Appeal from order of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1964, No. 1944, in case of City of Philadelphia v. Leon Sacks, Donald C. Rubel and Charles W. Sweeney.
Levy Anderson, First Deputy City Solicitor, with him William G. Klenk, II, Assistant City Solicitor, Matthew W. Bullock, Jr., Deputy City Solicitor, and Edward G. Bauer, Jr., City Solicitor, for City of Philadelphia, appellant.
Thomas A. Masterson, with him Gregory M. Harvey, and Morgan, Lewis & Bockius, for appellee.
Edward R. Becker, with him Stanley M. Greenberg, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell.
The City of Philadelphia appeals from a final Order of the Court below which dismissed the City's petition for a declaratory judgment because a quo warrantor proceeding had been brought by the Attorney General in the Commonwealth Court in Dauphin County to determine the basic questions which the City sought to raise in its suit. The City, asserting that the Court's denial of its petition for a declaratory judgment raised a question of jurisdiction, took this appeal under the Act of March 5, 1925, P. L. 23, 12 P.S. § 672.
Section 3(b) of the First Class City Permanent Registration Act of March 30, 1937, P. L. 115, 25 P.S. § 623-3(b), is as follows: "(b) The registration commission shall consist of five commissioners . . . who shall be appointed by the Governor, with the advice and consent of the Senate,*fn* and shall hold office for terms of four years, or until their successors qualify, unless sooner removed or otherwise disqualified: [with a proviso which is not relevant]."
At the end of the year 1964, the Registration Commission of the City of Philadelphia was composed of Messrs. Hamilton, Sacks, Salkind, Schmidt and
Sweeney. According to their respective commissions, the term of each of them was to expire on Wednesday, January 6, 1965. Sacks was then Chairman of the Commission and was serving out his fourth term. On each of the commissions issued to him, his term was stated to expire on January 6th. Schluraff v. Rzymek, 417 Pa. 144, 208 A.2d 239, holds that every person appointed for a fixed term may be removed by the appointing power at will and without cause.
On December 29, 1964, the Governor of Pennsylvania (1) appointed Donald C. Rubel a Registration Commissioner in the place of Sacks, and (2) reappointed the other four members of the existing Commission. By the provisions of each of said appointments, each of said Commissioners was to serve a term commencing January 5, 1965 and ending with the expiration of the next ensuing session of the Senate. On January 5, 1965, (a) the 1965 Session of the Pennsylvania Legislature commenced; (b) Rubel took his oath of office as a Commissioner, and (c) at a meeting convened by Sweeney and attended only by Messrs. Rubel, Hamilton and himself, Sweeney was elected Chairman.
The City Solicitor of Philadelphia advised Sacks by written Opinion that the Governor's appointment of Rubel was invalid, and that Sacks' term of office continued to run until a substitute Commissioner was ...