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COMMONWEALTH v. CABELL. (11/15/62)

November 15, 1962

COMMONWEALTH, APPELLANT,
v.
CABELL.



Appeals, Nos. 46, 47, 48, and 49, Oct. T., 1962, from orders of Court of Quarter Sessions of Philadelphia County, Jan. T., 1960, Nos. 1270, 1271, and 1272, in cases of Commonwealth of Pennsylvania v. Robert A. Cabell, and Same v. George Dayton Luck. Orders reversed.

COUNSEL

Levy Anderson, First Deputy City Solicitor, with him Matthew W. Bullock, Jr., Assistant City Solicitor, James L. Stern, Deputy City Solicitor, and David Berger, City Solicitor, Arlen Specter, Assistant District Attorney, Paul M. Chalfin, first Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellant.

George T. Guarnieri, for appellee.

Lewis M. Stevens, with him Peter Hearn, and William A. Schnader, for amicus curiae.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Flood

[ 199 Pa. Super. Page 515]

OPINION BY FLOOD, J.

These are appeals from orders of the court below quashing three indictments. The first charged a conspiracy by the defendants to violate Section 10-108(1) of the Philadelphia Home Rule Charter. The second charged the defendant Cabell with unlawfully making a false statement and mark in a certain test given under a civil service regulation by placing on an examination paper purporting to be his own the examination number of the other defendant Luck. The third charged the defendant Luck with a similar offense.

The charges against the defendants arose out of an agreement by the defendant Luck to pay the defendant Cabell $50 to take a civil service examination for fireman on Luck's behalf. The two exchanged examination numbers so that Cabell's paper appeared to be that of Luck and vice versa. Cabell's paper, which bore Luck's number, achieved a high score and was number one on the eligible list.

Section 10-108(1) of the Philadelphia Home Rule Charter provides: "No person shall make any false statement, certificate, mark, rating or report with regard to any test, certification or appointment made under the civil service regulations or in any manner commit or attempt to commit any fraud preventing the impartial execution of such regulations."

Section 10-109 provides: "A violation of any of the foregoing sections of this article shall be a misdemeanor, punishable by a fine of not more than three

[ 199 Pa. Super. Page 516]

    hundred dollars or by imprisonment for not more than ninety days, or both, and if the violator is an officer or employee of the City, by removal from office or immediate dismissal."

The appellees attack the indictments upon the following grounds:

(1) The legislature, in the Enabling Act of April 21, 1949, P.L. 665, § 17, 53 PS § 13131, did not intend to do more than give the city power to enforce its ordinances by a civil suit for a penalty by way of fine, with the right to enforce payment thereof by imprisonment for failure to do so, and the act should not be construed to authorize the city to create crimes and punish acts so denounced by imprisonment in the first instance.

(2) The city, in its Home Rule Charter, assumes to exercise a power to create a crime which is an exercise of sovereignty and a ...


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