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

April 26, 1963


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.


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]


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 ...

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