Appeal from order of Court of Common Pleas No. 2 of Philadelphia County, June T., 1966, No. 7131, in case of Commonwealth ex rel. Arlen Specter, District Attorney, Matthew F. Coppolino, David P. Trulli et al. v. Paul D'Ortona, President of City Council.
Edward R. Becker, with him L. Carter Anderson, Ellis A. Horwitz, Herbert W. Salus, Jr., William A. Meehan, and Becker & Becker, for appellants.
Levy Anderson, First Deputy City Solicitor, with him Jerome R. Richter, Assistant City Solicitor, and Edward G. Bauer, Jr., City Solicitor, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Roberts.
Emanuel Weinberg, a Councilman representing the First Councilmanic District of Philadelphia, died July 20, 1966, leaving a vacancy in that office.
The District Attorney of Philadelphia and several residents and voters of the aforesaid First Councilmanic
District, brought an action of mandamus to compel the President of City Council to order an election to fill the vacancy at the next General Election on November 8, 1966.
The lower Court dismissed the suit, holding that under § 2-101 of the Philadelphia Home Rule Charter, the President of City Council may in his discretion order the election at the next General Election or at the next Primary or the next Municipal Election.
Appellants contend, on the other hand, that the President of City Council has a mandatory duty to order the election at the next General Election, or at the next Primary Election or the next Municipal Election, whichever event first occurs, provided it is not less than thirty days after the issuance of the writ.
The pertinent language of § 2-101 is as follows: ". . . Should a vacancy occur in the office of any councilman, the President of the Council shall*fn* issue a writ of election to the board of elections having jurisdiction over elections in the City for a special election to fill the vacancy for the balance of the unexpired term, which election shall be held on a date specified in the writ, but not less than thirty days after its issuance. The President of Council may fix as the date of the special election, the date of the next primary, municipal or general election."
In other words, the Philadelphia Home Rule Charter, in § 2-101, imposes upon the President of City Council a mandatory duty -- not a discretionary duty -- to issue a writ for a special election to "be held on a date specified in the writ but not less than thirty days after its issuance." However, the Charter, in the very next sentence, provides that "The President of Council may [not shall] ...