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April 20, 1956


Appeals, Nos. 221 and 222, Jan. T., 1956, from decree of Court of Common Pleas No. 6 of Philadelphia County, March T., 1956, No. 314, and Court of Common Pleas No. 3, March T., 1956, No. 372, in cases of Edward A. Schultz v. City of Philadelphia et al.; and Harry K. Butcher v. City of Philadelphia et al. Decree affirmed.


David Berger, City Solicitor, with him Murray H. Shusterman and Abraham Wernick, Deputies City Solicitor, and Levy Anderson, First Deputy City Solicitor, for appellants.

Henry J. Morgan, with him Marshall H. Morgan, for plaintiff, appellee (No. 221).

Wm. Barclay Lex, with him Joseph P. Flanagan, Jr., and Thomas M. Hyndman, Jr., for plaintiff, appellee (No. 222).

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

Author: Stern

[ 385 Pa. Page 81]


On February 2nd, 1956, there was introduced into the Council of the City of Philadelphia a resolution proposing certain amendments to the City Charter, and, on the same date, a bill providing for their submission to the electorate on Primary Election Day, April 24th. The proposed amendments were three in number, only two of which, however, require consideration in the present proceedings. In effect they changed section 7-301(a) of the Charter by exempting from civil service provisions all employes in the City's elective offices, and section 10-107(4) by relieving all such employes from the prohibition of political activities.

The resolution and the bill were duly advertised and a public hearing was held on February 8th. On February 16th an amended resolution was adopted by the Council, and on February 23rd an amended bill was passed which was approved by the Mayor on March 7th. The amendments to the original resolution and bill consisted in excluding the employes of the Mayor's office from their provisions, thereby differentiating such employes from those of other elective offices and assimilating them to the employes of appointive offices in regard to civil service and political activity. No

[ 385 Pa. Page 82]

    further advertisement was made or public hearing had for the consideration of the legislation as thus amended. Accordingly the Court below (BOK, FLOOD and LEVINTHAL, JJ.) held that the procedure was fatally defective in failing to meet the requirements of section 2-201 of the Charter in regard to amendments and to the advertisement and holding of public hearings.

There can be no question but that an ordinance is invalid if it fails to comply with legal requirements of this nature: Fierst v. William Penn Memorial Corporation, 311 Pa. 263, 166 A. 761; Kelly v. Philadelphia, 382 Pa. 459, 115 A.2d 238. While it is obvious that an insignificant amendment made to a proposed ordinance after advertisement and a public hearing does not require a re-advertisement and public hearing the case is clearly otherwise if the amendment is substantial in relation to the legislation as a whole. The object of a public hearing is to enable the legislative body to ascertain preliminarily the views of members of the public in regard to the proposed legislation, but if such views are not sought after the legislation has been substantially amended subsequent to the public hearing the entire purpose of the prescribed procedure would be defeated. The court below found, for reasons set forth in its opinion, that the change concerning the employes of the Mayor's office was a substantial one, more particularly because it destroyed the uniformity of the class of offices to which the amendments originally were intended to apply, such uniformity being a vital factor in the consideration both of policy and, to some extent, of constitutionality. Those reasons need not be here repeated, but they justify the court's decision.

There is, however, a much more important question to be considered on the present appeal than that of a procedural defect in the passage of the ordinance.

[ 385 Pa. Page 83]

The amendments which it is proposed to submit to the electorate are clearly invalid. It will be remembered that an Act of the Legislature of August 26, 1953, P.L. 1476, § 5, attempted to accomplish the very same object as is now sought by the proposed amendments to the Charter. That Act provided that the employes of the offices of the Sheriff, the City Commissioners, the Board of Revision of Taxes, and the Registration Commission, should be exempted from Civil Service regulations and should be allowed to engage in political activities. The only present difference is that other offices are singled out for the application of this identical legislation, those of the District Attorney, Clerk of Quarter Sessions and City Controller being substituted for the offices of the Board of Revision of Taxes and the Registration Commission. In Clark v. Meade, 377 Pa. 150, 104 A.2d 465, we held that section 5 of the Act of 1953 violated Article III, section 7, of the Constitution, which forbade the Legislature to grant to any individual any special or exclusive privilege or immunity, in that it gave the right to employes - assistants, clerks, stenographers and others - in some offices to be politically active, while denying the same privilege to employes in other offices performing precisely the same type of work and under the same classification.

The question arises, therefore, whether the municipality of Philadelphia possesses the power to enact this proposed measure, which, we have held, the Legislature of the Commonwealth itself cannot constitutionally enact. If the City does possess such power it can be only by virtue of the grant made to it by the Legislature of the right of self-government, since all powers of every municipality or political subdivision of the Commonwealth are solely derivative; a city is not a sovereign political entity but is strictly the creature of the

[ 385 Pa. Page 84]

Legislature.*fn* In granting to the City of Philadelphia the right to frame and adopt its own charter and to exercise the powers and authority of local self-government, did, then, the Legislature include in such grant the power to enact the measure here under consideration? That the answer to this question must be in the negative would seem so wholly obvious as to require little, if any, elucidation. The Constitution, Article XV, Section 1, provided that cities might "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." The actual legislative grant of such powers was made by the enabling Act of April 21, 1949, P.L. 665, Section 17 of which provided that "The charter of any city adopted or amended in accordance with this act may provide for a form or system of municipal government and for the exercise of any and all powers relating to its municipal functions, not inconsistent with the Constitution of the United States or of this Commonwealth, to the full extent that the General Assembly may legislate in reference thereto as to cities of the first class,...". It is contended that Article III, Section 7, of the Constitution, forbidding the General Assembly to pass any local or special law as to some

[ 385 Pa. Page 8528]

subjects of legislation, is an inhibition in terms only on the action of the Legislature, and that the City of Philadelphia is therefore not bound thereby. But, as already stated, the enabling Act of 1949 gave to the City powers only "to the full extent that the General Assembly may legislate in reference thereto as to cities of the first class," that is to say, no more and no less, which is an express declaration, if any were needed, that the Legislature was not giving to the City any powers beyond its own powers of legislation with reference to the City of Philadelphia. Therefore, in granting the right to adopt and to amend the City Charter it did not grant the power here asserted by the City because, as we held in Clark v. Meade, supra, the Legislature, did not possess such power and could not itself enact this same measure.

It is suggested that even if the Council cannot accomplish this legislation the people of Philadelphia can do so by a vote at the polls. This represents a misconception of the nature of our system of representative government, national, state and local. The people themselves cannot enact legislation by popular vote and the inhabitants of a municipality have only such powers of direct legislative action as are granted them by the Constitution which they adopted and by the Legislature of the State acting thereunder. Here the legislative grant of power to adopt and amend a City Charter was made, not to the City Council, but to the City itself, that is to say, to the people of Philadelphia to whom it gave the power to express their approval or disapproval thereof, but this grant to the City was expressly made only to the extent, and subject to the extent, of the powers of the Legislature as above noted, and which, therefore, cannot be transcended by a referendum vote of the people any more than it could be by their own legislative representatives.

[ 385 Pa. Page 86]

It is urged that the Court should not pass upon the validity of the proposed legislation at this time but should defer a decision thereon until after the measure shall have been voted upon at the polls. We cannot subscribe to this point of view. The question of validity has been argued before us by all parties in interest, and since, as a result thereof, we are convinced that the legislation is in fact invalid, it would seem to us to be wholly unjustified to allow the voters to give their time, thought and deliberation to the question of the desirability of the legislation as to which they are to cast their ballots, and thereafter, if their vote be in the affirmative, confront them with a judicial decree that their action was in vain because of the reasons herein set forth.

It remains only to point out what the extraordinary effects of a decision would be that would permit the City of Philadelphia to grant special or exclusive privileges or immunities to any corporation, association, or individual. If it could arbitrarily grant to an assistant, a clerk, a stenographer, a telephone operator, or any other employe in one of the City's governmental offices the right to engage in political activities while denying the same privilege to a similar employe in another office, it could similarly grant, let us say, to one store or one factory a privilege that it denies to another of exactly the same kind, or to the owner or tenants of one dwelling what it denies to the owner or tenants of another identical dwelling, or to some individuals or groups a privilege, - let us say - to use public facilities, libraries, swimming pools, playgrounds, etc., while denying it to others, and so on; possible illustrations might be multiplied ad infinitum. Indeed, if the City, because of the nature of the powers granted it by the Legislature, is not bound by the prohibitions contained in Article III, Section 7, of the

[ 385 Pa. Page 87]

Constitution with reference to granting special or exclusive privileges or immunities it would possess a power which would free it from constitutional restraints essential to the preservation of the equality of individual rights.

Mr. Justice CHIDSEY and Mr. Justice ARNOLD join in this opinion.

Mr. Justice BELL concurs in the result reached by the lower court and by this Court.


For the reasons thus stated we affirm the decree of the court below.


I would reverse and dismiss the bill of complaint for the reason that the action of the learned court below was based on patently untenable ground and no other matter is properly before us for review at this time.

The court below held, and this court now confirms, that the procedure followed by Philadelphia's City Council in the enactment of the ordinance providing for the proposed amendments to the City's Home Rule Charter was "fatally defective in failing to meet the requirements of section 2-201 of the Charter in regard to amendments and to the advertisement and holding of public hearings." That conclusion is plainly erroneous as the able and, to me, unanswerable brief of the City Solicitor irrefutably demonstrates on the basis of heretofore established law.

In passing, it may be noted that the mere introduction by current judicial legislation of the word "substantial" as the test for determining whether a change in a bill by amendment in committee of Council requires a second public hearing for its validity, when passed, will veritably open the floodgates of litigation

[ 385 Pa. Page 88]

    involving legislation during the course of its passage in City Council and make a mockery of Home Rule. No other municipality in Pennsylvania is so bound. No ...

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