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CALI v. PHILADELPHIA. . BURNS V. PHILADELPHIA (02/13/62)

February 13, 1962

CALI
v.
PHILADELPHIA. APPELLANT. BURNS V. PHILADELPHIA, APPELLANT.



Appeals, Nos. 240 and 241, Jan. T., 1962, from decrees of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1961, Nos. 2238 and 2366, in cases of Anita Cali v. City of Philadelphia and Thomas P. McHenry, Chairman, and Maurice S. Osser and Louis Menna, City Commissioners; and James B. Burns v. City of Philadelphia and Thomas P. McHenry, Maurice S. Osser, Louis Menna, City Commissioners, et al. Decrees affirmed.

COUNSEL

David Berger, City Solicitor, with him Murray H. Shusterman and James L. Stern, Deputy City Solicitors, Levy Anderson, First Deputy City Solicitor, for City of Philadelphia et al., defendants, appellants.

Jerome J. Shestack, with him Ira P. Tiger, Harvey Levin, and Schnader, Harrison, Segal & Lewis, for James B. Burns, appellee.

Louis S. Cali, for Anita Cali, appellee.

Stanley M. Greenberg, with him William A. Meehan, for Wilbur H. Hamilton, chairman of Republican Central Campaign Committee, amicus curiae.

Herbert A. Fogel, for Republican Alliance, amicus curiae.

Thomas D. McBride, with him Raymond J. Bradley, and Herbert S. Levin, for William J. Green, chairman of Democratic County Executive Committee of Philadelphia, amicus curiae.

Edward G. Bauer, Jr., for Harry K. Butcher, amicus curiae.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Bell

[ 406 Pa. Page 293]

OPINION BY MR. CHIEF JUSTICE BELL

These two cases were consolidated and heard and argued as one case and will therefore be disposed of in one Opinion.

The basic question involved is: Can there be an election for Mayor of Philadelphia in 1962?

[ 406 Pa. Page 294]

Richardson Dilworth was elected Mayor of Philadelphia in November, 1959, to serve a four year term from the first Monday of January, 1960 to the first Monday of January, 1964. Dilworth resigned as Mayor effective February 12, 1962. David Berger, City Solicitor of Philadelphia, informed and advised the City Commissioners acting as the County Board of Elections of Philadelphia that a successor to fill Dilworth's unexpired term should be nominated at the primary election on May 15, 1962, and that they should take all proper and necessary measures for the holding of a primary election for nominations to fill the vacancy in the office of Mayor at the 1962 primary. Thereupon Mrs. Cali and Burns each brought a taxpayer's Bill to enjoin the City of Philadelphia and various officials who were named as defendants from holding an election and from the expenditure of money for the printing of ballots and other necessary election requirements for the nomination of a Mayor at the primary election in 1962. The Court of Common Pleas No. 7 of Philadelphia County entered a final decree enjoining the election and granting the relief prayed for in the Bills in Equity against the individual defendants, but considered it unnecessary to enter an injunction specifically against the City. From this decree each of the defendants took an appeal. No factual issues are in dispute - the pleadings raise only questions of law.

The basic question involved can be answered only by a careful analysis of the Philadelphia Home Rule Charter of 1951, the enabling First Class City Home Rule Act of April 21, 1949,*fn1 several provisions of the Constitution, several Acts of the Legislature, and a number of prior decisions of this Court. These raise, as we shall see, a number of knotty questions.

We shall start with the Philadelphia Home Rule Charter which was adopted April 17, 1951, to take effect

[ 406 Pa. Page 295]

January 7, 1952. Section 3-500 of the Philadelphia Home Rule Charter pertinently provides: "Mayor. An election to fill a vacancy for an unexpired term*fn2 in the office of Mayor shall be held at the next municipal or general election occurring more than thirty days after the vacancy occurs, unless the vacancy occurs in the last year of the term, in which event a Mayor shall be chosen by the Council by a majority vote of all its members. ..."

Where, as here, a vacancy occurs in the office of Mayor more than 30 days before the next municipal or general election, the Philadelphia Home Rule Charter clearly and beyond any doubt requires that an election to fill the vacancy must be held at the next municipal or general election, whichever first occurs - in this case the general election - in 1962. If the Charter is the sole controlling yardstick, there can be no doubt, we repeat, that the Mayorality vacancy must be filled by an election in 1962. Unfortunately, however, that is not the sole controlling yardstick - the Charter, as we shall see, is subordinate to and is restricted and limited even as to local affairs first by the pertinent provisions of the Constitution, and secondly, by the pertinent legislative Acts. The Charter owes its breath of life and its very existence first to the Constitution of Pennsylvania, and secondly, to the enabling Act which gave it its birth, its powers and its limitations, namely, the First Class City Home Rule Act of 1949, supra.

In Commonwealth ex rel. Truscott v. Philadelphia, 380 Pa. 367, 111 A.2d 136, the Court said (pages 369-370): "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

[ 406 Pa. Page 296]

Case, 370 Pa. 161, 171, 87 A.2d 480; Genkinger v. New Castle, 368 Pa. 547, 84 A.2d 303; I Dillon on Municipal Corporations, 5th. Ed. 449."

We must, therefore, first examine the Constitution of Pennsylvania, because that is the Supreme Law. We start with the presumption that the City Charter and each of its provisions are constitutional, and the burden of proving that the Charter or one of its provisions clearly and plainly violates the Constitution is upon the persons (in this case, the appellees) alleging unconstitutionality: Rubin v. Bailey, 398 Pa. 271, 157 A.2d 882; Dauphin Deposit Trust Company v. Myers, 388 Pa. 444, 450, 130 A.2d 686; Tranter v. Allegheny County Authority, 316 Pa. 65, 75, 173 A. 289.

In Commonwealth ex rel. Truscott v. Philadelphia, 380 Pa., supra, the Court said (page 370): "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.'"

Section 1 of Article XV could not be clearer - it authorized a city to adopt its own charter and exercise the powers and authority of local self-government - not fully and completely, but - "subject, however, to such restrictions, limitations, and regulations, as may be imposed by the Legislature."

Article XIV of the Constitution was amended by adding Section 8. This is popularly known as the Philadelphia City-County Consolidation Amendment. This Amendment was adopted, not by the citizens of Philadelphia but, by the citizens of the Commonwealth and became effective immediately upon its adoption, namely on November 6, 1951. It relevantly provides: "... (2)

[ 406 Pa. Page 297]

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." [Section seven prohibits the General Assembly from passing any local or special law regulating the affairs of counties, cities, etc.]

When the City-County Consolidation Amendment of 1951, i.e., Article XIV, Section 8, was adopted, very many citizens of Philadelphia believed they were authorized to adopt their own unrestricted Home Rule Charter, and when they adopted their Home Rule Charter they undoubtedly believed that they were securing for themselves what they had long sought and what the Legislature had for years denied them, namely, full and complete home rule so far as local offices, local conditions and affairs and local self-government were concerned. Unfortunately the hereinbefore quoted provisions of the Constitution, and as we shall see the Enabling Act, i.e., the First Class City Home Rule Act of 1949, supra, which authorized and limited the Charter's very existence, make clear that they acquired no such absolute and unconditional untrammeled right.*fn3 Although this is clear and indisputable, it is so often overlooked or emotionally glossed over that we shall repeat: The Constitution granted and reserved to the Legislature, and the Legislature in turn, in granting home rule to Philadelphia, i.e., the right to frame and adopt a Charter, clearly and specifically reserved to itself

[ 406 Pa. Page 298]

    for regular terms of service and does not cover special ...


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