March 17, 1958
Appeal, No. 364, Jan. T., 1957, from decree of Court of Common Pleas No. 2 of Philadelphia County, June T., 1956, No. 2969, in case of Cynthia Dwyer v. Richardson Dilworth, Mayor of the City of Philadelphia et al. Decree affirmed.
Samuel C. Tabbey, with him Irving R. Shull and Bernard L. Lemisch, for appellant.
David Berger, City Solicitor, with him Frank X. O'Brien, James L. J. Pie, Assistant City Solicitors, and Jacob J. Siegal, Assistant to the City Solicitor, for appellees.
Before Jones, C.j., Bell, Chidsey, Musmanno, Jones and Cohen, JJ.
[ 392 Pa. Page 124]
OPINION BY MR. JUSTICE COHEN
In Lennox v. Clark, 372 Pa. 355, 93 A.2d 834 (1953) we held that the Office of the Clerk of the Courts of Oyer and Terminer and Quarter Sessions of the Peace of Philadelphia County became a city office under the
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City-County Consolidation Amendment,*fn1 and subject to the civil service provisions of the Home Rule Charter. In making this determination we reasoned that the Constitution established the clerk of quarter sessions as a county officer,*fn2 and since control of this office was not assigned to the judiciary by virtue of Article V of the Constitution,*fn3 no conflict between the city and the courts over the conduct of this office could arise, and therefore no unconstitutional encroachment by the executive branch of the government upon the power of the judiciary could occur by the placing of the office of the clerk under the city's jurisdiction.
After this decision the personnel director of Philadelphia, in cooperation with the clerk of quarter sessions, made a study of the functions and duties of the positions in the office of the clerk and classified the positions in accordance with the civil service system. Based upon this study a qualifying examination was prepared for employes appointed to their posts prior to the effective date of the charter to ascertain whether such employes were competent to retain their jobs.*fn4
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For employes appointed thereafter an open competitive examination was provided pursuant to civil service regulations.*fn5
Two days before the scheduled date of the examinations, June 30, 1956, the plaintiff a taxpayer of Philadelphia, instituted suit to restrain the city from administering the examinations. A preliminary injunction was granted, the city answered and on the basis of the pleadings the injunction was dissolved and a decree entered in favor of the defendants. This appeal with a supersedeas followed.
In effect plaintiff seeks to have us reconsider that portion of our opinion in the Lennox case in which we dealt with the office of clerk of quarter sessions. The gist of plaintiff's contentions is that the office of the clerk performs the ministerial function of court administration precisely as does the office of the prothonotary which we held to be under the exclusive jurisdiction of the judiciary, and that to subject the employees of the clerk's office to municipal civil service would somehow
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threaten the principles of separation of powers, the independence of the judiciary and unconstitutionally permit executive encroachment upon the powers of the courts. See De Chastellux v. Fairchild, 15 Pa. 18, 20 (1850).
We need not dwell upon plaintiff's strained and tenuous argument;*fn6 plaintiff, even if correct, is not the proper party to raise this constitutional question. As we said in Knowles's Estate, 295 Pa. 571, 580-582, 145 Atl. 797 (1929): "[it is fundamental that] ... a court will not heed objections to the constitutionality of an act unless the complainant is harmed by the particular feature alleged to be in conflict with the Constitution.
"The above principle is but one of the many variations of the general rule that 'a court [will not] listen to an objection made to the constitutionality of an act by a party whose rights it does not affect; ... for only persons materially affected are entitled to raise constitutional questions ...
"The rule that one not injured by a statute cannot object to it as invalid was early applied in Pennsylvania in the case of Smith v. McCarthy, 56 Pa. 359, 362-3, where this court said, inter alia: 'Even supposing the
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act to be, as alleged, unconstitutional, private parties cannot interfere by bill to ask it to be so declared, unless on account of some special damage or injury to them in person or property.'"*fn7
Thus, the fact that a plaintiff pays tax monies to the city treasury does not establish her standing to maintain this suit unless she can also demonstrate that her pecuniary interest in the proper use of such funds would be jeopardized by the act she seeks to restrain.
Plaintiff attempts to comply with this requirement by alleging a threatened waste of public funds. She hypothesizes that the proposed examinations might well result in the supplanting of the present experienced and trained personnel by new clerks, thus obligating the city to train new employes and forfeit its investment in the old.
We fail to understand how the weeding out of incompetent incumbent employes and the selection of the best qualified, most able candidates for the public service in any sense involves a waste or misuse of public monies. On the contrary, the retention of those incompetent clerks who have not benefited from their training and experience certainly is undesirable from the standpoint of service and economy.
Since we find no ground upon which the plaintiff's suit can be maintained, the court below did not err in entering a decree for the defendants and dismissing the action.