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decided: July 3, 1967.


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.


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 ...

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