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COMMONWEALTH EX REL. TRUSCOTT v. PHILADELPHIA. (01/12/55)

January 12, 1955

COMMONWEALTH EX REL. TRUSCOTT
v.
PHILADELPHIA.



Original jurisdiction. No. 143, Miscellaneous Docket No. 10, in case of Commonwealth of Pennsylvania ex rel. Frank F. Truscott, Attorney General, and Lillian Woodard et al., v. City of Philadelphia, Joseph S. Clark, Jr., Mayor, and Vernon D. Northrop, Director of Finance, City of Philadelphia. Final decree entered enjoining City of Philadelphia officials from carrying into effect city ordinance; reargument refused February 7, 1955.

COUNSEL

Marshall H. Morgan, Special Counsel, with him Robert L. Rubendall, Deputy Attorney General, and Frank F. Truscott, Attorney General, for plaintiffs.

Abraham L. Freedman, City Solicitor, with him Harvey Levin, Deputy to City Solicitor, Abraham Wernick, Deputy City Solicitor and Jerome J. Shestack, First Deputy City Solicitor, for defendants.

William A. Gray, with him Gray, Anderson & Schaffer, for intervening plaintiffs.

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

Author: Bell

[ 380 Pa. Page 369]

OPINION BY MR. JUSTICE BELL

The question presented is a narrow but very important one: Is the ordinance of Philadelphia's City Council which abolishes the Board of Revision of Texes invalid because it violates the Constitution?

Philadelphia City Council passed on August 16, 1954 an ordinance which abolished the Board of Revision of Taxes and established new City offices to which it transferred all the functions and duties theretofore performed by the Board of Revision of Taxes. The Commonwealth of Pennsylvania, at the relation of the attorney-general, filed a complaint in equity to restrain the enforcement of the aforesaid ordinance, claiming it was void because (1) it violated the Constitution of Pennsylvania, and (2) it was an unauthorized usurpation of power, and therefore invalid. The City filed a responsive answer; no factual issues were raised; and this Court took original jurisdiction.

We start with the well-settled principle that municipalities are not sovereigns; they have no original or fundamental power of legislation; they have the power to enact only those ordinances which are authorized by the Constitution or by an enabling act of legislature: Allentown School District Mercantile Tax Case,

[ 380 Pa. Page 370370]

Pa. 161, 171, 87 A.2d 480; Genkinger v. New Castle, 368 Pa. 547, 84 A.2d 303; 1 Dillon on Municipal Corporations, 5th. Ed. 449.

The so-called Home Rule Amendment to the Constitution, Article XV, § 1, adopted November 7, 1922, provided: "Cities ... may be given [by the legislature] 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."*fn1

Pursuant to the Home Rule Constitutional Amendment, the General Assembly enacted on April 21, 1949, P.L. 665, 53 PS § 3421.1, the First Class City Home Rule Act which empowered cities to frame and adopt a charter for its own government, subject to the limitations and restrictions prescribed by the legislature and provided it was not inconsistent with the Constitution of Pennsylvania or of the United States.

Pursuant thereto a charter commission framed and the citizens of Philadelphia adopted a Charter providing for local self-government on April 17, 1951 which by its terms became effective on January 7, 1952. The City Charter, unless restricted by the legislature or the Constitution, is sufficiently broad to permit City Council to re-group and re-organize offices in the city government.

The people of Pennsylvania, not the people of Philadelphia, adopted on November 6, 1951 an amendment to the Constitution of Pennsylvania known as the City-County Consolidation Amendment, viz., Article XIV, § 8 of the Constitution.

Since the Constitution of Pennsylvania is the supreme law of the Commonwealth - unless it contravenes

[ 380 Pa. Page 371]

    the Constitution of the United States - it is both wise and necessary to analyze and determine the pertinent provisions thereof, so far as they may affect or govern the question here involved.

Prior to the City-County Consolidation Amendment, Philadelphia had two governments, each of which was coextensive with the boundaries of the City of Philadelphia - a County government and a City government.

Paragraph or clause (1) of the City-County Consolidation Amendment provides: "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."

Paragraph or clause (7) of the Constitutional Amendment - and, of course, the Amendment must be read as a whole - provides: "Upon adoption of this amendment all county officers shall become officers of the city of Philadelphia, and, until the General Assembly shall otherwise provide, 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, but such officers serving when this amendment becomes effective shall be permitted to complete their terms." It will be instantly noted that City Council is not mentioned in clause (7), and the City Charter, which was to take effect on January 7, 1952, is not mentioned. The Amendment specifies in the clearest imaginable language "General Assembly" not "City Council"; and "the laws of the Commonwealth" not "City ordinances" or "City Charter." Equally important and controlling, there was no City ordinance and no City Charter in effect at the time the

[ 380 Pa. Page 372]

Constitutional Amendment became effective on November 6, 1951; so the words "in such manner as may be provided by ... this Constitution and the laws of the Commonwealth in effect at the time this amendment becomes effective," could not possibly be interpreted to mean the Charter of 1952 or the ordinance of 1954.

The clear and unmistakable meaning of clauses (1) and (7) of the Amendment when considered together is that all county offices as such are abolished by the Amendment and thenceforth the City shall perform all functions which were formerly considered functions of county government; and county offices and county officers shall be considered and operated as city offices and city officers, except that such officers shall continue to perform their duties and be elected or appointed, compensated and organized in accordance with the Constitution and the existing laws of the Commonwealth - not until the people of Philadelphia or the City Council shall otherwise provide, but - "until the General Assembly shall otherwise provide."

The language and meaning of the Constitutional Amendment is so clear that, to borrow the words of Chief Justice STERN in Carrow v. Philadelphia, 371 Pa. 255, 89 A.2d 496: If it is "read with an eye to their plain and unequivocal meaning instead of with a straining after forced constructions and a seeking of ambiguities where none exist ... he who runs may read."

The meaning of the Constitutional Amendment is made doubly clear by the language of this Court in Carrow v. Philadelphia, 371 Pa., supra, and in Lennox v. Clark, 372 Pa. 355, 93 A.2d 834.

In Carrow v. Philadelphia, supra, Chief Justice STERN, speaking for the Court, said (pages 257, 258-259): "Article XIV, section 1, of the Constitution designated the Sheriff as a county officer, and, since

[ 380 Pa. Page 373]

    the employes in that office were not under civil service, they were subject to dismissal at the will of their employer. However, by the so-called City-County Consolidation Amendment, adding section 8 to Article XIV, which became effective when it was approved by the electorate on November 6, 1951, all county offices in Philadelphia were abolished and it was provided that all county officers should thereupon become officers of the City of Philadelphia, and, until the General Assembly should otherwise provide,*fn2 should continue to perform their duties and be elected, appointed, compensated and organized in such manner as might be provided by ...


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