Appeal from judgment of Court of Common Pleas No. 5 of Philadelphia County, March T., 1966, No. 2082, in case of City of Philadelphia and Paul D'Ortona, President of City Council v. Alexander Hemphill, City Controller.
Alexander Hemphill, appellant, in propria persona, with him Gilbert Stein.
Edward G. Bauer, Jr., City Solicitor, with him Levy Anderson, First Deputy City Solicitor, and Matthew W. Bullock, Jr., Second Deputy City Solicitor, for appellees.
William T. Coleman, Jr., with him Robert W. Maris, and Dilworth, Paxson, Kalish, Kohn & Dilks, for amicus curiae.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Dissenting Opinion by Mr. Chief Justice Bell. Mr. Justice Roberts joins in this Dissenting Opinion.
Dissenting Opinion by Mr. Chief Justice Bell:
It is unfortunate that this question and issue were not amicably resolved by the parties and the doubts and fears of the Controller, as to whether the proposed loan was for "capital" expenditures, removed. With a little give and take, this could easily have been done.
The Act of June 25, 1919, P. L. 581, as amended, July 11, 1923, 53 P.S. 12558, pertinently provides: "It shall be lawful for such city to borrow money or incur debt, in accordance with the terms of existing law, for the purpose of acquiring property, erecting buildings, . . . . or for any other improvements of a permanent or a temporary kind, or for capital outlay of any kind: . . . Provided, That all of the such proposed expenditures . . . are certified to the Council by the city controller to be capital expenditures as distinguished from current expenses, prior to the authorization of such debt . . . The certificate of the city controller shall be final and conclusive as to the character of the proposed expenditures. . . ."
It is crystal clear that the statute gives the Controller discretion to determine whether proposed expenditures are "capital" expenditures as distinguished from current expenditures, and further provides that the Controller's certificate shall be final and conclusive as to the character of the proposed expenditures. ...