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CLARK v. MEADE (03/29/54)

March 29, 1954

CLARK, APPELLANT,
v.
MEADE



Appeals, Nos. 90 and 91, Jan. T., 1954, from judgments of Court of Common Pleas No. 3 of Philadelphia County, June T., 1953, Nos. 9084 and 9034, in cases of Joseph S. Clark, Jr., Mayor, et al. v. William F. Meade et al., and Thomas P. McHenry et al. v. Joseph S. Clark, Jr., et al. Judgments reversed; reargument refused April 15, 1954.

COUNSEL

Abraham L. Freedman, City Solicitor, with him Ernest L. Nagy, Assistant City Solicitor, Abraham Wernick, Deputy City Solicitor and Jerome J. Shestack, First Deputy City Solicitor, for Mayor of City of Philadelphia et al., appellants.

Charles E. Kenworthey, with him Daniel J. McCauley, Jr., for Board of Revision of Taxes and Registration Commission, appellees.

Herbert S. Levin, with him Joseph E. Gold, Grover C. Ladner and Gilbert Stein, for City Commissioners and Sheriff, appellees.

Harry F. Stambaugh, Special Counsel, with him Harrington Adams, Deputy Attorney General, and Frank F. Truscott, Attorney General, for Commonwealth of Pennsylvania, under Rule No. 46.

Robert B. Wolf, and Robert T. McCracken filed a brief for amicus curiae.

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

Author: Arnold

[ 377 Pa. Page 152]

OPINION BY MR. JUSTICE ARNOLD

These two appeals were argued together and will be treated in one opinion, the questions involved being common to both. The controversy is whether § 5 of the Act of 1953, 53 PS § 3422, is a valid constitutional enactment. In No. 91 January Term, 1954, the court below gave judgment for the plaintiffs against the Mayor of Philadelphia and the other defendants in a declaratory judgment proceeding.

In No. 90 January Term, 1954, the court below dismissed the complaint in mandamus brought by the Mayor of the City of Philadelphia et al. against the defendants, William F. Meade et al., constituting the Board of Revision of Taxes of the City of Philadelphia.

[ 377 Pa. Page 153]

On April 17, 1951, the electors of the City of Philadelphia adopted the Home Rule Charter, effective January 7, 1952.*fn1 On November 6, 1951, the City-County Consolidation Amendment to the Constitution of Pennsylvania was adopted by the voters in a state-wide election.

The City-County Consolidation Amendment*fn2 provided in section 8, inter alia, that "(1) 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"; that "(3) All laws applicable to the county of Philadelphia shall apply to the city of Philadelphia"; and that "(7) Upon adoption of this amendment all county officers shall become officers of the city of Philadelphia..."

The Philadelphia Home Rule Charter, section 7-100, placed all the employes of the city under civil service, and section 10-107 forbade political activity on the part of city officers and appointees.

Prior to the Act of 1953, 53 ps/ § 3422, this Court, in Lennox v. Clark, 372 Pa. 355, 93 A.2d 834, decided that by virtue of the City-County Consolidation Amendment, together with the civil service provisions of the Philadelphia Home Rule Charter, the former county officers and county employes automatically became subject to the Philadelphia Home Rule Charter then in effect concerning city officers and employes. This decision embraced the Board of Revision of Taxes of Philadelphia, the Registration Commission of Philadelphia, the County Commissions and the Recorder of Deeds. That the office of Sheriff was included therein had been established by the decision in Carrow v. Philadelphia, 371 Pa. 255, 89 A.2d 496.

[ 377 Pa. Page 154]

Thereafter the legislature passed the Act of 1953, 53 PS § 3422, et seq., § 5 of which provides that the "Sheriff, City Commissioners, the members of the Board of Revision of Taxes and the members of the Registration Commission shall continue to be elected or appointed, organized and compensated, and shall continue to perform all duties and shall have all powers and authority, including, but not limited to, the power and authority to hire and remove employes, as were provided by the Constitution and the acts of Assembly in effect immediately preceding the adoption of Article XIV, Section 8 of the Constitution, and the provisions now or hereafter contained in the Philadelphia Home Rule Charter relating to civil service and prohibiting political activities by officers and employes of the City of Philadelphia shall be inapplicable to the Sheriff, City Commissioners, Board of Revision of Taxes and members thereof and the Registration Commission and members thereof, and the subordinates and employes of such officers, board and commission." (Italics supplied).

The specific question involved in this case is whether § 5 of the Act of 1953 constitutes a valid and constitutional enactment. On this question the appellants claim the sanction of section 8, sub-section 2, of the City-County Consolidation Amendment reading: "Local and special laws, regulating the affairs of the city of Philadelphia and creating offices or prescribing the powers and duties of officers of the city of Philadelphia, shall be valid notwithstanding the provisions of section seven of article three of this Constitution." That article and section forbid the general assembly to pass any local or special law concerning 28 subjects, including (1) "Regulating the affairs of... cities";*fn3

[ 377 Pa. Page 155]

    and (2) "Creating offices, or prescribing the powers and duties of officers in... cities."*fn4 These two are written into section 8, sub-section 2, of the City-County Consolidation Amendment, and this in the language of Article III, Section 7, of the Constitution. The other prohibitions of Article III, section 7, are deliberately omitted, which confirms the conclusion that clause 2 of the City-County Consolidation Amendment did not intend to alter, in any way, the remaining restraints of Article III, section 7. Expressio unius est exclusio alterius. See Commonwealth v. Moir, 199 Pa. 534, 537, 49 A. 351; Commonwealth ex rel. Maurer v. Witkin, 344 Pa. 191, 25 A.2d 317.

Among the remaining clauses of Article III, section 7, of the Constitution, which, as we have said, are unaffected by section 8, sub-section 2, of the City-County Consolidation Amendment, are the following: "Incorporating cities... or changing their charters,"*fn5 and "Granting to any... individual any special or exclusive privilege or immunity..."*fn6 Section 5 of the Act of 1953 clearly offends both of these clauses.

That § 5 of the Act of 1953 is a local law is obvious, because it relates in terms to the city of Philadelphia only. Indeed, it could not relate to any other city of the first class, if any, unless its charter provided for all these same offices (enumerated in § 5 of the Act of 1953).That the Act is also a special act cannot be denied, for it clearly grants special privileges and immunities. Of all the city and county offices of the City of Philadelphia, only four were selected to be taken out of the City-County Consolidation Amendment, and only these four were exempted from the provisions of

[ 377 Pa. Page 156]

    the Charter itself. Section 5 of that Act joins elected officers, such as the Sheriff and County Commissioners, with appointive officers, such as the Board of Revision of Taxes and members of the Registration Commission. In addition, there is no rational, substantial ground for the classification attempted to be made. The offices classified in the Act have no characteristics distinguishing them from other county offices. The classification is therefore arbitrary. If the civil service and merit system is appropriate for the selection and retention of clerks and stenographers in city offices, what rational basis can there be for a legislative determination that employes performing precisely the same type of work, under the same pay and classification plan, are to be excluded from the merit system in the offices designated? And it is impossible to discover any reason for the pronouncement that a stenographer in the office of the District Attorney may be dismissed only for cause, but a stenographer of the same grade, receiving the same compensation, in the office of the Sheriff or the Board of Revision of Taxes may be dismissed arbitrarily.

Again referring to the City-County Consolidation Amendment, section 8, sub-section 2, the exemption concerning local and special laws means that such laws regulating the affairs of the city of Philadelphia are permitted if such laws do not impinge upon the other interdicted clauses of Article III, section 7, of the Constitution, pertaining to "incorporating cities... or changing their charters," and "granting to any... individual any special or exclusive privilege or immunity." In this case a special law regulating the affairs of the City of Philadelphia is valid providing it does not change the charter of the City of Philadelphia, or does not grant "to any... individual any special or exclusive privilege or immunity." This applies also

[ 377 Pa. Page 157]

    to that clause relative to "creating offices, or prescribing the powers and duties of officers in... cities."

The Act of 1953 clearly grants to individuals, in violation of the Article, a special or exclusive privilege or immunity. As we have said, by the terms of the Philadelphia Home Rule Charter, section 7-100, all the employes of the City were placed under civil service and merit rating, and under section 10-107 political activity on the part of city officers and appointees was forbidden. Under the Lennox and Carrow cases, the Sheriff, the Board of Revision of Taxes, the Registration Commission, the County Commissioners and the Recorder of Deeds automatically became subject to the Philadelphia Home Rule Charter regulating city officers and employes. By the terms of § 5 of the Act of 1953, the civil service requirements and the prohibition against political activity by the Sheriff, City Commissioners, members of the Board of Revision of Taxes and the Registration Commission, and the employes of those offices, are declared to be inapplicable. Therefore an immunity is furnished in that the appointees of those offices are exempt from civil service and merit rating and from the prohibition against political activity. But in all other offices of the city, civil service and the prohibition against political activity of such employes are retained. Cf. Wood v. Philadelphia, 46 Pa. Superior Ct. 573; Commonwealth ex rel. Graham v. Schmid, 333 Pa. 568, 3 A.2d 701; Carney v. Lowe, 336 Pa. 289, 9 A.2d 418.

In No. 90 January Term, 1954, the dismissal of the complaint in mandamus is reversed; and there being no facts in dispute, the court below is directed to enter judgment in favor of the appellants, at the cost of the appellees.

In No. 91 January Term, 1954, the judgment of the court below is reversed and is here entered in favor of the appellants, at the cost of the appellees.

Disposition

In No. 90 January Term, 1954, the dismissal of the complaint in mandamus is reversed; and there being no facts in dispute, the court below is directed to enter judgment in favor of the appellants, at the cost of the appellees.

In No. 91 January Term, 1954, the judgment of the court below is reversed and is here entered in favor of the appellants, at the cost of the appellees.

[ 377 Pa. Page 158]

CONCURRING OPINION BY MR. CHIEF JUSTICE HORACE STERN, MR. JUSTICE JONES AND MR. JUSTICE CHIDSEY

We fully concur in the opinion of the court and would not presume to add to the discussion were it not for certain obvious misconceptions that appear to have arisen in regard to the issue involved.

At the outset it is important to note that our present decision is necessarily confined to the one question presented by the instant appeals, namely, the constitutionality of Section 5 of the Act of August 26, 1953 (No. 433). We are not passing, either expressly or impliedly, upon the general power of the legislature to enact laws regulating the affairs of the City, nor upon the power of the Council of the City by resolution, approved by a vote of the people, to amend the Charter in any manner that may be desired, as provided by the First Class City Home Rule Act of April 21, 1949, P.L. 665. Nor is it within our right or power to volunteer an advisory opinion on questions concerning the Charter that are not presented for decision by the appeals before us.

It has been suggested that the result of the majority opinion will be to make it constitutionally impossible, even for the people of Philadelphia, to disestablish civil service or to permit the employees of some of the City departments, and not others, to be politically active. That question is likewise not here involved. But, since it has been injected into the discussion, it is not amiss to point out that we are neither holding nor even implying that a resolution of Council, approved by a vote of the people (the procedure for amending the Charter), is the passage of a law within the contemplation of Article III, Section 7, of the Constitution whose operative prohibitions are directed against the passage by the legislature of certain laws.

[ 377 Pa. Page 159]

The question with which this case is concerned is whether the passage of the Act of 1953, being as the majority opinion clearly demonstrates a local and special law, violates two specific prohibitions of Article III, Section 7, of the Constitution, namely, changing the charters of cities, and granting special or exclusive privileges or immunities. It is argued that the City-County Consolidation Amendment authorizes the enactment by the legislature of laws respecting Philadelphia without restraint from these or, in fact, any of the inhibitions so specified in the Constitution. The fallacy of this contention appears upon a moment's reflection on the wording of the Amendment concerning local and special laws. All that the Amendment did in such regard was to lift the restraint on local and special legislative action with respect to merely the following two of the twenty-eight inhibited subjects listed in Section 7 of Article III, namely, "Regulating the affairs of counties, cities" and other municipal or political subdivisions and "Creating offices, or prescribing the powers and duties of officers in counties, cities" and such other subdivisions. That leaves untouched by the Amendment the twenty-six other prohibited subjects of legislation among which are the changing of charters of cities, towns or villages and the granting "to any corporation, association or individual any special or exclusive privilege or immunity..." As the majority opinion recognizes and plainly declares, both of those prohibitions are violated by the Act of 1953.

The fallacy becomes all the more apparent when it is realized that the remaining prohibited subjects of local or special legislation embrace such matters as "granting divorces", "changing the law of descent or succession", "changing the rules of evidence in any judicial proceeding or inquiry before courts", "fixing

[ 377 Pa. Page 160]

    the rate of interest", "exempting property from taxation", "regulating labor, trade or manufacturing", etc. It seems too obvious for discussion that the Consolidation Amendment, by granting to the General Assembly the power by local and special laws to regulate the affairs of the city and create offices or prescribe the powers and duties of officers thereof, did not thereby confer power upon the legislature to enact separate and distinct laws for Philadelphia concerning, for example, the granting of divorces, the changing of rules of evidence in court proceedings, the fixing of the rate of interest, etc. And, if it be conceded, therefore, as it must, that the Consolidation Amendment does not authorize the legislature's enactment of local and special laws in violation of all such prohibitions, how can it be maintained that the Amendment does permit the passage of laws in violation of the two constitutional prohibitions here involved, which are equally not exempted by the terms of the Amendment?

It is argued that the power to regulate the affairs of cities necessarily and inherently involves the right to change their charters. If that were so, the inclusion in Section 7 of Article III of the inhibition against changing the charters of municipalities would have been unnecessary, the regulation of the affairs of municipalities having already been inhibited by the constitutional provision. Manifestly, many laws might be passed by the legislature regulating the affairs of cities without changing in any way the provisions of their charters, as is strikingly demonstrated by the very Act here under consideration. Sections 2, 3 and 4, the constitutionality of which is not challenged, enact very important provisions regulating the affairs of the City of Philadelphia without changing any of the provisions of the Home Rule Charter.

[ 377 Pa. Page 161]

As to the granting of special privileges and immunities, it is beyond question, as the majority opinion correctly holds, that Section 5 of the Act of 1953 effects such a grant. Our cases are legion which proclaim the principle of constitutional law that, in order to support a grant of special privileges and a withholding of such privileges from others, there must be at least some semblance of a logical and reasonable basis for differentiation between the individuals or groups so relatively classified. In the present instance, the privilege of political activity is not granted, or denied, to all City employees or to certain defined classes of such employees, but merely to the employees of four particular City offices, -- clearly an arbitrary selection since, as the majority opinion points out, those offices have nothing in common with one another nor any characteristics which distinguish them as a class from other offices all of which are now a part of the City government. While it is true that the ban of political activity was the established rule in offices of the former City of Philadelphia, whereas the employees of the offices of the County of Philadelphia were not restrained from engaging in political activity, that differentiation, permissible as it undoubtedly was as between the government of counties and the government of cities, clearly became unjustified when, by reason of the Consolidation Amendment, all County offices became City offices and thereby component parts of the municipal government.

We believe that the foregoing sufficiently demonstrates that all the contrary contentions to which we have referred fail to impair the majority opinion.

[ 377 Pa. Page 162]

DISSENTING OPINION BY MR. JUSTICE ALLEN M. STEARNE

The effect of the majority opinion is the acme of legal sophistry, viz.: to declare unconstitutional a constitutional amendment.

Since Chief Justice MARSHALL's opinion in The Trustees of Dartmouth College v. Woodward, 4 Wheat. (U.S.) 518, 4 L. Ed. 629, and Brown v. Hummel, 6 Pa. 86, 92, (see also 13 Am. Jur. 222, Sec. 77), the legal doctrine remains unchallenged that in the absence of a constitutional prohibition, a city acts as an agent of the state. It is invested with certain subordinate governmental functions for reasons of convenience and public policy. There is no such prohibition in the Pennsylvania Constitution. Consequently, a city charter may be altered or revoked at any time at the pleasure of the Legislature. The majority obviously concedes, as indeed it must, the existence of this doctrine. It is equally apparent that, unless a subsequent constitutional amendment provides otherwise, any act adopted by the Legislature affecting such a charter must be a constitutional act, i.e.: in accordance with the constitutional mandates of Article III, Section 7, which enumerates twenty-eight prohibitions as set forth in the majority opinion. See accurate and informative article by Thomas Raeburn White, Esq., on Constitutional Changes in Matters of Home Rule and Municipal Government in 25 Temple Law Quarterly 428.

What the majority decides is that Section 5 of the Act of August 26, 1953, P.L. 1476, 53 PS 3422, is unconstitutional because it violates the constitutional prohibition of Article III, Section 7, against (a) Special laws and (b) Local laws.

While apparently not controverted, a summary of the constitutional provisions and amendments must be considered in order to comprehend the scope and effect

[ 377 Pa. Page 163]

    of the highly technical objections to the legislative enactment questioned by the majority.

The constitutional amendment, Article XV, Section 1, which is the foundation of the present Philadelphia Home Rule Charter, adopted November 7, 1922, provides: "... Cities, or cities of any particular class, may be given the right and power to frame and adopt their own charters and to exercise the powers and authority of local self-government, subject, however, to such restrictions, limitations, and regulations, as may be imposed by the Legislature...." (Italics supplied)

The pursuance to this constitutional amendment the Legislature, on April 21, 1949, P.L. 665, 53 PS 3421.1 et seq. granted to " cities of the first class " the right to frame, adopt and amend their own charters and authorized City Council, upon petition of citizens, to appoint a Commission to frame a new charter. The Commission so appointed submitted a proposed " Philadelphia Home Rule Charter" to the voters of Philadelphia who adopted it on April 17, 1951, effective January 7, 1952.

It is vitally important to observe that the power to frame a charter is not derived from the Constitution itself; the Constitution grants the right to the Legislature to enact legislation giving a city the right to adopt a home rule charter. In summary, then, the Constitution gave the Legislature the power to permit cities to have home rule. The Legislature exercised this power and granted permission to first class cities to adopt their own home rule charters. The only then existing first class city, viz.: Philadelphia, did adopt a home rule charter.

After the adoption by the City of Philadelphia of a home rule charter, there still existed dual sovereignty of city and county offices within the geographical area of Philadelphia. To eliminate this situation, the Constitutional Amendment, Article XIV, Section 8, was

[ 377 Pa. Page 164]

    passed by the voters of the Commonwealth on November 6, 1951. This amendment, commonly termed the " Consolidation Amendment ", expressly made county functions subject to the provision of Article XV, Section 1, of the Constitution (the section empowering the Legislature to grant home rule). Subsection 2 of Section 8 of this amendment provides: "(2) Local and special laws, regulating the affairs of the city of Philadelphia and creating offices or prescribing the powers and duties of officers of the city of Philadelphia, shall be valid notwithstanding the provisions of section seven of article three of this Constitution." (Italics supplied)

Section 5 of the Act of 1953, supra, (the subject of the present litigation) reads as follows: "The Sheriff, City Commissioners, the members of the Board of Revision of Taxes and the members of the Registration Commission shall continue to be elected or appointed, organized and compensated, and shall continue to perform all duties and shall have all powers and authority, including, but not limited to, the power and authority to hire and remove employes, as were provided by the Constitution and the acts of Assembly in effect immediately preceding the adoption of Article XIV, Section 8 of the Constitution, and the provisions now or hereafter contained in the Philadelphia Home Rule Charter relating to civil service and prohibiting political activities by officers and employes of the City of Philadelphia shall be inapplicable to the Sheriff, City Commissioners, Board of Revision of Taxes and members thereof and the Registration Commission and members thereof, and the subordinates and employes of such officers, board and commission."

The majority decides that since Section 5 of the Act made the home rule charter inapplicable to only four of the former county offices, the Act is unconstitutional on the ground that it is special legislation

[ 377 Pa. Page 165]

    prohibited by Article III, Section 7, of the Constitution. It overlooks, however, the effect of the subsequent Constitutional Amendment, Article XIV, Section 8, which specifically provides: "(2) Local and special laws, regulating the affairs of the city of Philadelphia and creating offices or prescribing the powers and duties of officers of the city of Philadelphia, shall be valid notwithstanding the provisions of section seven of article three of this Constitution." (Italics supplied)

Despite the distinct sanction by the voters of the entire Commonwealth in enacting the Constitutional Amendment, Article XIV, Section 8, curiously enough the majority decides, under the principle of expressio unius est exclusio alterius, that since only two of the twenty-eight constitutional prohibitions of Article III, Section 7, are enumerated in the Consolidation Constitutional Amendment, the remaining twenty-six are left as prohibitions. It is maintained that since one of the remaining twenty-six prohibitions is against special legislation changing a charter, Section 5 of the Act of 1953, supra, is unconstitutional.

Such a construction indeed leads to remarkable results. It does not give full effect to the will of the voters. The words "shall be valid notwithstanding the provisions of section seven of article three of this Constitution" obviously mean all of the provisions of Section 7 inconsistent with the subsequent constitutional amendment, viz.: Article XIV, Section 8 (2), and not only those enumerated. Should the majority be correct, a paradoxical result would necessarily follow: the Constitutional Amendment allows special legislation regulating the affairs of the city, creating offices, and prescribing powers and duties of officers of the city, but the majority says the charter cannot be changed by special legislation since the Constitutional Amendment does not include changing a charter.

[ 377 Pa. Page 166]

The Philadelphia Home Rule Charter regulates the affairs of the city, creates offices, and prescribes powers and duties of officers of the city. When the Legislature enacts special legislation, permitted by the Constitutional Amendment, regulating the affairs of the city, creating offices, and prescribing powers and duties of officers of the city, the city charter is automatically changed. The position of the majority is, therefore, untenable. Subsection 2 of Section 8 of Article XIV must logically be held to include all of the provisions of Section 7 of Article III of the Constitution inconsistent with the former. It, therefore, necessarily follows that since the Legislature may constitutionally enact such " special " laws the prior constitutional requirement of reasonable classification becomes unnecessary. Such consideration is purely political and not judicial. We have frequently decided that the Court is not concerned with the wisdom of legislation, but merely its legality.

As to the question of local laws: the Legislature may constitutionally adopt local laws governing the population of Philadelphia. This conclusion is buttressed by even a casual reading of the Consolidation Constitutional Amendment. The Constitutional Amendment itself singles out the City of Philadelphia. Such amendment does not refer to a city of any particular class. Consequently, any act of the Legislature passed in accordance with the power conferred by the Constitutional Amendment may, therefore, specifically refer to the City of Philadelphia. To decide that, since the Act of 1953, supra, singles out the City of Philadelphia and is not expressed in terms of a city of a certain class, it is unconstitutional has the effect of declaring unconstitutional a constitutional amendment.

I, therefore, dissent and would affirm both judgments of the court below. contd

[EDIT ]

[ 377 Pa. Page 167]

DISSENTING OPINION BY MR. JUSTICE BELL

I protest this decision. I protest the decision (1) because it is constitutionally unsound, and (2) because the Court is unfair to the people of Philadelphia when it fails to decide the vital and tremendously important public questions which are specifically raised in the Petition for a declaratory judgment in this case. I shall discuss these in their inverse order.

Philadelphia is agitated more than it ever has been in the last 50 years. Is the City Charter, which was won after a quarter of a century fight, to be preserved inviolate for a period of five years, or can it be amended, and if so, to what extent, how and by whom? More particularly, can the "No Politics" ban and the Civil Service provisions be eliminated by the legislature in some city departments and not in others, and if so, how? The Mayor of Philadelphia, the City Solicitor and leading officials of the City, the Attorney General of Pennsylvania and counsel representing all parties having a direct and indirect interest agree on the basic issues; they agree that the most important issue is whether the legislature having granted certain Home Rule powers to the City can alter, ...


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