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decided: July 3, 1967.


426 Pa. 102.

Opinion by Mr. Justice Musmanno.

Author: Musmanno

[ 426 Pa. Page 131]

Opinion by Mr. Justice Musmanno:

The Court in this case is evenly divided on the question as to whether Arlen Specter must or must not resign under § 10-107(5) of the Philadelphia Charter. Justices Jones, O'Brien and Roberts have voted that Arlen Specter is not a city officer and that, therefore, he is not required to resign as District Attorney in order to continue his candidacy for the office of Mayor of Philadelphia. To the contrary, Chief Justice Bell, Justice Eagen and I have voted that Arlen Specter is a City officer and that he is bound by § 10-107(5), requiring him to resign as District Attorney if he continues as candidate for Mayor.

Justice Jones begins his Opinion with the statement: "The basic issue which this appeal presents,

[ 426 Pa. Page 132]

    important in its consequence, is narrow in its scope: do the provisions of Article X, § 10-107(5) of the Philadelphia Home Rule Charter require that the District Attorney of Philadelphia, by reason of his candidacy for election as Mayor, resign ?" (Emphasis supplied.)

In view of that precise, definitive statement of the issue, and in view of the vote 3 to 3 on that issue, I respectfully submit that Chief Justice Bell errs in calling his opinion a dissenting opinion. It is not a dissenting opinion because there is no majority opinion. Justice Jones' opinion, as I point out later, is not the majority opinion and he does not so indicate that it is the majority opinion. I respectfully object also to Justice Eagen entitling his opinion a concurring and dissenting opinion because, I repeat, there is no Majority Opinion. How can there be a majority when 6 people are divided 3 to 3? Justice Eagen specifically states in his Opinion:

"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). (Emphasis supplied.)

Justice Eagen, therefore, states in the clearest language possible that Mr. Specter is bound by § 10-107(5), and that he cannot both hold the office of District Attorney and at the same time be a candidate for Mayor of Philadelphia.

And now I proceed to a discussion of the issue in this case, as stated by Justice Jones, namely, shall the District Attorney be compelled to resign his office as District Attorney if he continues his candidacy as Mayor?

On November 21, 1966, Arlen Specter, as District Attorney of Philadelphia, came into the Supreme Court of Pennsylvania and asked this Court to declare him a city officer under the Philadelphia Home Rule Charter. He stated that under the charter he would have subpoena jurisdiction which, in the form he requested

[ 426 Pa. Page 133]

    it, could well involve an all-enveloping absolutist power unknown in any country outside of a police state.*fn1

On May 2, 1967, Mr. Specter again came into the Supreme Court and, this time, asked the Court to declare that he was not a city officer and, therefore, did not come under the city charter.

Why this change? On March 7, 1967, Arlen Specter became a candidate for the office of Mayor of Philadelphia and he now wished to be divorced from the city charter, which he had so ardently wedded in word and spirit in November, 1966. It cannot be doubted that this 180-degree turn, this switch in direction, this metamorphosis from a would-be city officer to a would-be state officer, was dictated for reasons of political advantage because if Mr. Specter's wishes of November 21, 1966, had attained fulfillment he would be compelled, under the city charter, to resign as District Attorney in order to be a candidate for Mayor of Philadelphia.

The City Solicitor of Philadelphia filed an official opinion in which he affirmed Arlen Specter to be a city officer and, since Specter refused to resign as specified by the charter, being now a candidate for Mayor, the city solicitor directed the Finance Director of Philadelphia to discontinue Arlen Specter's salary as District Attorney. Mr. Specter filed a complaint in mandamus in the court of common pleas to compel the Finance Director to pay him his salary. The court of common pleas decreed that Specter was entitled to his salary on the basis that he was a State officer and, therefore, not bound by the city charter. The City of Philadelphia appealed.

There is only one question in this case and that is: Is Arlen Specter, District Attorney of Philadelphia, a city officer and thus required by the city charter, to

[ 426 Pa. Page 134]

    resign as District Attorney in order to continue his candidacy for Mayor of Philadelphia? Mr. Specter answered that question in the affirmative on November 21, 1966, when he appeared here in a city charter suit, each button glistening with the aura of Philadelphia jurisdiction: one proclaimed him a city officer because he was paid by the City of Philadelphia, another declared him a city officer because his offices are in city hall maintained by the city, another spoke of his employees all being paid by the city, and so on, and on.

But Mr. Specter answered that question in the negative when he appeared here on May 2, 1967, wearing a different suit, each one of its buttons glittering with State jurisdiction. This fashion change manifests a certain versatility in the plaintiff that is interesting to behold, but it does not effect any transformation in the physical facts and legal aspects of the case. Arlen Specter is the same official person today that he was on November 21, 1966, and no change in raiment can suspend the operation of the Pennsylvania Constitution by which he is bound. No raising of a forensic umbrella can protect Arlen Specter from the deluge of legal pronouncements which shrink his May 2nd suit to the size and cut of the garment he donned last November 21st.

On May 2, 1967, Mr. Specter, as plaintiff in this litigation, argued at length that he is a State officer and filed a voluminous brief to give an authoritative sheen to the suit he wore that day. But nothing he said, or can say, no sartorial ambidexterity, can alter the clear-as-glass, straight-as-a-ramrod language of Article XIV, § 1 of the Pennsylvania Constitution which states with kindergarten simplicity: "County officers shall consist of . . . district attorneys and such others as may from time to time be established by law."

[ 426 Pa. Page 135]

Article XIV, § 8, announces in words as vividly as painted wooden blocks: " (1) In Philadelphia all county officers 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."

To deny that these two pronouncements of the State Constitution make the District Attorney of Philadelphia a City officer is simply to repudiate the English language. No amount of rhetoric, no indulgence in high-pressured dialectics, no sleight-of-hand verbal performance, no rapid change in wearing apparel can alter the stark anatomical fact that the highest law of our Commonwealth, the Constitution itself, announces in words of thunder that the District Attorney, who was once a county officer, is now a city officer! Nor can any camouflaged cloak allow a city officer to slip undetectedly past the charter sentinel, who proclaims so that all Philadelphia can hear: "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." (§ 10-107 (5) Philadelphia Home Rule Charter).

The object of this specific charter provision is to prevent that a city officer should dive into the waters of a political campaign, leaving on shore the duties he owes the office to which he has already been elected. But there is a far more important and impelling reason why the Philadelphia District Attorney should resign when he is a candidate for Mayor. The reason is that a government official should not use the power and equipment of his present office to harass and badger his political opponent through the instrumentality of his present office. It is clear, in a historical study of § 10-107(5), that its proponents wished to eliminate the obvious unfair advantage residing in a

[ 426 Pa. Page 136]

    district attorney, to wheel his official position into action, like an artillery piece, and, with it, threaten his political adversaries with prosecution and harassments. Such a situation, which the proponents of the charter viewed with dire apprehension, could seem to be evolving in the current electoral contest in Philadelphia.

The news media, of which this Court must take judicial notice, allows for the interpretation that Arlen Specter, in conducting the functions of his office as district attorney, is making of that office a formidable weapon against his political rivals in his mayoralty campaign. Speaking as district attorney he charges the opposite political party and members thereof with violating the law, thereby raising the inevitable implied threat that he will draw the sword of his prosecutor's position to perforate the aspirations of his political opponents. He may not, in his own mind, be fusing the sword of the district attorney ...

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