Appeal, No. 426, Jan. T., 1962, from judgment of Court of Common Pleas No. 3 of Philadelphia County, June T., 1962, No. 2563, in case of William W. Mayer, taxpayer and registered elector, v. Paul D'Ortona, president, Council of City of Philadelphia. Judgment affirmed.
Edward R. Becker, with him William A. Meehan and Stanley M. Greenberg, for appellant.
Levy Anderson, First Deputy City Solicitor, and David Berger, City Solicitor, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Keim, JJ.
OPINION BY MR. JUSTICE COHEN
In view of the exigency with which we are confronted, we will not here determine the standing of the plaintiff taxpayer and elector to maintain an action in mandamus to compel the holding of a special election to fill a vacancy in the office of councilman where he (the taxpayer and elector) is not a candidate for that office, his only interest being identical with that of all other taxpayers and electors of the district even though grave doubt is cast upon his standing by our decision in Dorris v. Lloyd (No. 1), 375 Pa. 474, 100 A.2d 924 (1953). Nor by this decision will we determine whether the president of council may be required by an action in mandamus to issue a writ for a special election to be held on a specific date even though there is grave doubt that we can control such an act of discretion. Now we will determine only whether a vacancy was created in the office of a councilman who had been elected president of city council and thereafter took a leave of absence to act as mayor pursuant to the Philadelphia Home Rule Charter requirement that the president of city council should act as mayor until the mayoralty vacancy is filled.
The facts agreed to by both parties are as follows:
At the municipal election held in November, 1959, Richardson Dilworth was elected Mayor of the City of Philadelphia and James H. J. Tate was elected to the office of Councilman from the 7th Councilmanic District for regular terms of four years each. Dilworth and Tate took office on January 3, 1960. On that date Councilman Tate was elected president of council in accordance with the provisions of Section 2-104 of the Philadelphia Home Rule Charter.
On January 14, 1962, Dilworth resigned the office of mayor effective at the close of business February 12, 1962. At a special meeting of Council held on February 13, 1962 Tate presented to Council his request for
a leave of absence from the meetings of Council during the time when he should serve as acting mayor under Section 3-500 of the Philadelphia Home Rule Charter. This leave of absence was granted by Resolution 224 of Council. Thereupon, Councilman Paul D'Ortona, who had been previously elected, took the oath of office as "President pro tempore of the Council" and immediately thereafter Tate was sworn in as "Acting Mayor."
The complaint in substance charged that since Tate was acting as mayor he had vacated the office of councilman of the 7th Councilmanic District and therefore it was the mandatory duty of the appellee to issue a writ of election to fill that vacancy and that the special election for that purpose must be held at the next general election November 6, 1962.
Appellee filed an answer denying that there was any vacancy in the office of Councilman from the 7th Councilmanic District and asserting that Tate, by acting as mayor, had not vacated the office of councilman from the 7th Councilmanic District.
The court en banc concluded that there was no vacancy in the 7th Councilmanic District and entered its order for the appellee. This appeal followed.
The substantive question here presented is clearly controlled and determined by the Philadelphia Home Rule Charter. Section 3-500 of the charter, in view of our decision in Cali v. Philadelphia, 406 Pa. 290, 177 A.2d 824 (1962) must be read as follows:
"Section 3-500. Mayor. An election to fill a vacancy for an unexpired term in the office of mayor shall be held at the next municipal 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 ...