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MAYER v. HEMPHILL. (04/26/63)

THE SUPREME COURT OF PENNSYLVANIA


April 26, 1963

MAYER, APPELLANT,
v.
HEMPHILL.

Appeal, No. 187, Jan. T., 1963, from decree of Court of Common Pleas No. 3 of Philadelphia County, Dec. T., 1962, No. 1755, in case of William W. Mayer v. Alexander Hemphill, Controller of City of Philadelphia, Francis A. Lalley, Finance Director of City of Philadelphia, Philip M. Poorman, Treasurer of City of Philadelphia, and James H. J. Tate. Decree affirmed.

COUNSEL

Edward R. Becker and Stanley M. Greenberg, with them William A. Meehan, for appellant.

Edward G. Bauer, Jr., City Solicitor, and David Berger, Special Counsel, with them Ellis A. Horwitz and Matthew W. Bullock, Jr., Assistnat City Solicitors, and James L. Stern, Deputy City Solicitor, for appellees.

Jerome J. Shestack, with him Ira P. Tiger, William A. Schnader, and Schnader, Harrison, Segal & Lewis, for appellee.

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

Author: Bell

[ 411 Pa. Page 3]

OPINION BY MR. CHIEF JUSTICE BELL

Plaintiff, a taxpayer and registered elector, filed a taxpayer's Complaint in Equity against the Controller and other (named) fiscal officers of Philadelphia to restrain them from paying the salary of James H. J. Tate; and to enjoin Tate from holding the office of City Councilman; and such other relief as the Court may deem proper. Tate was granted permission by the Court to appear as defendant-intervenor. Tate, according to a prior decision of this Court in Mayer v. D'Ortona, 408 Pa. 518, 184 A.2d 582, is an elected Councilman of the City of Philadelphia and the Acting Mayor.

[ 411 Pa. Page 4]

Although Tate is a Councilman who is on leave of absence and performs no duties as such, and although he is only "Acting" Mayor of Philadelphia, he receives the salary of a Mayor, and exercises all the duties and powers of a Mayor.

Defendants filed preliminary objections to the Complaint and requested the Complaint be dismissed for six reasons: (1) a taxpayer's suit does not lie to test the right to hold public office; (2) quo warrantor is the sole and exclusive remedy in such a case; (3) the present action is premature since Acting Mayor Tate was not a candidate for Mayor under the provisions of Section 10-107(5) of the Charter; (4) Section 3-400, and not Section 10-107(5), of the Charter is applicable to an acting Mayor; (5) there was a want of equity in plaintiff's Complaint in that the granting of the relief prayed for would result in unnecessary disruption of municipal affairs; and (6) the Complaint failed to state a cause of action upon which relief may be granted.

After hearing argument, the Court below sustained defendants' preliminary objections on the grounds: (1) the suit was premature since Tate had not in fact become a candidate under Section 10-107(5) of the Charter, (2) there is no jurisdiction in equity since quo warrantor is the sole and exclusive remedy, and (3) as a matter of substantive law, Tate is not required to resign as Councilman or as acting Mayor in order to seek election to a full term as Mayor.

Appellant appealed from the Order of the Court below which sustained defendants' preliminary objections and dismissed the Complaint.

Philadelphia's Home Rule Charter, adopted in 1951, provides in "Section 10-107. Political Activities.*fn1

...

"(5) No officer or employee of the City, except elected officers running for re-election, shall be a candidate for nomination or election to any public office unless he shall have first resigned from his then office or employment.

"(6) Any officer or employee of the City who violates any of the foregoing provisions of this section shall, in addition to any penalties provided for hereafter, be ineligible for one year for any office or position under the City."

Section 10-109 of the Charter provides: "Section 10-109. Penalties. A violation of any of the foregoing sections of this article shall be a misdemeanor, punishable by a fine of not more than three 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 facts and circumstances which have caused this suit and this appeal are very unusual. Because they involve an interpretation of the meaning of several provisions of the City Charter,*fn2 and because of the recent decision of this Court in Mayer v. D'Ortona, 408 Pa., supra, and because the present factual situation is novel, differences and confusion have arisen between and among the various parties involved.

Quo Warrantor - Taxpayer's Bill

The first question on which the parties vigorously differ is whether, under these unusual circumstances, quo warrantor is the sole and exclusive remedy, or

[ 411 Pa. Page 6]

    whether a taxpayer's bill and possibly other remedies such as injunctive relief, will lie.

The general rule is well settled that quo warrantor is the sole and exclusive remedy to try title or right to office, whether the right which is challenged is that of a de jure or a de facto officer. It is likewise part of the general rule that quo warrantor can be brought only by an Attorney General, or by a District Attorney, or by a person who has a special right or interest as distinguished from the right or interest of the public generally, or has been specially damaged. Brinton v. Kerr, 320 Pa. 62, 63-64, 181 A. 569; Commonwealth ex rel. Schermer v. Franek, 311 Pa. 341, 166 A. 878; Commonwealth ex rel. District Attorney v. Gibson, 316 Pa. 429, 175 A. 389; Williams's Appeal, 312 Pa. 477, 167 A. 587; Commonwealth ex rel. v. Conroy, 267 Pa. 518, 110 A. 166; Eddy v. Ashley Borough, 281 Pa. 4, 125 A. 308; Dorris v. Lloyd (No. 2), 375 Pa. 481, 100 A.2d 599; Commonwealth ex rel. McLaughlin v. Cluley, 56 Pa. 270; Commonwealth ex rel. Butterfield v. McCarter, 98 Pa. 607; Commonwealth ex rel. Gast v. Pfromm, 255 Pa. 485, 100 A. 276. Cf. also Dorris v. Lloyd (No. 1), 375 Pa. 474, 100 A.2d 924. And this is particularly true where such a judgment would not place the plaintiff himself in office: Commonwealth ex rel. Schermer v. Franek, 311 Pa., supra; Commonwealth ex rel. v. Crow, 218 Pa. 234, 67 A. 355.

[ 411 Pa. Page ]

However, there is likewise a well settled general rule that a taxpayer has a right and a standing to sue to enjoin public officials from wrongfully or unlawfully expending public money, and in such cases the complainant need not have any special interest which is damaged other than his interest as a taxpayer: Smith v. Gallagher, 408 Pa. 551, 185 A.2d 135; Butcher v. Philadelphia, 382 Pa. 34, 114 A.2d 120; Scudder v. Smith, 331 Pa. 165, 200 A. 601; Page v. King, 285 Pa. 153, 131 A. 707; Harris v. Philadelphia, 299 Pa. 473, 149 A. 722.

[ 411 Pa. Page 7]

Sometimes these two general rules collide or overlap. Moreover, appellant points out that in recent years exceptions have been wisely recognized by the Courts to the narrow circumscribed limited remedy of quo warrantor for several reasons: (1) quo warrantor does not always furnish an adequate and full remedy; (2) the wisdom of applying a remedy which will avoid a multiplicity of suits; (3) the paramount right of the public to have a surer and more adequate remedy to restrain wrongful acts by a public official, including the unlawful expenditure of public money. Where such circumstances exist, equitable relief has been granted through a taxpayer's bill or other injunctive or equitable remedy. Cf. Smith v. Gallagher, 408 Pa. 551, 185 A.2d 135; Schrader v. Heath, 408 Pa. 79, 83, 182 A.2d 696; Wright v. Wagner, 405 Pa. 546, 175 A.2d 875; Pennsylvania State Chamber of Commerce v. Torquato, 386 Pa. 306, 125 A.2d 755; and cases cited pages 328-329; Butcher v. Philadelphia, 382 Pa., supra; Gladwyne Colony, Inc. v. Lower Merion Township, 409 Pa. 441, 447, 187 A.2d 549; Baker v. Carr, 369 U.S. 186; Bowers v. Reitz, 315 Pa. 310, 172 A. 707; Kerr v. Trego, 47 Pa. 292; Appeal of Town Council, 22 W.N.C. 431, 15 A. 730.

Appellant contends that three very important questions are necessarily involved in this case and they cannot be adequately answered nor can the public be fully and promptly protected by quo warrantor. These questions are (1) the title or right to office of Tate, (2) the right of a fiscal officer to lawfully pay any salary to Tate, and (3) which if any provisions of the City Charter with their severe criminal and civil penalties apply to Tate. For example, appellant contends that payment of public funds to Tate is illegal and must be enjoined because Tate is no longer (a) a City Councilman or (b) President of City Council or (c) acting Mayor or (d) Mayor. Appellant contends that

[ 411 Pa. Page 8]

    this is clear as to (a), (b) and (c) under the resignation and removal provisions of the Charter; as to the office of Mayor it is clear under Mayer v. D'Ortona 408 Pa., supra. Although the present action was brought against the fiscal officers of the City and not against Tate, the various important and highly controversial legal questions seriously affect not only Tate and the payment of his salary, but also and even more importantly the lawful and orderly administration of the City of Philadelphia.

Appellant further contends that a taxpayer's bill is both appropriate and necessary for realistic reasons, viz., since quo warrantor can be brought only by a District Attorney or by an Attorney General, (or by a person who is specially interested or specially damaged), the suit may never be brought and the public may never be protected for one or more reasons, i.e., (1) misapprehension of the law by the official; (2) volume and pressure of the official's other public business; (3) an unwise exercise of discretion by the official; or (4) politics. Courts are striving to get away from technicalities in order to promote justice and if the public interest is to be protected, Courts cannot blind themselves to realities. However, because of the well known exigencies in the circumstances here present, we shall, without deciding the procedural question, assume that a taxpayer's bill will lie.

Meaning of Pertinent Charter Provisions

An interpretation of pertinent provisions of the Charter, which is desired by all the parties, raises complex and difficult questions. Is Tate an officer of the City, and if so is he a candidate for nomination for Mayor, and if so must he first resign? To answer these questions will obviously require a careful consideration of the pertinent provisions of the Philadelphia City Charter and their application to the facts of this case.

[ 411 Pa. Page 9]

Tate (who was not an original defendant but was allowed by the Court to become a defendant-intervenor) places an entirely different meaning and interpretation upon Section 10-107(5) than do either the appellant or the original defendants. Tate's first contention is that he does not fall within the prohibitions of Section 10-107(5),*fn3 because he is acting Mayor of Philadelphia, and although he is only acting Mayor he is governed by Section 3-400 of the City Charter, which by its terms applies only to a Mayor. His second contention is that he is a Councilman and Section 10-107(5) has no application whatsoever to a Councilman, and does not prevent a Councilman from running for another office without resigning.

Section 3-400 provides: "The Mayor shall serve for a term of four years beginning on the first Monday of January following his election. He shall not be eligible for election for more than two successive terms; and he shall not during his term of office be a candidate for any other elective office whatsoever. Should he announce his candidacy for any other office he shall be automatically disqualified to continue to serve as Mayor, and the office shall be deemed vacant."

Tate's first argument is very strange in view of the fact that he contends that he is still a Councilman and is not Mayor of Philadelphia, but only an "acting" Mayor - even though he exercises all the powers and duties of and receives the salary of Mayor. There is no provision in the City Charter for an "acting" Mayor, and certainly such an entity is not specifically covered or governed by Section 3-400. It is difficult, therefore, to appreciate how counsel for Tate can so often blow hot and cold - to have him Mayor when it suits their purpose, and only a Councilman and President of City

[ 411 Pa. Page 10]

Council (on leave of absence) when that suits their purpose. Having contended that he does not have to resign in order to be a candidate for Mayor because he is an acting Mayor and not a Councilman, Tate*fn4 further confuses the issue by his second contention, namely, that he is a City Councilman and Section 10-107(5) - which prohibits all officers and employees of the City, except elected officers running for re-election, from being a candidate for any public office unless he first resigns - has no application whatsoever to a Councilman.

A City Councilman is an Officer of the City within Section 10-107(5)

The reason that Section 10-107(5) has (allegedly) no application to a Councilman is because a Councilman is not an elected officer or employee of the City within the meaning of that Section and consequently a Councilman can be a candidate for any other public office without first resigning. Although a Councilman is paid out of the City treasury, he is, according to Tate, the only person on the City payroll who (a) can engage in certain political activities which are prohibited to all officers and employees of the City, and (b) does not have to resign when he is a candidate for another office. This is wholly contrary to the spirit of the Charter and cannot possibly be accepted. Neither the letter of the Charter nor the spirit permits such an interpretation!

Tate deduces this interpretation from the fact that there are a number of provisions in the City Charter which provide separately and specifically with the Mayor, and others which provide separately with Councilmen, and others which provide for "officers and employees." He contends that a repetition of certain requirements

[ 411 Pa. Page 11]

    or powers or duties of Councilmen would therefore be unnecessary if Councilmen were "officers" within the meaning of the Charter. The fallacy of this contention is apparent from the fact that many provisions of the Charter deal specifically and solely with the Mayor, and yet even Tate agrees that the Mayor is a City officer. While certain powers are specifically granted to, and duties are specifically imposed upon the Mayor and City Councilmen, respectively, an examination of the Charter will demonstrate that these provisions are inserted for the purpose of clarity and certainty, and not to erect in matters of public policy such as this, a Berlin Wall between a Councilman on the one hand, and a Mayor and all other City officers on the other hand. In an attempt to demonstrate the soundness of this contention, Tate quotes, inter alia, Section 4-400(a), which provides that the Law Department "shall furnish legal advice to the Mayor, to the Council, and to all officers, departments, boards and Commissions." Instead of supporting Tate's position this has exactly the opposite effect. If there were any logic or merit to Tate's argument on this point, it would have been entirely unnecessary for the Charter to mention the Mayor in this Section, because, we repeat, the Mayor is an officer of the City within the meaning of many provisions of the Charter, as even Tate admits.

Even more importantly, Tate, in his attempt to draw this sharp line of demarcation between a Councilman and a Mayor or other officer or employee of the City, has completely overlooked the other pertinent provisions of Article X, Sections 10-107 and 10-101 et seq., of the Charter. In addition to Section 10-107(5) of Article X, upon which Tate bases (erroneously) his principal if not his entire argument on this point, Article X, Section 10-107(3) and Sections 10-100, 101 and 105, refute this contention. For example, "Section 10-107. Political Activities" provides: "(3) No

[ 411 Pa. Page 12]

    in connection with the procurement of bonds for City officers or employees.

"ANNOTATION

...

"Purposes: 1. Any officer or employee who is paid from the City Treasury (e.g. City and County officers and employees and Councilmen) may not, directly or indirectly, be a broker or agent profiting from the bonding of City officers or employees. See Annotation to Section 10-100. Past experience indicates the desirability of this prohibition.

"Section 10-105. Gratuities. No officer or employee of the City and no officer or employee whose salary or other compensation is paid out of the City Treasury shall solicit or accept any compensation or gratuity in the form of money or otherwise for any act or omission in the course of his public work. ..."

The Annotation to this Section states: "Purposes: 1. ... The solicitation or acceptance of any such benefit by any City officer or employee of the executive or legislative branch or by any County or other governmental employee whose compensation is paid from the City Treasury is prohibited.

"2. For penalties for violating this section, see Section 10-109."

No one would dare to contend that the City Charter intended to allow a Councilman (a) to be a broker or agent for City business or (b) to be interested in or benefited from City contracts or (c) to receive compensation or gratuities for any act or omission in the course of his public duties, or (d) to solicit or receive contributions from civil service employees or from other persons for a political purpose - yet that would logically and necessarily be the result of Tate's contention that a Councilman is not an officer or employee of the City under Section 10-107(5).

[ 411 Pa. Page 14]

A consideration of all the aforesaid provisions of the Charter and of the Charter in its entirety makes it clear that this contention of Tate, viz., allowing a Councilman but no other "elected officer or employee of the City" to be a candidate for election to a different (public) office without first resigning is contrary to both the letter and the spirit of the Charter.*fn5

Is Tate a Candidate?

We note that the word "candidate" is not defined in the Philadelphia Home Rule Charter. Candidate is not a word of art. "Candidate" must, therefore, be construed in the light of its common, ordinary and generally accepted meaning. Fidler v. Zoning Board of Adjustment, 408 Pa. 260, 264, 182 A.2d 692; Commonwealth Tr. Co. Mtg. Invest. Fund Case, 357 Pa. 349, 54 A.2d 649. Cf. also, Commonwealth ex rel. Laughlin v. Green, 351 Pa. 170, 40 A.2d 492; Leonard v. Commonwealth, 112 Pa. 607, 4 A. 220; Statutory Construction Act of May 28, 1937, P.L. 1019, § 33, 46 P.S. § 533.

In view of the penalties provided for in Section 10-107(6) and in Section 10-109, we agree with appellees that Section 10-107(5) must be strictly construed. The original defendants who are appellees herein disagree with Tate's aforesaid contentions. These appellees contend that when strictly construed, this Section does not apply to Tate for two reasons: First, and most important, Tate does not become a candidate for nomination or election to the office of Mayor until after (a) he files nomination papers for the Mayoralty and (b) the time for withdrawal of nomination to that office

[ 411 Pa. Page 15]

This confusion can be eliminated and an orderly workable administration of City Government can be preserved by overruling that decision. In that case a majority of the Court decided*fn7 that Tate was not Mayor of Philadelphia; he was a Councilman and was President of City Council, as well as acting Mayor of Philadelphia; and there was no vacancy in the Councilmanic District from which Tate had been elected Councilman (a) even though the residents of that Councilmanic District were thereby left without actual representation in Council, and (b) even though Tate performed none of the duties of a Councilman, and (c) even though there was no such office as acting Mayor when an elected Mayor died or resigned. That conclusion was arrived at by virtue of the language in Section 3-500 of the Charter.

"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 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 [not an acting mayor] shall be chosen by the Council by a majority vote of all its members. Until the vacancy is filled, or in case of the Mayor's temporary disability, the President of the Council shall act as Mayor; and if the President of the Council shall resign or be unable to act, then the Chairman of the Finance Committee of the Council shall act as Mayor."

That section, in the light of possible and existing circumstances, is undoubtedly ambiguous.

The dissenting opinion held that a consideration of that section of the Charter, together with other pertinent sections of the Charter and a realistic and common sense interpretation thereof, demonstrated that

[ 411 Pa. Page 18]

Tate was Mayor of Philadelphia, that there was a vacancy in the Councilmanic District from which he had been elected, and the electors of that District were entitled to a real and not an imaginary or make-believe representative in City Council. It further said that under the Charter and the governmental organization of Philadelphia, the offices of Mayor and of City Councilman were absolutely incompatible and, except during temporary disability, the two positions, Mayor and Councilman, could not be filled by one person.

The effect of the Court's decision in D'Ortona was that if a Mayor of Philadelphia resigned or died one month after his induction, the President of City Council should thereafter be "acting" Mayor until the next municipal election,*fn8 viz., for as long as possibly two years, but that if a mayor died less than one year - 11 months and 29 days, or one month - before the expiration of his term, "a Mayor [not an 'acting' mayor] shall be chosen by the [city] Council by a majority vote of all its members". A construction which produces a result which is unreasonable and wholly unworkable should not be adopted if a construction which will produce a sensible result can reasonably be adopted: Statutory Construction Act of May 28, 1937, P.L. 1019, Art. IV, § 52, 46 P.S. § 552; Gagliardi v. Ambridge Borough, 401 Pa. 141, 145, 163 A.2d 418; Seburn v. Luzerne & Carbon County Motor Transit Company, 394 Pa. 577, 580, 148 A.2d 534.

A situation has arisen which was not presented at the time of that decision. In the light of the existing situation and its resulting confusion, it is clear that the D'Ortona decision is not consonant with the long recognized interpretation of the analogous provisions of the Constitution of Pennsylvania, Article IV, §§ 13 and 14, and of Article II, § 1, paragraph 6, of the Constitution

[ 411 Pa. Page 19]

    of the United States. For example, Sections 13 and 14 of the Pennsylvania Constitution provide as follows: "Section 13. In case of the death, conviction on impeachment, failure to qualify, resignation, or other disability*fn9 of the Governor, the powers, duties and emoluments of the office, for the remainder of the term, or until the disability be removed, shall devolve upon the Lieutenant Governor.

"Filling Vacancy in Lieutenant Governor's Office;

Election of Successor to President Pro Tempore

"Section 14. In case of a vacancy in the office of Lieutenant Governor, or when the Lieutenant Governor shall be ... unable to exercise the duties of his office, the powers, duties and emoluments thereof for the remainder of the term, or until the disability be removed shall devolve upon the President pro tempore of the Senate; and the President pro tempore of the Senate shall in like manner become Governor if a vacancy or disability shall occur in the office of Governor; ...."

The Federal Constitution provides: "In case of the Removal of the President from Office, or of his Death, Resignation, or inability to discharge the Powers and Duties of the said Office, the Same [the powers and duties] shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, resignation, or inability,*fn9 both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until ... a President shall be elected."

The language of Article II, § 1, paragraph 6, of the Constitution of the United States with respect to whether a Vice President succeeds to the Presidency upon the death or resignation of a President, or whether

[ 411 Pa. Page 20]

    he becomes merely an acting President possessing, however, all the powers and duties of the Presidency, is as strong or stronger in favor of an acting President than the language in favor of an acting Mayor under Philadelphia's Home Rule Charter. Yet it is a matter of history which every American knows that Vice Presidents John Tyler, Millard Fillmore, Andrew Johnson, Chester A. Arthur, Theodore Roosevelt, Calvin Coolidge and Harry S. Truman became respectively President of the United States, and not acting President, upon the death of the then President.

To resolve the present uncertainties and confusion which have resulted from Mayer v. D'Ortona and were not foreseen or anticipated when that decision was written, and in accordance with the spirit and a reasonable and realistic interpretation of the provisions of the Charter in its entirety, and in order to safeguard the orderly and workable administration of the Government of Philadelphia, Mayor v. D'Ortona is hereby overruled,*fn10 and Tate is declared to be Mayor of Philadelphia.

[ 411 Pa. Page 21]

Since Tate is Mayor of the City of Philadelphia, under a reasonable and realistic interpretation of Section 10-107(5) of the City Charter, and of the Charter in its entirety, he can be a candidate for that office without first resigning and without incurring the penalties which the Charter would otherwise impose upon him.

Mr. Justice MUSMANNO joins in this Opinion and particularly agrees with the overruling of Mayer v. D'Ortona, and the holding that James H. J. Tate is the present Mayor of Philadelphia and as such can be a candidate to succeed himself as Mayor without the necessity of resigning. However, there are several expressions in the Court's Opinion with which Justice MUSMANNO does not agree.

Disposition

Decree affirmed; each party to pay own costs.

CONCURRING OPINION BY MR. JUSTICE COHEN:

Since there are no provisions in the Philadelphia Home Rule Charter dealing specifically with the office of "acting mayor," the Charter's command that the President of City Council assume the office of mayor upon the death, resignation, or temporary disability of the mayor has raised problems concerning the privileges

[ 411 Pa. Page 22]

    and responsibilities of the acting mayor.*fn1 The proper approach in this matter should be one of seeking the policy behind the particular Charter provision in question rather than attempting rigidly to categorize the acting mayor as mayor or councilman for all times and for all purposes.

Appellant asserts - and the majority agrees - that our decision in Mayer v. D'Ortona clothes the acting mayor with the status and obligations of councilman. This is a complete misunderstanding of that decision. In Mayer v. D'Ortona, we merely held that the President of City Council did not forfeit his councilmanic seat when he assumed the office of acting mayor. One of the considerations contributing to that result was the unfairness which would result if the President of City Council was unable to resume his seat in Council where the mayor recovered from his temporary disability, or where the vacancy in the office of mayor was filled by a special election prior to the expiration of the acting mayor's term as councilman.*fn2 Certainly we did not intend to brand the acting mayor as a councilman for all provisions of the Charter and hence deprive him and the City of Philadelphia of the powers of the mayoralty office during the incapacity of the mayor.

[ 411 Pa. Page 23]

Turning to the Charter provisions in question, sections 3-400 and 10-107(5) state the general proposition that one shall not be a candidate for public office without first resigning his present city position. The policy behind this prohibition is set forth in the official annotation as follows: "This requirement is imposed because an officer or employee who is a candidate for elective office is in a position to influence unduly and to intimidate employees under his supervision and because he may neglect his official duties in the interests of his candidacy."*fn3

The framers of the Charter, however, made an exception to this prohibition in the situation where the office sought is the one presently held. Thus section 3-400 provides that the mayor need not resign if he is a candidate for mayor.*fn4 Presumably, the basis of this exception was a value judgment that the benefit from encouraging continuity in office was more important to city government than the possible harm resulting from the evils envisaged in the above-mentioned annotation. Since the policy of encouraging continuity in office applies as forcefully to an acting mayor as to an elected mayor, I would hold that the framers of the Charter did not intend that an acting mayor be forced to resign in order to run for mayor.

However, even if appellant is correct in his contention that Mayer v. D'Ortona compels us to regard the acting mayor as a councilman for all provisions of the Charter, I find no provision which requires a councilman to resign in order to run for public office.

Appellant cites section 10-107(5) which provides: "No officer or employee of the City, except elected officers

[ 411 Pa. Page 24]

    running for re-election, shall be a candidate for nomination or election to any public office unless he shall have first resigned from his then office or employment." A review of the structure and purposes of the Charter makes it clear that the term "officer or employee" as used in section 10-107(5) refers to the executive branch of city government and not to councilmen or other legislative officials, as contended by appellant.

In the first place, it should be noted that section 10-107(5) is a penal statute since one violating its provisions faces penalties of ninety days imprisonment, three hundred dollars fine, and ineligibility of one year for any city position.*fn5 Accordingly, the statute must be narrowly construed. Statutory Construction Act of May 28, 1937, P.L. 1019, § 58, 46 P.S. § 558.

Secondly, an examination of the various provisions of the Charter discloses that the framers did not intend to include city councilmen within this prohibition. Throughout the Charter, a dichotomy is drawn between "officers or employees" on the one hand, and "councilmen" on the other. For example, section 3-306 states that "all officers and employees of the City shall be citizens of the United States." If "officers and employees" includes councilmen, what is the need for a separate section - section 2-103 - which provides that "a councilman shall be a citizen of the United States." Section 10 itself further illustrates this dichotomy between legislative and executive officials of city government. Section 10 is entitled "Prohibited Activities of Councilmen, City Officers, Employees and Others." Section 10-100 enumerates certain prohibited activities for councilmen; section 10-102 sets forth comparable

[ 411 Pa. Page 25]

    restrictions for "city officers and employees."*fn6 Throughout the remainder of section 10, the term "no person" is used in contradistinction to "no officer or employee" where the intent is to include councilmen as well as executive officials.*fn7

Moreover, this Court held in Freund v. Cox, 321 Pa. 548, 183 Atl. 924 (1936), that councilmen were not included within a provision of the 1919 Charter which referred to "officer, clerk, or employee" of the city. The framers of the 1949 Charter were well aware of this judicial interpretation of the phrase "officer or employee."*fn8

Finally, if we look at the purposes of section 10-107(5), as set forth in the Official Annotation above, we can see why the framers of the Charter would make the traditional differentiation between the executive and legislative branches of government. Section 10-107(5) was passed to prevent elected officials from improperly utilizing the powers of their present office to gain another office. Members of the executive branch, who control large numbers of employees, present a more serious threat of such abuse than do councilmen who

[ 411 Pa. Page 26]

    may control only one or two employees. Moreover, in enacting section 10-107(5) the Charter framers were fearful that an officer might neglect his official duties in pursuance of his candidacy. It is much more disruptive of city government where the single individual in charge of an executive department neglects his duties in order to campaign, than where one of the seventeen members of City Council so acts. Herein lies the rationale for the different treatment of the executive and legislative branches of city government by the Charter framers.

In conclusion, I would hold that the policy of encouraging continuity in office applies as equally to an acting mayor as a mayor, and hence neither of them must resign under section 3-400 in order to run for mayor. However, even if appellant is correct in asserting that Mayer v. D'Ortona compels us to label the acting mayor as a councilman, section 10-107(5) does not require a councilman to resign in order to run for mayor.

For these reasons, I concur only in the result.

CONCURRING AND DISSENTING OPINION BY MR. JUSTICE ROBERTS:

I join in the decision of the Court that this case should be decided on its merits. However, I would go further and hold that the taxpayer's complaint in equity is proper and appropriate (and that quo warrantor is not the sole and exclusive remedy), rather than merely "assume that a taxpayer's bill will lie." Cf. Smith v. Gallagher, 408 Pa. 551, 185 A.2d 135 (1962); Schrader v. Heath, 408 Pa. 79, 182 A.2d 696 (1962); Wright v. Wagner, 405 Pa. 546, 175 A.2d 875 (1961); Butcher v. Philadelphia, 382 Pa. 34, 114 A.2d 120 (1955). I join also in that portion of the Court's opinion which holds that a councilman is an "officer"

[ 411 Pa. Page 27]

    within the meaning of Section 10-107(5) of the Charter.

However, I desire to note my disagreement with the view of the majority that the suit was prematurely brought and that Defendant-Intervenor Tate did not become a "candidate" until he filed his nomination petitions. When he became a "candidate" is a question of fact to be determined by the record and not by any arbitrary test which is unrelated to what long experience and observation have demonstrated. The complaint filed on January 7, 1963, alleged that "On December 17th, 1962, James H. J. Tate announced that he was seeking the office of Mayor ... and he offered himself for said office ... and is at the present time a candidate for the office of Mayor." This well-pleaded averment was undenied and on the record presented was an undisputed fact in the court below, as it is here.*fn1 It is legally sufficient and conclusive on this factual issue. The word "candidate" in the Charter must be considered to have its usual and generally accepted campaign-for-election meaning. Cf. Commonwealth ex rel. Laughlin v. Green, 351 Pa. 170, 176, 40 A.2d 492, 494 (1945). Even if it be conceded that a "public announcement" is a prerequisite to becoming a candidate, such announcement can be accomplished in a variety of ways, depending upon the political strategy employed - by a speech, statement, advertisement, or other communication reported or appearing in public media, or by any other technique for achieving the desired political effect.

In the light of the foregoing, if we attribute to his actions their usual significance, the conclusion is inescapable capable

[ 411 Pa. Page 28]

    that Defendant-Intervenor Tate was a candidate by his choice and design long before the hour he filed his nomination petitions. His signed statement could have been no more articulate announcement of his candidacy. Prior to the date of his filing, not even the most casual observer of Philadelphia political life would have hesitated to describe him as an avowed and active candidate. For any judicial tribunal in the community (particularly one at the appellate

[EDIT ] level) to fail to recognize this obvious fact is almost incredible. A man is a candidate when "his hat is in the ring", and the record here most convincingly and unquestionably establishes that Defendant-Intervenor Tate's hat was in the ring when this proceeding was begun.

Further, I disagree with that portion of the decision of the Court which concludes that James H. J. Tate may be a candidate for Mayor without first resigning his councilmanic office and that Section 10-107(5) is not applicable to his present candidacy. To reach this result would require an interpretation which excludes an elected councilman from the explicit provisions of Section 10-107(5) of the Charter or a finding that an elected councilman (as here), when a candidate for Mayor, is not a councilman. There is nothing in the Charter or in the record or in "the well known exigencies in the circumstances here present" or "the facts and the exigencies of this unusual situation" or "the public interest"*fn2 which requires or even suggests such a result.

The Charter is a practical document designed to improve and advance the quality of local governmental operation. In seeking to attain that objective, the Charter limits the political activity of officers and employees "paid from the City Treasury."*fn3 Section 10-107(5) explicitly restricts the permitted candidacy of

[ 411 Pa. Page 29]

    an elected official to re-election to the office to which he was elected - without first resigning. No greater harm could come to the Charter than a determination which fils to recognize and apply the clear language and meaning of Section 10-107(5). Not to do so is, in reality, to rewrite the Charter and to frustrate its objective.

The record before us is clear. Appellee Tate was elected a councilman for a term which has not expired. He is not running for re-election as Mayor because he has never been elected to that office. The tenure of his office as councilman was not terminated by him and still continues. As an elected councilman, he may, during the term of his office, be a candidate for re-election only to the office of councilman. He is a candidate not for that office but for another office, and that is distinctly prohibited by Section 10-107(5) of the Charter. This conclusion is dictated by the Charter itself and is firmly supported by the record, reason and reality.

I can find no factual or legal basis or acceptable rationalization for the result reached by the majority. I would, therefore, reverse the decree so that the provisions of the Charter may be applied.

ING OPINION BY MR. JUSTICE BENJAMIN R. JONES:

I want to register my dissent from the action taken by the majority of this Court because I am convinced that (a) the conclusion reached by the majority contravenes the clear and unambiguous language, as well as the spirit, of Section 10-107(5) of the Charter of the City of Philadelphia and (b) the manner in which such conclusion is reached cannot help but undermine the confidence of the Bench, the Bar and the public in the stability of the decisions of this Court.

[ 411 Pa. Page 30]

In dismissing this taxpayer's bill in equity, the court below did so on three grounds: (1) that this action was instituted prematurely; (2) that equity lacked jurisdiction to entertain this action, quo warrantor being the sole and exclusive remedy; (3) that James H. Tate, as a candidate for election as Mayor of the City of Philadelphia, was not required by the terms of the City Charter to resign as a member of City Council. The majority of this Court, in effect, now holds, inter alia, that this action was prematurely instituted but that equity can entertain jurisdiction of this action: to that extent, the majority of this Court disagrees with the court below. Were this the sole basis for the majority ruling, in all likelihood, I would not file a dissenting opinion. While I entertain very serious doubt that

[EDIT ] equity, rather than quo warrantor, is the appropriate remedy, I believe that the exigencies of the present situation and the interests of the public demand a speedy and immediate resolution of the instant controversy on its merits.

That which impels my dissent is the action of this Court, through the medium of overruling our very recent decision in Mayer v. D'Ortona, 408 Pa. 518, 184 A.2d 582, in now holding that James H. J. Tate is not a member of the City Council and is the Mayor of the City, whereas only six months ago this Court declared on the same posture of facts that Mr. Tate was a member of the City Council and was not the Mayor, but the Acting Mayor, of the City. By its ruling, this Court now rules that Mr. Tate, as the Mayor, is not within the proscriptive provisions of Section 10-107(5) of the City Charter.

Section 10-107(5) of the Charter provides: "(5) No officer or employee of the City, except elected officers running for re-election,*fn4 shall be a candidate for

[ 411 Pa. Page 31]

... Tate would have to resign as Councilman in order to be a candidate for Mayor." With that statement I am in full accord.

However, the majority of this Court then proceeds to overrule Mayer v. D'Ortona, to change the status of Mr. Tate so recently enunciated by this Court and to declare that Mr. Tate is neither a member of Council nor the Acting Mayor but the Mayor of the City to whom the provisions of Section 10-107(5) are inapplicable. Only six months ago this Court, in a well considered opinion, determined Mr. Tate's status to be that of councilman and Acting Mayor: today, on the same set of facts, this Court completely changes Mr. Tate's status and declares him to be Mayor. With such juristic acrobatics I will have no part!

One seeks in vain in the majority opinion for any justifiable reason to overturn Mayer v. D'Ortona. Under such circumstances how can this Court reasonably expect to enjoy or retain the confidence of the Bench, the Bar and the public in the stability of its rulings? Clearly, the end does not justify the means.

An examination of the provisions of Section 10-107(5) clearly and unequivocally reveals the intent of the framers of the Charter, i.e., to prohibit an "officer" of the City from becoming a candidate for nomination or election to another public office without first resigning his then office. In my opinion, Mr. Tate clearly is a member of Council and, as such member of the Council, is an "officer" to whom the provisions of Section 10-107(5) apply and, under the provisions of that section, Mr. Tate, before becoming a candidate for nomination for the office of Mayor, was required to resign his councilmanic office. His failure to resign such office constitutes a forfeiture of that office and disqualifies him from being a candidate for the office of Mayor.


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