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COMMONWEALTH EX REL. SPECTER v. MARTIN (07/03/67)

SUPREME COURT OF PENNSYLVANIA


decided: July 3, 1967.

COMMONWEALTH EX REL. SPECTER
v.
MARTIN, APPELLANT

Appeal from judgment of Court of Common Pleas of Philadelphia County, March T., 1967, No. 1400, in case of Commonwealth ex rel. Arlen Specter, District Attorney v. Edward J. Martin, Finance Director.

COUNSEL

Edward G. Bauer, Jr., City Solicitor, with him Frank J. Pfizenmayer and Jerome R. Richter, Assistant City Solicitors, Matthew W. Bullock, Jr., Second Deputy City Solicitor, and Levy Anderson, First Deputy City Solicitor, for appellant.

Arlen Specter, District Attorney, for appellee.

Peter Hearn, with him Austin M. Lee, for Citizens' Charter Committee, amicus curiae, under Rule 65.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice O'Brien and Mr. Justice Roberts join in this opinion. Mr. Justice Eagen, for the reasons expressed in his opinion, would affirm the judgment of the court below. Mr. Justice Cohen took no part in the consideration or decision of this case. Concurring and Dissenting Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Jones

[ 426 Pa. Page 105]

The basic issue which this appeal presents, important in its consequence, is narrow in its scope: do the provisions of Article X, § 10-107(5)*fn1 of the Philadelphia

[ 426 Pa. Page 106]

Home Rule Charter*fn2 require that the District Attorney of Philadelphia, by reason of his candidacy for election as Mayor, resign?

A brief recital of the factual background of this appeal is essential. Arlen Specter was elected District Attorney of Philadelphia for a four year term, beginning the first Monday of January, 1966 and ending the first Monday of January, 1970.*fn3 While the incumbent district attorney and performing the duties and functions of that office, Specter, on March 7, 1967, became a candidate for the office of Mayor in an election to be held on November 7, 1967. Specter did not and has not resigned from the office of district attorney.

On March 11, 1967, the City Solicitor of Philadelphia wrote a letter to Edward J. Martin, Finance Director of the City, advising Martin that, when Specter became a candidate for Mayor, he was required under Article X, § 10-107(5), of the charter to resign as district attorney and that "[Specter] remains in office

[ 426 Pa. Page 107]

    illegally and [Martin] should not process any pay to [Specter] for any period subsequent to March 7, 1967." Martin complied with this directive of the city solicitor.

On March 23, 1967, Specter instituted an action of mandamus against Martin in the Court of Common Pleas No. 3 of Philadelphia County. Martin filed an answer to Specter's mandamus complaint and a motion for judgment on the pleadings.*fn4 After legal argument, Judge Charles A. Waters held that Specter was entitled to exercise the duties of district attorney, directed Martin to pay Specter forthwith his salary and denied Martin's motion for judgment on the pleadings. From that judgment Martin has appealed.

Briefly, stated, Martin contends: (1) a district attorney under Article XIV, § 1, of the Constitution of Pennsylvania was classified as a "county officer"; (2) under Article XIV § 8(1) of the Constitution all "county offices" in Philadelphia were abolished and, under Article XIV, § 8(7), all "county officers" became "officers of the city of Philadelphia"; (3) the district attorney is now an "officer of the City" and, as such, is subject to all the provisions of the charter, and, therefore, as a candidate for another public office, Specter cannot continue to occupy the office and perform the duties of district attorney since he was required to resign under Article X, § 10-107(5) of the charter.

At the outset of our determination of this appeal we must decide the propriety of a mandamus action to determine this issue.*fn5 Mandamus lies to compel the performance of a ministerial as opposed to a discretionary

[ 426 Pa. Page 108]

    duty. "The primary requisites of the action are that the plaintiff has a legal right to enforce which is specific, well defined and complete; that a corresponding positive duty rests upon the defendant; and that no other adequate, specific or appropriate remedy exists.": Francis v. Corleto, 204 Pa. Superior Ct. 280, 283, 203 A.2d 520 (1964); Garratt v. Philadelphia, 387 Pa. 442, 448, 127 A.2d 738 (1956).

This action of mandamus is by Specter who claims that, by reason of his office as the duly elected district attorney, he is entitled to receive the salary and compensation attached to such office.*fn6 The action is against Martin who, as Finance Director of Philadelphia, has the duty and authority to approve the payment of money out of the city treasury. (Charter, Article VI, §§ 6-100, 6-106). The defense interposed is that, by reason of his violation of Article X, § 10-107(5), Specter has forfeited his right to the office (Article X, § 10-109) and the right to the compensation attached to said office.

While the right to retain the office of district attorney underlies this litigation, quo warrantor, normally the action to try title to public office,*fn7 would be unavailable under the peculiar factual circumstances presently involved. Quo warrantor can be instituted to determine the title to public office only by the Attorney General, the District Attorney or a private individual who has a special interest as distinguished from the interest of the public generally: Mayer v. Hemphill, 411 Pa. 1, 6, 190 A.2d 444 (1963) and cases

[ 426 Pa. Page 109]

    therein cited. Obviously, no individual has a special, as distinguished from the public, interest in this controversy. The Attorney General, in writing, prior to any litigation, had given an opinion to Specter regarding his status and thus had committed himself and Specter, as district attorney, would literally have had to sue himself. Under such unusual and extraordinary circumstances, quo warrantor could not be resorted to in order to determine this matter. Moreover, in Mayer v. Hemphill, supra, the majority of this Court refused to pass upon the propriety of an action in equity to determine the existence of a violation of Article X, § 10-107(5) of the charter although, because of what it termed "extraordinary circumstances", it did determine the merits of the litigation.

The employment of mandamus as a remedy in this type of situation has received sanction. When we examine the position of Martin the availability of mandamus becomes evident. Martin is under a duty to approve the payment of compensation to the district attorney, such duty being a ministerial duty. However, under the legal advice given Martin upon which he acted, Martin takes the position he does not have to perform his ministerial duty because, under a legal interpretation of the charter, Specter has forfeited his right to the office. In Meadville Area School District v. Dept. of Public Instruction, 398 Pa. 496, 501, 159 A.2d 482 (1960), this Court recently said: "When public officials act in an improper manner because of an erroneous interpretation of the law under which they are functioning . . . mandamus will issue." See also: Garratt v. Philadelphia, 387 Pa. 442, 448, 127 A.2d 738 (1956). In Cain v. Stucker, 159 Pa. Superior Ct. 466, 48 A.2d 162 (1946), it was held that, where in an action to recover unpaid salary, plaintiff was obliged to establish that a decedent held title to his position as a policeman until his death, mandamus was the appropriate

[ 426 Pa. Page 110]

    action (pp. 469, 470). See also: Alberts v. Garofalo, 393 Pa. 212, 214, 142 A.2d 280 (1958); Commonwealth ex rel. Shoemaker v. Thomas, 328 Pa. 19, 23, 24, 195 A. 103 (1937); Commonwealth ex rel. v. Woodward, 95 Pa. Superior Ct. 423 (1929); Francis v. Corleto, 204 Pa. Superior Ct. 280, 283, 287-288, 203 A.2d 520 (1964).

Under the unusual circumstances herein existing, we conclude that mandamus furnishes an appropriate medium for the solution of the instant controversy.

Article XIV, § 1, of our Constitution designates eo nomine as "county officers" twelve officers; within such designation district attorneys are included. By reason of such designation, a district attorney became a "constitutional officer", i.e., the incumbent of an office expressly recognized in the Constitution: McGinley v. Scott, 401 Pa. 310, 323, 164 A.2d 424 (1960); Dauphin County Grand Jury Investigation Proceedings (No. 3), 332 Pa. 358, 362, 363, 2 A.2d 809 (1938).

Such constitutional classification of these twelve officers as "county officers" accorded recognition of their status as "public officers" and to the geographical areas within which they were to be elected and to perform their official functions and duties.*fn8

In 1951, Article XIV of the Constitution was amended by the addition thereto of § 8(1). The aim and purpose of that amendment was the integration and consolidation in Philadelphia -- where the city and county geographical areas are identical -- of county and city offices. By virtue of that amendment, the first portion of which was self-executing, "all county officers" became "city officers". That constituted what former Chief Justice Stern, in Lennox v. Clark, 372 Pa. 355, 370, 93 A.2d 834 (1953), aptly termed the first phase of the " inter city-county consolidation."

[ 426 Pa. Page 111]

By reason of such amendment, "the county offices [became] a part of the municipal government and . . . all their officers and employes [became] city officers and employes and as such bound by the provisions of the Charter concerning such officers and employes.": Lennox, supra, p. 370. However, by reason of a later provision contained in § 8(1), the " activities or functions [of the county officers were] not changed; they will operate just the same as before and continue to perform their present duties until the next stage of the project is entered upon, which is to accomplish what may be termed the intra city consolidation, that is, the reorganization or 'streamlining' of the municipal governmental structure, now enlarged by the acquisition of the former county offices. Since clause (7) of the City-County Consolidation Amendment provides that the county officers are to continue, now as city officers, to perform their duties 'until the General Assembly shall otherwise provide', it would seem that any proposed reorganizations, regroupings, abolitions or mergers, of the former county offices, designed the more advantageously to incorporate their functions into the existing municipal structure, must wait upon action by the General Assembly": Lennox, supra, p. 370. See also: Commonwealth ex rel. Truscott v. Philadelphia, 380 Pa. 367, 375, 376, 111 A.2d 136 (1955); Commonwealth ex rel. Dilworth v. Pastorius, 5th, 86 Pa. D. & C. 1, 8 (1953).

In Lennox, supra, our Court was called upon to determine the post consolidation status of the Prothonotary of the Courts of Common Pleas and the Register of Wills of Philadelphia, both of whom were designated as "county officers" under Article XIV, § 1 of the Constitution. As to the prothonotary, in view of the fact that Article V, § 7 of the Constitution specifically provided for the office of prothonotary in Philadelphia, his manner of appointment and his authority

[ 426 Pa. Page 112]

    to appoint assistants, such constitutional status led our Court to conclude that the prothonotary, even though constitutionally designated as a "county officer", did not fall within the City-County Consolidation Amendment and was not converted thereby into a "city officer". As to the register of wills, also the subject of a special provision in Article V, § 22 of the Constitution, the Court concluded that the register of wills was not, by the amendment, converted into a "city officer" and did not become subject to the charter.

The significance of the ruling in Lennox insofar as the instant appeal is concerned is that, even though the prothonotary and register of wills were constitutionally classified as "county officers", this Court, considering not only the additional references to the prothonotary and register of wills in the Constitution but also their functions and duties and the nexus between such officers and the judiciary, held that such officers, despite their constitutional classification as "county officers", were not converted into "city officers" subject to the Charter. Other than in Article XIV, § 1, the office of district attorney was not specifically mentioned in the Constitution and, therefore, in that respect Lennox is distinguishable. However, Lennox (supra, p. 372) laid great stress on the fact that the office of prothonotary was an arm of the judiciary and the register of wills was a quasi-judicial officer and that functions of both offices were not within the scope of municipal government and municipal affairs.

Logically, the office of district attorney is of such nature that it should not fall within the scope and impact of the "City-County Consolidation Amendment". The affairs and functions of municipal government are foreign to the functions of a district attorney whose duties are performed not on behalf of the City but on behalf of the Commonwealth. That the district attorney

[ 426 Pa. Page 113]

    is elected by the voters of the City, that in the performance of his duties he is confined to the geographical area of the city and that he is paid from city funds do not make him a "city officer" since his duties and functions are not concerned with city affairs. The mere fact of constitutional classification of district attorney as a "county officer" per se should not be controlling any more than it was in Lennox. It is clear that when the framers of Article XIV, § 1 referred to district attorneys as "county officers" they did so in description of the geographical area in which they were to perform their functions as opposed to those officers whose functions are performed on a statewide basis. District attorneys do not perform their duties on behalf of either a county or city; representation of counties in county affairs is by a county solicitor and representation of the City of Philadelphia is by the City Solicitor and its Law Department.*fn9

Actually, the District Attorney of Philadelphia does not perform any municipal functions and his duties involve only his representation of the Commonwealth. The fact that some city officers may perform some duties on behalf of the Commonwealth and still be classified as city officers does not affect the status of the district attorney; all of the duties of the district attorney are performed on behalf of the Commonwealth.

[ 426 Pa. Page 114]

In the performance of his duties, the district attorney acts in a quasi-judicial capacity. In Commonwealth Page 114} ex rel. Davis v. Reid, 338 Pa. 351, 352, 12 A.2d 909 (1940), this Court stated: "The duties of the District Attorney in such a proceeding as is here involved [mandamus proceeding] are judicial. . . ." (p. 352). Moreover, time and again, this Court has stated that the district attorney is a quasi-judicial officer: Commonwealth v. Nicely, 130 Pa. 261, 270, 18 A. 737 (1889); Snyder's Case, 301 Pa. 276, 288, 152 A. 33 (1930); Commonwealth v. Cicere, 282 Pa. 492, 495, 128 A. 446 (1925); Commonwealth v. Kettering, 180 Pa. Superior Ct. 247, 254, 119 A.2d 580 (1956). Like the Prothonotary and the Register of Wills, the office of District Attorney is part and parcel of the judicial system and performs an important function in the administration of justice. Moreover, in the performance of his duties, the law grants to the district attorney wide discretion in the exercise of which he acts in a judicial capacity. See: 103 University of Pennsylvania Law Review, p. 1057 et seq.

In Commonwealth ex rel. Specter v. Freed, 424 Pa. 508, 517, 228 A.2d 382 (1967) we said: "Further support for the conclusion that the designation of an official as a 'county officer' in Article XIV, § 1 of the Constitution does not, by virtue of Article XIV, § 8 make him subject to the Charter in all respects, is provided by the decision of our Court in Lennox v. Clark, 372 Pa. 355, 93 A.2d 834 (1953). There we held that despite the designation of the prothonotary and register of wills as 'county officers' in Article XIV, § 1, the adoption of Article XIV, § 8 did not convert them into city officers for purposes of making their employees subject to the civil service provisions of the Charter. While this conclusion was based on a reason somewhat distinguishable from the instant case, Lennox does indicate that this Court has on a previous occasion eschewed a literal and insensitive interpretation of the designation 'county officer' in Article XIV of the Constitution.

[ 426 Pa. Page 115]

Moreover, the decision in Lennox is particularly pertinent since we there held that what at first seemed to be the alteration in the character of the offices of prothonotary and register of wills by constitutional language adopted in 1951 had not in fact occurred in light of a careful consideration of the language of Article V, adopted in 1874". In Freed, three members of this Court concluded that the District Attorney of Philadelphia was not a "city officer" and not subject to the Charter provisions. With that conclusion we agree.

A reading of the constitutional designation of "county officers" in the light of Lennox, an examination of the functions of the district attorney which are completely divorced from the municipal functions of the city government, a recognition of the nexus between the duties of the district attorney and the judiciary and the fact that the district attorney acts in a quasi-judicial capacity and a construction of Article XIV, § 1 in the light of what we believe to have been the intent of the framers of the Constitution led to the conclusion that the District Attorney of Philadelphia did not become subject to the charter by reason of Article XIV, §§ 8(1) and 8(7).

Even if we assume that Article XIV, § 1, of the Constitution which designated a district attorney as a "county officer" is controlling and that, under Article XIV, § 8, the District Attorney of Philadelphia has now become a "city officer" subject to the charter provisions, Article X, §§ 10-107(5) and 10-109 cannot be applied constitutionally to the District Attorney of Philadelphia. In pertinent part, Article VI, § 7 of the Constitution (adopted May 17, 1966) provides: "All civil officers shall hold their offices on the condition that they behave themselves well while in office, and shall be removed on conviction of misbehavior in office or of any infamous crime. . . . All civil officers

[ 426 Pa. Page 116]

    elected by the people, [with certain exceptions not presently relative], shall be removed by the Governor for reasonable cause, after due notice and full hearing, on the address of two-thirds of the Senate." As an elected constitutional officer, under Article VI, § 7, a district attorney may be removed from office in only two ways: (1) upon conviction of misbehavior in office or any infamous crime or (2) by the Governor, for reasonable cause after impeachment by two-thirds of the Senate.

Illustrative of the removal method contemplated in the first sentence of Article VI, § 7, supra, is the Act of March 31, 1860, P. L. 382, §§ 17 and 18, 16 P.S. §§ 7711, 7712.*fn10 Section 17 of that statute provides that a district attorney, who wilfully and corruptly demands, takes or receives a fee or reward other than prescribed by law for his official duties or who is wilfully and grossly negligent in the execution of the duties of his office, may be found guilty of a misdemeanor in office; upon conviction thereof, he becomes subject to payment of a fine not exceeding $1,000 and imprisonment not exceeding one year and "his said office shall be declared vacant." Section 18 of the same statute provides that a district attorney, who is charged with any crime or with wilful and gross negligence in the execution of his official duties, shall be supplanted by the court and a competent attorney shall be appointed to prepare an indictment against and to prosecute the district attorney; if the district attorney is convicted of any crime for which he may be sentenced to imprisonment by separate or solitary confinement at labor, then "his said office shall be declared vacant by the court passing such sentence."

Under the third sentence of Article VI, § 7, an elected official, such as a district attorney, can be removed

[ 426 Pa. Page 117]

    only by the Governor: (a) for reasonable cause and (b) even then, only after a hearing and impeachment by a vote of two-thirds of the Senate.

It is basic and fundamental in our jurisprudence that a constitutional direction as to how a thing is to be done is exclusive and prohibitory of any other method which the legislature may deem better or more convenient. In Bowman's Case, 225 Pa. 364, 367, 368, 74 A. 203 (1909) this Court said: "The condition upon which all officers shall hold their offices, whether conferred by appointment or secured by election, is good behavior. Removal is the penalty for misbehavior. This is the substance and meaning of the first sentence of the fourth section [of the former Article VI]. All officers are either appointed or elected, and the second sentence of the section provides that those appointed, other than judges of the courts of record and the superintendent of public instruction, may be removed at the pleasure of the appointing power. This sentence is not involved in the determination of the question before us, but the last is, for it declares that all officers elected by the people, not within the exceptions, 'shall be removed by the Governor for reasonable cause, after due notice and full hearing, on the address of two-thirds of the Senate.' Here is a distinct constitutional expression, and there can be no debate as to the validity of any legislation repugnant to it: Commonwealth v. Moir, 199 Pa. 534. Whether the words, 'all officers elected by the people,' include officers elected to fill purely statutory offices created by the legislature and by it to be abolished at will is not a question now calling for a decision from us. What we are to decide is whether a constitutional officer, whose office the legislature did not create, and which it cannot abolish, may be removed in any other way than that pointed out in the constitution for the removal of officers elected by the people. Clearly there is but

[ 426 Pa. Page 118]

    one answer to this. A constitutional direction as to how a thing is to be done is exclusive and prohibitory of any other mode which the legislature may deem better or more convenient. As the people have spoken directly in adopting their organic law, their representatives in general assembly met are at all times bound in undertaking to act for them, and what is forbidden, either expressly or by necessary implication, in the constitution cannot become a law." See also: Commonwealth of Pennsylvania v. Reid, 265 Pa. 328, 333, 334, 108 A. 829 (1919); Commonwealth ex rel. Attorney General v. Benn, 284 Pa. 421, 428, 131 A. 253 (1925); Snyder's Case, 301 Pa. 276, 288, 152 A. 33 (1930); McGinley v. Scott, 401 Pa. 310, 323, 164 A.2d 424 (1960); Commonwealth ex rel. Smillie v. McElwee, 327 Pa. 148, 159, 193 A. 628 (1937); Dauphin County Grand Jury Investigation Proceedings (No. 3), 332 Pa. 358, 373, 2 A.2d 809 (1938).

[ 426 Pa. Page 119]

A district attorney, as well as all other public officers, may be removed under Article VI, § 7, upon a conviction "'of misbehavior in office or of any infamous crime' by a sentence of a court and it is not necessary in such instances to resort to the impeachment or the Senatorial address process prescribed by the Constitution." Commonwealth v. Knox, 172 Pa. Superior Ct. 510, 523, 94 A.2d 128 (1953). Martin argues that, if Specter refuses to resign as district attorney and continues as a candidate for Mayor, "then . . . he would be guilty of misbehavior in office" and subject to removal under Article VI, § 7. The answer to that is two-fold: (a) the statutory law as to malfeasance or misfeasance of a district attorney in a first class county (Act of 1860, supra) does not encompass a violation of Article X, § 10-107(5) of the charter and, aside from such statutory law, Specter's refusal to resign as district attorney would not under our case law constitute "misbehavior in office". See: Commonwealth Page 119} ex rel. Duff v. Keenan, 347 Pa. 574, 583, 584 (footnote 4), 33 A.2d 244 (1943); Commonwealth v. Green, 205 Pa. Superior Ct. 539, 546, 211 A.2d 5 (1965); Commonwealth v. Evans, 190 Pa. Superior Ct. 179, 225, 154 A.2d 57 (1959); Commonwealth v. Knox, supra, 522, 523; (b) even if a violation of Article X, § 10-107(5) be considered "misbehavior in office" or an "infamous crime", the Constitution provides for removal of the elected officer only upon conviction thereof whereas Article X, § 10-109 provides for removal from office without any requirement of a conviction. If dependence is placed by Martin upon the first sentence of Article VI, § 7 of the Constitution as grounds to remove Specter such dependence is unsupported factually or legally. Article X, § 10-109 clearly offends the Constitution if it contemplates removal from office for "misbehavior in office" since it provides for removal without the necessity of a conviction.

Although Martin concedes that this "Court's decision in Com. ex rel. Truscott v. Philadelphia, 380 Pa. 367 [111 A.2d 136] (1955), would suggest that, in the absence of action by the General Assembly giving the City control over the District Attorney's office, his removal would be governed by Article VI, § 7 of the Constitution",*fn11 he contends that this Court need not reach the removal procedures. Such contention completely ignores the clear, unambiguous and unequivocal language of Article X, §§ 10-107(5) and 10-109 of the charter. The former section mandates that an officer of the city who becomes a candidate for another public office "shall have first*fn12 resigned" from his office. Section 10-107(5) must be strictly construed and this Court has construed the phrase "shall be a candidate for nomination or election" to mean "filing nomination

[ 426 Pa. Page 120]

    papers or publicly announcing one's candidacy for such office" (Mayer v. Hemphill, 411 Pa. 1, 14-16, 190 A.2d 444 (1963). Admittedly Specter, on March 7, 1967, became a candidate for Mayor under Mayer without first resigning as district attorney and, if § 10-107(5) is applicable to him, then he has clearly violated its mandate. Immediately upon such violation Specter became liable for the penalties prescribed in Article X, §§ 10-107(5) and 10-109, one of which penalties -- unrelated under the language of the charter -- was removal from his office. The removal procedures provided by the statute must be met by this Court because, if § 10-107(5) is applicable to Specter, his removal would inexorably follow.

According to the charter provision the status of a statute, we must presume that it was not intended to violate the provisions of our Constitution. If the district attorney is subject to § 10-107(5), then upon a violation thereof he becomes liable to removal from his office by a method offensive to the constitutionally ordained exclusive methods of removal of a constitutional officer. Removal from office under Article X, § 10-109 for a violation of § 10-107(5) -- automatic in nature and without opportunity for a hearing -- provides a new and novel method of removal clearly violative of the provisions of Article VI, § 7 of our Constitution. If such Charter provisions are applicable to the District Attorney of Philadelphia, they are constitutionally invalid. We conclude that the framers of this Charter did not contemplate the application of these charter provisions to the office of district attorney, an application which would clearly violate our Constitution.

In summary, we conclude: (1) that the District Attorney of Philadelphia is not an officer of the City of Philadelphia so as to subject him to the provisions of Article X, § 10-107(5) of the Charter; (2) that, if

[ 426 Pa. Page 121]

Article X, §§ 10-107(5) and 10-109 are applicable to the District Attorney, the removal provisions of Article X, § 10-109 clearly offend Article VI, § 7 of the Constitution.

Judgment affirmed.

Disposition

Judgment affirmed.

[EDIT ] Concurring and Dissenting Opinion by Mr. Justice Eagen:

The prime issue before the court below in this action of mandamus was whether or not Arlen Specter, the District Attorney of Philadelphia, was and is entitled to receive the salary of that office as fixed by the legislature of the Commonwealth. Of course, it is the de jure holder of that office who is entitled to the emoluments thereof, and whether or not Specter was such had to be resolved as a threshold question. Admittedly, on November 2, 1965, he was elected to the office for a term of four years and continues to hold the office under that mandate. Assuming arguendo, that he is subject to the provisions of the Philadelphia Home Rule Charter and has violated § 10-107(5) thereof, I still cannot see how the finance director of the city has the power or authority to declare Specter has forfeited title to the office and is not still the de jure holder thereof.*fn1 Absent such authority,

[ 426 Pa. Page 122]

    any attempt to so declare would have no legal effect. Hence, Specter is still the de jure district attorney of Philadelphia and is entitled to the relief he sought in this action, namely, payment of the salary incident to the office. Therefore, regardless of all other considerations, the action of the lower court in this respect should be affirmed.

In view of the above, the question of Specter's removal from office is not before us, although I am inclined to agree with my Brother Jones that a district attorney can only be removed from office as the Constitution prescribes.

Hence, whether or not Specter, as District Attorney of Philadelphia, is subject to the provisions of the Philadelphia Home Rule Charter and particularly § 10-107(5) is a distinct and separate question.*fn2 While I have definite reservations as to the correctness of raising this question in this mandamus action, or the propriety of the court below or this Court in reaching it, I can still understand why, under the circumstances, it has been deemed necessary of resolution.

It is my personal conclusion that Specter, as District Attorney of Philadelphia, is within and subject to the provisions of the Philadelphia Home Rule Charter, particularly § 10-107(5). This does not mean that any municipal authority may interfere with, curtail or enlarge upon the functions or powers of the office, for this is solely within the prerogative of the legislature. As I pointed out in my concurring opinion in Commonwealth ex rel. Specter v. Freed, 424 Pa. 508, 521-522, 228 A.2d 382, 387 (1967), the powers and functions of the office have been defined by proper legislative enactment, and under the Act of April 21, 1949, P. L. 665, § 18(b), 53 P.S. § 13133(b), pursuant to which

[ 426 Pa. Page 123]

    the Philadelphia Home Rule Charter was adopted, the city is specifically precluded from limiting or enlarging upon these powers or functions. However, § 10-107(5) has nothing to do with the powers or functions of the office. It affects only Specter's conduct outside and beyond his official functions.

[EDIT ] Dissenting Opinion by Mr. Chief Justice Bell:

Quo warrantor is the proper remedy in this case and Specter's opponent has a standing to bring such a suit, even if the Attorney General of Pennsylvania or any other appropriate Public authority will not. In Mayer v. Hemphill, 411 Pa. 1, 190 A.2d 444, the Court said (page 6): "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*fn3 as distinguished from the right or interest of the public generally, or has been specially damaged.*fn4 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.

[ 426 Pa. Page 124]

    also Dorris v. Lloyd (No. 1), 375 Pa. 474, 100 A.2d 924." Accord: Hughes v. 11th Ward Republican Club, 389 Pa. 103, 132 A.2d 681.

This was an action of mandamus to compel the Finance Director of Philadelphia to approve the payment of Specter's salary as District Attorney, after he had announced his candidacy for Mayor of Philadelphia and failed to resign. This case is moot because all parties agreed (and so stated at their oral argument before this Court) that Specter had been paid and is receiving his salary. However, the issue of whether Specter is compelled by the Constitution or by the Philadelphia Home Rule Charter to resign is of such tremendous public importance that I agree with the rest of the Court and with the request of all parties concerned that this important issue should be decided forthwith by this Court. I shall therefore assume, arguendo, that mandamus is an appropriate action and will presently lie.

I regret to say that the Majority have ignored the language and the spirit of Philadelphia's Home Rule Charter; and far worse, they have ignored the clear and mandatory language of the Constitution of Pennsylvania.

The Constitution Makes Specter a City Officer

The Constitution of Pennsylvania, in language which is crystal clear, states that District Attorneys are County -- not State -- officers, and in Philadelphia are now City -- not State -- officers, and no wishful thinking nor any procrustean stretch can alter or change or nullify this clear language.

The Constitution of Pennsylvania of 1874 provided in Article XIV: "Section 1. County officers shall consist of sheriffs, coroners, prothonotaries, registers of wills, recorders of deeds, commissioners, treasurers,

[ 426 Pa. Page 125]

    surveyors, auditors or controllers, clerks of the courts, district attorneys and such others as may from time to time be established by law; . . ."

Pursuant to the enabling Act of April 21, 1949, P. L. 665, the people of Philadelphia adopted on April 17, 1951, a Home Rule Charter, effective January 7, 1952. In the meantime, the people of Pennsylvania adopted on November 6, 1951 -- effective immediately upon its adoption -- an amendment to Article XIV of the Constitution by adding thereto Section 8, which pertinently provides: "§ 8. City and county of Philadelphia; consolidation of governmental functions; county officers abolished.

(1) In Philadelphia all county offices are hereby abolished, and the city shall henceforth perform all functions of county government within its area through officers selected in such manner as may be provided by law.

"(3) All laws applicable to the county of Philadelphia shall apply to the city of Philadelphia.

"(7) Upon adoption of this amendment all county officers shall become officers of the City of Philadelphia, and, until the General Assembly shall otherwise provide, shall continue to perform their duties and be elected, appointed, compensated and organized*fn5 in such manner as may be provided by the provisions of this Constitution and the laws of the Commonwealth in effect at the time this amendment becomes effective, . . ."

This Constitutional amendment in the clearest imaginable language specifically provided that "upon adoption of this amendment all county officers shall become officers of the City of Philadelphia."

[ 426 Pa. Page 126]

No superficial or farfetched reasoning can evade or circumvent or alter the aforesaid crystal clear and mandatory language of the Constitution, or (as we shall see) the prior decisions of this Court which accurately construed and reaffirmed the clear language of the Constitution.

The Philadelphia Home Rule Charter Governs Specter and Requires Him To Resign

The Philadelphia Home Rule Charter provides in § 10-107(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."*fn6

The reason for this provision in re resignation is obvious. Such an officer would be in a position to unduly influence and to intimidate employees under his supervision, and might often neglect his official duties in the interest of his candidacy. If Specter is a City officer he must, without the slightest doubt, resign from his office of District Attorney.

The leading case interpreting the Constitutional Amendment and the Philadelphia Home Rule Charter as to who came within its provisions is Lennox v. Clark, 372 Pa. 355, 93 A.2d 834. In that case, the Court held that neither the Prothonotary nor the Register of Wills came within the Philadelphia Home Rule Charter for each of two reasons: First, the Prothonotary came within the specific provisions of Article V, § 7 of the Constitution and the Register of Wills came within the specific provisions of Article V, § 22 of the Constitution, and if there be any confusion overlapping

[ 426 Pa. Page 127]

    or conflict between a special and a general provision of the Constitution (or of an Act or of a written instrument), the special or specific Constitutional provision prevails. Waits' Estate, 336 Pa. 151, 154, 7 A.2d 329; Philadelphia v. Commonwealth, 270 Pa. 353, 358, 113 A. 661; Buckley v. Holmes, 259 Pa. 176, 188, 102 A. 497; Commonwealth v. Kline, 294 Pa. 562, 567, 144 A. 750; Endlich, Interpretation of Statutes, § 216.

The second reason was that both the Prothonotary and the Register of Wills are part and parcel of the Judiciary and for this additional reason were not intended to come and did not fall within the general Articles of the Constitution as distinguished from the Judiciary Article. The Court in Lennox v. Clark, 372 Pa., supra, pertinently said (page 366): "Its real and designed result was that, when the former county officers became city officers and the former county employes city employes, they automatically became subject thereby to the laws then in effect governing and regulating city officers and employes, and also, of course, to any such laws as might thereafter become effective: (cf. Davis v. Carbon County, 369 Pa. 322, 330, 85 A.2d 862, 867).

"What, then were the laws applicable to the particular questions here involved that were in force on November 6, 1951, when, by virtue of the adoption of the City-County Constitutional Amendment, the county officers and employes became officers and employes of the city?"

With reference to the contention that the Sheriff and several other County officers were in reality Commonwealth officers, the Court further stated (page 369): "Some point has been made of the fact that the former county officers in a few instances performed certain duties on behalf of the Commonwealth and to that extent were acting in the capacity of an

[ 426 Pa. Page 128]

    officer, agent or employe of the State:*fn7 Philadelphia v. Martin, 125 Pa. 583, 17 A. 507; Knisely v. Cotterel, 196 Pa. 614, 633, 46 A. 861, 864; Philadelphia v. McMichael, 208 Pa. 297, 57 A. 705; Luzerne County v. Morgan, 263 Pa. 458, 107 A. 17. However, just as the rendition of that service did not militate against their general status as county officers, so now its continued rendition does not conflict with their general status as city officers." [Italics in original Opinion]

However, none of the aforesaid provisions of the Constitution, nor any relevant and applicable authority, nor sound reasoning can make a District Attorney of Philadelphia a Commonwealth officer as distinguished from a City officer, or exempt or exclude him from the aforesaid provisions of the Constitution or from the Home Rule Charter. Unlike a Prothonotary of the Court, and unlike a Register of Wills who is a probate Judge, each of whom is particularly and specifically provided for in the Constitution under the Judiciary Article, namely, Article V, as well as in the general Article XIV, § 1, the District Attorney is mentioned only once in the Constitution, namely, Article XIV, § 1,*fn8 and in that one instance he is clearly stated to be, as hereinabove quoted, a County (now a City) officer.

[ 426 Pa. Page 129]

Moreover, the District Attorney of Philadelphia is not a Judicial officer, but is merely, figuratively speaking, a quasi-Judicial officer. The District Attorney of Philadelphia (1) is elected, and (2) is paid -- not by the Commonwealth but -- by the people of Philadelphia, and (3) his essential and principal and most important powers, functions, duties, limitations and boundaries involve only crimes committed, not throughout the Commonwealth, but only in the City of Philadelphia.

Furthermore, Specter now takes a position (with which three members of this Court agree), diametrically opposite to the position which he (impliedly and necessarily) took in his brief and in his oral argument in Com. ex rel. Specter v. Freed, 424 Pa. 508, 228 A.2d 382. In the Freed case, Specter contended that he had, as District Attorney of Philadelphia, a power of subpoena of magistrates, not under any Act of Assembly and not as a Commonwealth officer, but solely under § 8-409 of the Philadelphia Home Rule Charter,*fn9 which gave him that power as an officer of the City of Philadelphia. How, then, can he now contend that he is a Commonwealth officer which would give him no such power?

[ 426 Pa. Page 130]

Furthermore, the question of removal of the District Attorney of Philadelphia under Article VI § 7 of the Constitution (1) is inapplicable to a County or City officer, and (2) in any event does not support the majority's conclusion that Philadelphia's District Attorney thereby became a Commonwealth officer. If this Constitutional provision of removal is applicable to a Philadelphia officer, i.e., the District Attorney, then it is equally applicable to every County and every Page 130} City and every Borough and every Township elected civil officer in the Commonwealth, -- an interpretation which is so strained and unrealistic as to be ridiculous. This is further clear from Article VI (which we shall subsequently quote at length) and other provisions of the Constitution which provide (as, for example, the provision in re. the Prothonotary of Philadelphia) how such office-holder can be removed.

Article VI of the Pennsylvania Constitution, which amended and consolidated Articles VI, VII and XII into a single Article VI, was adopted by the people of Pennsylvania on May 17, 1966 and pertinently provides:

" Section 4. Power of Impeachment. -- The House of Representatives shall have the sole power of impeachment.

" Section 5. Trial of Impeachments. -- All impeachments shall be tried by the Senate. When sitting for that purpose the Senators shall be upon oath or affirmation. No person shall be convicted without the concurrence of two-thirds of the members present.

" Section 6. Officers Liable to Impeachment. -- The Governor and all other civil officers shall be liable to impeachment for any misbehavior in office, but judgment in such cases shall not extend further than to removal from office and disqualification to hold any office of trust or profit under this Commonwealth. The person accused, whether convicted or acquitted, shall nevertheless be liable to indictment, trial, judgment and punishment according to law.

" Section 7. Removal of Civil Officers. -- All civil officers shall hold their offices on the condition that they behave themselves well while in office, and shall be removed on conviction of misbehavior in office or of any infamous crime. Appointed civil officers, other than judges of the courts of record, may be removed at the pleasure of the power by which they shall have

[ 426 Pa. Page 131]

    been appointed. All civil officers elected by the people, except the Governor, the Lieutenant Governor, members of the General Assembly and judges of the courts of record, shall be removed by the Governor for reasonable cause, after due notice and full hearing, on the address of two-thirds of the Senate."

I believe that the removal of the District Attorney of Philadelphia and the penalties imposable upon him are specifically provided for in and governed by Article X, § 10-107(6) and § 10-109, of the Philadelphia Home Rule Charter. Even if we assume arguendo that Article VI of the Constitution, as amended in 1966, providing for impeachment and for removal of officers, is applicable, Article X, § 10-107(5) and § 10-109 of the Charter are both applicable and Constitutional. However, in no event, even by the wildest stretch, can the above quoted provisions of Article VI of the Constitution change and transform the District Attorney of Philadelphia from a City officer into a Commonwealth officer.

For each and all of these reasons, I dissent.


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