the City-County Consolidation Amendment, the First Class City Home Rule Act and the Home Rule Charter came into being, bringing in their train the problems that have given rise to the present appeals.

The specific issues with which we are here confronted are these: (1) whether the civil service provisions

[ 372 Pa. Page 362]

    of the Charter now apply to the employes of the former county offices; (2) whether the Charter prohibitions against political activities by officers and employes of the city now extend to officers and employes of the former county offices; (3) whether the former county officers now are subject to the Charter prohibition against the appointment of private solicitors to serve them in their official capacities; (4) whether the former county officers are now bound by the mandate of the Charter to give the information prescribed therein to the Director of Finance, the City Controller and the Personnel Director. Or whether, as to all these matters, further legislation by the General Assembly or the City Council is necessary to effect those results. The manner in which these questions are raised is by complaints in equity filed by the former county officers against the named city officials for injunctions to restrain the latter from attempting to apply to the plaintiffs these various provisions of the Charter; in the case of the Board of Revision of Taxes and the Registration Commission the proceeding is by petition for declaratory judgment.

We said in the Carrow case that the solution of the legal problem there presented was entirely free from difficulty if the controlling enactments were read with an eye to their plain and unequivocal meaning instead of with a straining after forced constructions and a seeking of ambiguities. In large measure that same statement is applicable here. There seems to be much needless confusion prevailing in many quarters as to what has been accomplished in the way of consolidation of the city and county governments and what still remains to be done in that direction if the complete purpose of the proponents and sponsors of the reform of the Philadelphia governmental structure is to be brought to fruition. It is believed that all such confusion would be immediately dissipated if two important

[ 372 Pa. Page 363]

    distinctions were kept clearly in mind, -- the one between the effect of the consolidation on the personnel of the county offices and its effect on the duties or functions performed by such offices, and the other between the consolidation of the city and county governments and the proposed "streamling" of the city government following that consolidation. These distinctions, it is hoped, will become entirely clear in the course of this discussion.

We start with the City-County Consolidation Amendment itself. It provides in clause (1) 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." The crucial words there to be noted are "hereby" and "henceforth." The county offices are abolished, not at some indefinite time in the future when a legislative body might so enact, but "hereby," that is, by virtue of the constitutional amendment itself, which in this respect, therefore, is obviously self-executing. It will be further noted that all the functions of county government, that is to say, all the activities or duties theretofore performed by the county officers, are thenceforth to be performed by the city; the city is to take over then and there, as part of its own government, the performance of the functions of the county government. This provision also is clearly self-executing. Clause (6) of the amendment provides: "This amendment shall become effective immediately upon its adoption." Clause (7) provides that "Upon adoption of this amendment all county officers shall become officers of the city of Philadelphia." Here again the amendment is manifestly self-executing, for the change from county to city officers is to take place upon adoption of the amendment -- which, incidentally, occurred on November 6,

[ 372 Pa. Page 3641951]

-- and therefore without the necessity of any further action, legislative or otherwise. Thus the county offices were effectually brought into the structure of the municipal government. And of course, when the county officers became city officers their employes automatically became thereby city employes.*fn1 It is true that clause (7) further states that "until the General Assembly shall otherwise provide," the county officers [having now become officers of the City of Philadelphia] "shall continue to perform their duties and be elected, appointed, compensated and organized in such manner as may be provided by the provisions of this Constitution and the laws of the Commonwealth in effect at the time this amendment becomes effective,...". In other words the county, now city, officers were to carry on their duties or functions just as before the transformation took place and until such duties or functions should be changed by legislative action. But this provision obviously did not purport to deal with the effect of the change from county to city status on the personnel of the county offices, -- an entirely different question from that of the continued operation of the functions or duties imposed on them by then existing law.

What then was the effect on such personnel of the categorical abolition of the county offices and the transformation of county officers into officers of the City of

[ 372 Pa. Page 365]

Philadelphia with the consequent change of their employes from county to city employes? Plaintiffs, the former county officers, contend that those changes effected nothing more than one of nomenclature, referring, in support of that proposition, to the cases of Taggart v. Commonwealth of Pennsylvania, 102 Pa. 354, which dealt with the City Controller, and Commonwealth v. R. G. Oellers, 140 Pa. 457, 21 A. 1085, which dealt with the City Treasurer. So far, however, from those authorities justifying the contention, they would seem to lead to exactly the opposite conclusion, inasmuch as they held that those officers having been designated by the Act of February 2, 1854, P.L. 21, as city officers but by Article XIV, section 1 of the Constitution of 1874 as county officers, the change thus effected was one not merely of names, but that, now as county officers, they had become subject to the law governing the filling of vacancies in county offices as distinguished from the law applicable to the filling of vacancies in city offices. In the Taggart case it was expressly said (p. 364): "In determining what class of officials should be designated county officers, the [constitutional] convention manifestly had in view those whose duties were co-extensive with the boundaries of the county, and the character of the duties which they performed, rather than the names by which they were called. The purpose was to deal with duties, using names so far only as to indicate the objects to be attained."

Apart from precedents either pro or con, it would be wholly incredible to suppose that the only accomplishment intended by the City-County Consolidation Amendment was the merely puerile one of a change of titles, and that for such a superficial purpose alone two successive legislatures voted upon the amendment and the citizens of the Commonwealth adopted it at a Statewide election! Certainly something more substantial

[ 372 Pa. Page 366]

    was intended to be wrought by its enactment. Its real and designed result was that, when the former county officers became city officers and the former county employes city employes, they automatically became subject thereby to the laws then in effect governing and regulating city officers and employes, and also, of course, to any such laws as might thereafter become effective: (cf. Davis v. Carbon County, 369 Pa. 322, 330, 85 A.2d 862, 867).

What, then were the laws applicable to the particular questions here involved that were in force on November 6, 1951, when, by virtue of the adoption of the City-County Constitutional Amendment, the county officers and employes became officers and employes of the city? They were the laws contained in the First Class City Act of June 25, 1919, P.L. 581. Article XIX, section 1 of that act provided that all appointments, promotions, reductions, suspensions, removals, and dismissals in the civil service of the city should be made in accordance with the civil service provisions of that article and the rules prescribed thereunder. Section 23 of Article XIX prohibited the participation of any officer, clerk or employe of the city or of any department, trust, or commission thereof, in certain political activities there enumerated. Article XIII, section 3 (a) provided that the City Solicitor should be the legal adviser and act as attorney and counsel for the city, for all branches of the city government, and for all departments and officers of the city, and section 5 provided that no department of the city should employ any other solicitor, except that assistant counsel might be employed in any particular matter of cause by the mayor, with the consent of the council, but he should be selected by the city solicitor.

These provisions of the 1919 Act, in force on November 6, 1951, were quickly superseded by the provisions

[ 372 Pa. Page 367]

    on these same subjects contained in the Home Rule Charter,*fn2 which, duly authorized by the legislature and adopted by the vote of the Philadelphia electorate, became effective on January 7, 1952.*fn3 Section 7-301 of the Charter provided that all officers and employes of the city, all departments, all independent boards and commissions and all departmental boards and commissions should, with certain exceptions, be under civil service. Section 7-302(1) provided that all officers and employes of the city should comply with and aid in all proper ways in carrying out the civil service regulations and should furnish any records or information which the Personnel Director or the Civil Service Commission might request. Section 8-103 provided that it was the duty of each officer or department and each independent board and commission of the city and every other agency of any kind desiring appropriations from the Council to comply with all requests made by the Director of Finance for information dealing with the budget. Section 8-104 provided that each department, board and commission of the city and every other agency receiving an appropriation from the City Treasury should transmit to the City Controller, the Director of Finance, and the Personnel Director, certain information

[ 372 Pa. Page 368]

    in regard to their officers and employes. Section 10-107, clauses (3), (4) and (5) forbade the appointed officers, and the employes of the city or of any governmental agency whose compensation was paid from the City Treasury, from engaging in any of the political activities therein specified, and all city officers from engaging in certain of those activities. Section 4-400(a) provided that the Law Department of the city should have the power and duty of furnishing legal advice to all officers, departments, boards and commissions concerning any matter or thing arising in connection with the exercise of their official powers or performance of their official duties, and section 8-410 provided that whenever any officer, department, board or commission should require legal advice concerning his or its official business, it should be the duty of such officer, department, board or commission to refer the same to the Law Department, and to follow the advice so received; having followed such advice the officer would be relieved from liability for so doing upon his official bond or otherwise; it was made unlawful for any officer, department, board or commission to engage any attorney to represent him or it in any matter or thing relating to his or its public business without the approval of the City Solicitor.

On January 7, 1952, therefore, all city officers and employes became immediately subject to these provisions of the Charter, except that the former county employes were afforded by section A-104 of the Charter the privilege of taking a qualifying test to satisfy civil service requirements. Of course, any persons employed by former county offices after the adoption of the City-County Consolidation Amendment on November 6, 1951, were, from the very beginning of their employment, city employes, and as such became subject, when the Charter went into effect on January 7, 1952, to all its

[ 372 Pa. Page 369]

    provisions in reference to city employes, just as all other then existing city employes became so subject.

Incidentally it may be observed that the requirement that all the city departments should rely upon the City Solicitor for advice is obviously a wise one,*fn4 since it is important that there be a unified, consistent interpretation of legal problems arising under the administration of the city government, which might not be the case if there were individual solicitors for the different departments.

Some point has been made of the fact that the former county officers in a few instances performed certain duties on behalf of the Commonwealth and to that extent were acting in the capacity of an officer, agent or employe of the State: Philadelphia v. Martin, 125 Pa. 583, 17 A. 507; Knisely v. Cotterel, 196 Pa. 614, 633, 46 A. 861, 864; Philadelphia v. McMichael, 208 Pa. 297, 57 A. 705; Luzerne County v. Morgan, 263 Pa. 458, 107 A. 17. However, just as the rendition of that service did not militate against their general status as county officers, so now its continued rendition does not conflict with their general status as city officers.

The court below held that the civil service provisions of the Charter were applicable to former county officers and their employes, that the Charter prohibitions against their political activities were also applicable, and that the officers were bound to supply the information required by sections 8-103 and 8-104. In all these respects we are in accord with its decision. We are not in accord, however, for the reasons hereinbefore stated, with its conclusion that the former county officers were not bound by sections 4-400(a) and 8-410, requiring them to obtain their legal advice exclusively from the Law Department of the city.

[ 372 Pa. Page 370]

As far, then, as what may be termed the inter city-county consolidation is concerned, it is a case of so far, so good. The one phase is completed in that the county offices are now a part of the municipal government and that all their officers and employes are now city officers and employes and as such bound by the provisions of the Charter concerning such officers and employes. But their activities or functions are not changed; they will operate just the same as before and continue to perform their present duties until the next stage of the project is entered upon, which is to accomplish what may be termed the intra city consolidation, that is, the reorganization or "streamlining" of the municipal governmental structure, now enlarged by the acquisition of the former county offices. Since clause (7) of the City-County Consolidation Amendment provides that the county officers are to continue, now as city officers, to perform their duties "until the General Assembly shall otherwise provide," it would seem that any proposed reorganizations, regroupings, abolitions, or mergers, of the former county offices, designed the more advantageously to incorporate their functions into the existing municipal structure, must wait upon action by the General Assembly. Whether, however, the legislature has already abrogated its power in that regard and vested it exclusively in the city by the provisions of Article II, section 17, of the Home Rule Act or otherwise, is a question not involved in the present appeals, and as to which, therefore, we express no opinion.

This brings us to consideration of the appeals involving the offices of the Prothonotary of the Courts of Common Pleas and the Register of Wills, which require individual treatment because of the fact that they are each the subject of a special provision of the Constitution, and also because they are so closely integrated in the judicial branch of the government. As to the

[ 372 Pa. Page 371]

Prothonotary, it is provided in Article V, section 7 of the Constitution that "For Philadelphia there shall be one prothonotary's office, and one prothonotary for all said courts, to be appointed by the judges of said courts,...; the said prothonotary shall appoint such assistants as may be necessary and authorized by said courts;...." While it is true that by Article XIV, section 1, of the Constitution, the prothonotary is designated as a county officer, and that clause (7) of the City-County Consolidation Amendment provides that upon its adoption all county officers should become officers of the City of Philadelphia, the question arises whether, in view of Article V, section 7, the Prothonotary should be considered a county officer within the intendment of the City-County Consolidation Amendment. It is an established principle of constitutional construction that, where a conflict exists between a specific constitutional provision which is applicable to a particular case and certain general provisions which, were it not for such conflict, might apply, the specific provision will prevail: Philadelphia v. Commonwealth, 270 Pa. 353, 358, 359, 113 A. 661, 662; Commonwealth ex rel. v. Kline, 294 Pa. 562, 567, 144 A. 750, 751. Here, such a conflict does exist because, if the provision of the City-County Consolidation Amendment were to be deemed applicable to the Prothonotary, clause (7) thereof would enable the General Assembly or the City Council, as the case may be, so to emasculate his functions as practically to abolish his office altogether, and, while presumably such extreme power would not be lightly exercised, its mere existence would constitute an encroachment upon the independence and the functioning of the judiciary. Furthermore, since the Prothonotary is authorized by Article 5, section 7, to appoint such assistants as may be necessary and authorized by the courts, that authority, if it were to be circumscribed by such regulations as the Civil Service Commission might

[ 372 Pa. Page 372]

    see fit to apply, could conceivably be impaired or even wholly nullified. Nor do we see any basis for the distinction made by the court below in regard to appointments of certain deputies or assistants specified in legislative acts implementing the constitutionally conferred authority. It is because of the constitutional status specially given the Prothonotary (as distinguished from the Clerk of Quarter Sessions, who is not specifically referred to in the judiciary article of the Constitution, apparently because his office was not regarded as so essential to the functioning of the judicial system as to constitute a fundamental part thereof), that we are led to conclude that the office of the Prothonotary does not fall within the scope of the City-County Consolidation Amendment, and that therefore, not being transformed into a city office, it has not become subject to the provisions of the Charter.

The same considerations thus applicable to the office of the Prothonotary apply with equal, if not greater, force to that of the Register of Wills, since it has been held that he is a judge and that his probate of wills constitutes a judicial act: Sebik's Estate, 300 Pa. 45, 47, 150 A. 101, 102; West, Admrx., v. Young, 332 Pa. 248, 251, 2 A.2d 745, 746; Szmahl's Estate, 335 Pa. 89, 92, 93, 6 A.2d 267, 269. He too is the subject of a specific provision in the Constitution. Article V, section 22, provides that "In any county in which a separate orphans' court shall be established, the register of wills shall be clerk of such court and subject to its directions, in all matters pertaining to his office; he may appoint assistant clerks, but only with the consent and approval of said court." Accordingly it is our opinion that the office of the Register of Wills was not converted by the City-County Consolidation Amendment into a city office and therefore has not become subject to the provisions of the Charter.

[ 372 Pa. Page 373]

We pass to the questions involved in the appeals concerning the offices of the Board of Revision of Taxes and the Registration Commission.

The Board of Revision of Texes is not referred to in the Constitution at all. In Philadelphia it was created by the Act of March 14, 1865, P.L. 320 and is now governed by the Act of June 27, 1939, P.L. 1199. It is a county office? Its members now contend that it is a State Agency, and therefore is not affected by the City-County Consolidation Amendment. They seek support for this contention in the fact, first, that it is not named as a county office in Article XIV, section 1 of the Constitution nor are its members elected under the provision of section 2 but are appointed by the judges of the courts of common pleas; and, second, that previous opinions of this court have stated that it is not a county office. As to its not being listed as a county office in Article XIV, section 1, it would seem sufficient to say that, being a form of organization not common to all the counties of the Commonwealth, its inclusion in that enumeration would scarcely have been in order, the classification there made being presumably intended to refer only to those officers who functioned in every county. As to section 2, it would seem clear that its reference is only to those officers enumerated in section 1.*fn5 As to the references in prior opinions of this court to the Board of Revision of Texes as not being a county office, the cases in which such references occurred arose in periods when the duties to be performed by the Board were, not for the county

[ 372 Pa. Page 374]

    alone, but very largely for the State as well. Thus, in Commonwealth v. Collier, 213 Pa. 138, 62 A. 567, referred to in Suermann v. Hadley, Treasurer, 327 Pa. 190, 208, 193 A. 645, 655, the holding of the court that the Board for the Assessment and Revision of Taxes in that case (which had been established for a certain class of counties by the Act of March 24, 1905, P.L. 47) did not constitute a county office, was based upon the fact that the Board was entrusted with the duty of making assessments and valuations of property taxable for both State and county purposes; indeed the court there said (p. 141, A. p. 568) that "The appointment of the board is primarily for the state as well as for the county, and though the former looks to the latter for the payment to it of a certain tax, the legislature does not permit the county through its township and ward assessors to assess and value property upon which the state tax has been imposed, but directs that this board shall be appointed for that specific purpose." In Selig v. Philadelphia, 232 Pa. 309, 314, 81 A. 308, 310, it was said that the city had no power "over the assessors or the board of revision on questions affecting the assessment of subjects of taxation in which the state alone is concerned to the exclusion of the city"; there too the assessments and valuations made by the Board were in connection with state and county taxes alike. In the very Suermann case above referred to, it was said (p. 201, A. p. 652) that the finding by the Board of Revision of Taxes of the base on which the levy of the tax was to be applied was an executive function "delegated to a municipal agency." In the latest case in which the question has been raised, Clark v. Meade, 369 Pa. 409, 85 A.2d 169, we held that the Controller of the City and County of Philadelphia had the authority to examine the records of the Board of Revision of Taxes of the County of Philadelphia, and in the course of the opinion of Mr. Chief Justice DREW in that case it was

[ 372 Pa. Page 375]

    said (p. 412, A. pp. 170, 171): "... it cannot seriously be argued that the Board is not concerned with the fiscal affairs of the County. One of the principal sources of revenue of both the City and County is the taxation of real and personal property.... Thus the assessments made by the Board are the initial step in the whole process of taxation and it is axiomatic that taxation is the basis for the whole fiscal structure of the City and County."

When we come to view the subject on the basis of history, reason and logic, it is abundantly clear that the Board of Revision of Taxes of Philadelphia is a county office. The boards of revision originally established for all the counties of the State were composed of the county commissioners and associate judges of each county: Act of July 27, 1842, P.L. 441, section 10.*fn6 In counties of the second class, by the Act of June 21, 1939, P.L. 626, the members of the Board of Property Assessment, Appeals and Review are now appointed by county commissioners; in counties of the third class, by the Act of June 26, 1931, P.L. 1379, the members of the Board for the Assessment and Revision of Taxes are also appointed by the county commissioners; in counties of the fourth, fifth, sixth, seventh and eighth classes the Board of Assessment and Revision of Taxes, by the Act of May 21, 1943, P.L. 571, are composed of the county commissioners ...

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