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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 with the blade of a political campaigner. He may believe he is drawing from two different scabbards, but the general public may not distinguish between them.

There have been occasions where he has openly attacked members of the party opposing the party to which he is currently attached, charging them with law violations and permitting the inference to be drawn that as a district attorney he will prosecute those political adversaries, all the time making hay in the blazing sun of a political summer. This type of activity could be compared to that of a policeman, who is a candidate for local office against a resident on his beat, threatening to arrest his opponent and throw him into jail. Such activity does not comport with the American concept of fairness and sportsmanship. This type of performance could be compared with the actions of a referee of a prize fight who favors one of the pugilists over the other, and so, occasionally, throws a punch himself at his favorite's opponent.

[ 426 Pa. Page 137]

There is something simply manifestly inequitable about a district attorney, with the whole prosecution machinery at his command, using, or threatening to use, or even only seeming to threaten to use the armament of his office, to bolster his candidacy for a different office, when his opponent and his opponent's supporters have no way of similarly fighting back. It was to obviate and make impossible such a possibility that § 10-107(5) was conceived and made part of the charter.

A historical study of the Philadelphia charter movement reveals that the pioneers and proponents of the home rule enterprise were very much concerned about the part the district attorney should play in the new city government. It was obvious that one who would be at the very center of the establishment maintaining law and order had to be an integral part of the city government which was now to have autonomy. Thus, in the constitutional amendment leading to the charter itself, all county officers (and the district attorney's office was specifically listed as a county officer) were to become city officers. The pioneers and proponents of Home Rule, as men of intelligence and foresight, realized that the district attorney, by the very nature of his office, exercises tremendous influence on public opinion. This influence results particularly from the fact that the district attorney as the overseeing general in the never-ceasing battle against crime and disorder, creates considerable legitimate news and is therefore a focal point of intense public interest. The momentum of his actions is such that even statements made by him on subjects having nothing to do with law enforcement in Philadelphia are accepted and published. A high public duty, therefore, rests on the district attorney to speak facts as they are and not to embellish them with imaginative forays.

[ 426 Pa. Page 138]

Thus, the community of Philadelphia could not but be astonished when it learned recently that a highly descriptive account of the district attorney's visit to the Canadian Exposition floated on a magic carpet of fiction and conjuration. The district attorney reported to Philadelphia on his visit to the fair by stating that he found it "noncommercial," that it had "dignity and beauty and offers a wide range of subject matter that can best be categorized as the fulfillment of man's promise." If the Canadian Exposition does this, it does more than any world's fair I have attended and, indeed, accomplishes more than mankind has been able to achieve throughout the ages, namely, "the fulfillment of man's promises." One could only wish in retrospect that, if this represents reality, the President of the United States and the Premier of the Soviet Republic had met at the resplendent Canadian Exposition in Montreal, instead of at the modest little college in Glassboro, New Jersey.

The district attorney found also, at the exposition, that the "new technology used in the exhibits from all parts of the world" was so captivating that it made him "feel like a participant," and that he became "engrossed and enchanted in a galaxy of lively subject matter." All this could not help but cause the Philadelphia people to feel that they were fortunate to have so sensitive a district attorney who became so enchanted in a galaxy of lively subject matter that, as he stated, his "emotions" were "stirred" and his mind was "stimulated." The only thing which marred the district attorney's rhapsodical description of his visit to the Montreal exposition was that, as it developed later, he had never been to Montreal!

Now all this has relevance to the issue at hand because the district attorney has taken two diametrically opposite positions as to his status. It would be helpful to the Court, in determining the issue here, to know

[ 426 Pa. Page 139]

    which position Mr. Specter actually carries under the breastplate of his forensic armor. He has argued, as I have indicated, with sedate and solemn conviction, that he is a city officer, and he has spoken, with apparently equal ardor, that he is not a city officer. What does he really believe? It would appear that the district attorney, in presenting his case for either side of the coin, does not restrict himself to the law but advances reasons which should be addressed to a legislative committee contemplating changes in the law, rather than to a Court which is only interpreting what is already written into the law. For instance, Mr. Specter asks rhetorically: "Is it reasonable that the Mayor should be able to use the power of his office to seek re-election, but on the other hand, a holder of another office, no matter how high or low, should not be able to continue in his position while a candidate for Mayor?"

The founders of the Constitution and the lawmakers in Harrisburg and Philadelphia have already governmentally spoken on this subject. They have said that a mayor may run for re-election while still holding his office as mayor, and they have also said that a district attorney may run for re-election while still district attorney. What could be fairer than that? Mr. Specter, however, sees inequality in this equality. But the inequality is a mirage in the political glasses he wears as a candidate, and not because of what is in the law.

From his quotation above noted, it will be seen that Mr. Specter advances the spectacular proposition that he has the right to use the power of the district attorney's office to run for Mayor! While traveling on his magic carpet to Montreal, he dipped down (that is, he anticipatingly retroactively dipped down) into Cooperstown to visit the Baseball Hall of Fame, and he commented on the sensations he experienced on this non-visit. On his fanciful tarrying in the Baseball Hall

[ 426 Pa. Page 140]

    of Fame, he failed to see the sheer unbaseball-like unfairness and outright unsportsmanship of deploying the powers of his district attorney's office on the political battlefield as he wages his campaign for mayor. He failed to see that there is a difference as wide and as long as the St. Lawrence River, on which the Canadian Exposition glitters in "dignity and beauty", between the powers of a mayor and the powers of a district attorney.

The Mayor cannot embarrass, badger, harass and torment political opponents by threatening them with a grand jury investigation, an arrest or a forced detention. The District Attorney can do all these things and, indeed, communication media would indicate that the present District Attorney has made public statements which would suggest that his saber of prosecution is half out of his scabbard as he looks upon the actions of some members of the party he opposes.

On November 21, 1966, he wore the garment of a city officer, and on May 2nd he appeared in the habiliments of a state officer, but today he wears only one suit, the suit which marks him as a candidate for mayor. But while bustling about in that political suit, he still speaks as district attorney. How are the people to differentiate between what he says as a district attorney, when absolute truth is mandatory, and when he speaks as a world traveler candidate?

In his insistence that the district attorney's office is in a class by itself and, therefore, cannot possibly be part of the city government, even though without the city government his office could not function (indeed, in this very litigation, he is suing the city government for the funds he needs to function as a district attorney), Mr. Specter says: "The District Attorney's office is an independent agency, a protector of the public safety and liberties, a watchdog which by its very nature and function can never integrate into municipal government."

[ 426 Pa. Page 141]

It is this very "watchdog" business which should compel Arlen Specter to resign when he is running for mayor because the district attorney's bark is not the squeak of a Pekingese, but the low, muttering admonitory growl of the mastiff that can implement his growling with action, as for instance, an arrest which, no matter how much the arrested person might later be fully exonerated, could do him irreparable harm.

In any event, the plaintiff, as a "watchdog", barks up the wrong tree when he argues that § 10-107(5) cannot apply to him because he is in a special class. There are no special classes in legislation, government, or a democracy. Mr. Specter argues for immunity from § 10-107(5) because, he says, "The office of District Attorney was not created by the Home Rule Charter." But the answer to that superficial observation can be found in the fact that neither were the offices of sheriff, commissioners, recorders of deed and other offices created by the Home Rule Charter. They were created by the same Constitution which brought into being the office of district attorney. Yet the sheriff, commissioners, and recorders of deed, are now, by action of law, together with the district attorney, city officers!

The plaintiff cannot point to a statute which says that the district attorney shall not be a city officer. He cannot so point because there is no such statute. If the Legislature had intended to remove the district attorney from the provisions applicable to the other county (now city officers), it would have been a simple thing to have said that the district attorney, notwithstanding everything else, remains a county officer, or a State officer as Mr. Specter now maintains. But the Legislature did not so state. And that should end the matter.

Mr. Specter, still complaining that § 10-107(5) is unfair to him, says that "Mayor Dilworth has always contended that it was unreasonable and unfair." I do

[ 426 Pa. Page 142]

    not know that Mr. Dilworth has "always contended" that the cited section was "unreasonable and unfair," but I do know, and so does the rest of the world know, that Mr. Dilworth respected the law and lived up to it by resigning his office of mayor when he became a candidate for Governor. He also resigned his office as district attorney when he became a candidate for mayor.

Mr. Specter says that the City of Philadelphia is "concerned only with municipal affairs." This is hardly true. Philadelphia is concerned with State affairs and National affairs. It is concerned with upholding State laws and State regulations, it houses innumerable State offices and institutions, it equips and implements many State enterprises, it is concerned with interstate navigable streams, it is a seaport, it berths a Federal Navy Yard, etc., etc.

Then the plaintiff enumerates a number of statutes to show that the General Assembly regards district attorneys as State officers. He cites statutes of 1883, 1850, 1919, 1923, and 1860, all enacted before the Home Rule Constitutional Amendment and the Home Rule Charter, and thus all as irrelevant as the snows of yesteryear.

It is a rule of this Court that when an even number of judges sit on a case, and the vote among the judges is equally divided, the decision of the lower court, from which the appeal has been taken, is affirmed. That has happened in this case. As already stated, 3 Justices have voted that Arlen Specter is bound by § 10-107(5) and 3 have said he is not so bound. This kind of a seesawing, teetering affirmation does not carry much legal or moral conviction. It is simply a surrendering to circumstance because a full court did not deliberate on the case. Where so important an office as the mayor of the largest city in Pennsylvania is at stake, the winner of a fluctuating

[ 426 Pa. Page 143]

    decision of this character cannot use the decision as evidence of Supreme Court approval of his legal position which is so completely at variance with the Constitution, the statutes and previous decisions of this Court.

The plaintiff sees in the opinion of the lower court a strong wind supporting and filling the sails of his forensic ship, taking him into the port of a legal vindication of his position. He quotes the following from the lower court's opinion: "The enforcement of the criminal law of the Commonwealth is an exercise of sovereign power. It is inconceivable that the District Attorney can be regarded as representing any other body than the Commonwealth. It is the Commonwealth's laws that he enforces; he acts almost totally in litigation in which the very style of the case is 'Commonwealth v. Defendant.'"

An analysis of this passage will show that the supposedly strong motive wind filling the sails of the plaintiff's craft is but a feeble zephyr which leaves the district attorney stranded in the doldrums of illogic, sophistry and unreality. Giving to litigation the title of Commonwealth v. Defendant does not make the district attorney the Commonwealth. After all, more than the district attorney are involved in a prosecution. There are the police, detectives, grand jury, prosecuting witnesses, etc., etc. But, more significant than that, it is as obvious as the tower on the City Hall of Philadelphia that every governmental act in the state, whether performed by State, county, or municipal officers, is necessarily done in the name of the Commonwealth since only the Commonwealth has sovereignty.

Take, for instance, the sheriff. No officer in the Commonwealth speaks with more power and authority for the Commonwealth than the sheriff and yet, in Philadelphia, the sheriff is a city officer. Take the Police Commissioner of Philadelphia. His power is

[ 426 Pa. Page 144]

    awesome and all-embracive in the enforcement of the criminal laws of the Commonwealth. And yet in Philadelphia he is a city officer. Consider the City Solicitor of Philadelphia. When he acts to enforce State statutes he represents the Commonwealth. But who can doubt that he is a city officer? There are numerous illustrations of city officials carrying out the laws of the Commonwealth, e.g., the Commissioner of Licenses and Inspections who enforces the State as well as city building codes; the Records Commissioner who collects State realty taxes, the Commissioner on Human Relations who enforces State as well as local laws against racial and religious discrimination. As a matter of fact, there is scarcely a city official who does not find himself in some way carrying out the laws of the Commonwealth.*fn2

The lower court unquestionably found itself sailing into head winds when it hoped to find reasons to support its illusory conclusions. And so it was forced to admit that: "A mere surface examination could yield the view that, because Art. XIV, sec. 1 of the Pennsylvania Constitution specifies that 'county officers shall consist of [inter alia] district attorneys,' and because Art. XIV, sec. 8(1) abolishes all county offices and provides that 'all county officers shall become officers of the City of Philadelphia,' the District Attorney is therefore also simply a city officer immediately subject to the Charter provisions."

After this concession, which practically decides the case against Arlen Specter, who is now urging he is not a city officer, the court then went below a "surface examination." It crash-dived into the submarine depths and found the argument that: "a consideration of the

[ 426 Pa. Page 145]

    history, functions, character and nature of the District Attorney's office compels a much more cautious disposition of the question."

But, even at this depth, the court was compelled to move cautiously and it came to an all but conclusive admission against Arlen Specter, namely, "Were it not for the single troublesome fact that district attorneys are denominated as county officers in Art. XIV, sec. 1, I would have no difficulty whatsoever in concluding that the District Attorney is and must be regarded as a state officer."

The lower court found it "troublesome" that the Constitution declared the district attorney a county officer. This is indeed an understatement. It is like saying that one finds it troublesome that the State may not twice put a defendant in jeopardy for the same offense because the Constitution prohibits just that! It is like saying that one finds it troublesome to proclaim that the printing presses shall not be free because the Constitution states that it shall be free! The Constitution was not engaging in empty rhetoric when it said "No ex post facto law, nor any law impairing the obligation of contracts, or making irrevocable any grant of special privileges or immunities, shall be passed." It stated not a "troublesome" proposition but the law of the land! And when that same Constitution says that a district attorney is a county officer, it speaks in words which admit of no equivocation, evasion or weaselling.

It said the district attorney is a county officer, period, paragraph.

The lower court, after hitting the submerged pylon of Article XIV which makes the district attorney a county officer, and by later amendment, a city officer, quickly surfaced and, shaking off the effects of the unexpected impact, declared that the district attorney must be a state officer because "it is the Commonwealth

[ 426 Pa. Page 146]

    laws that he enforces." But what laws do the sheriff of Philadelphia, the police of Philadelphia, the City Solicitor of Philadelphia enforce? Certainly not the laws of Bulgaria. They are the laws of the Commonwealth of Pennsylvania! To say that the District Attorney of Philadelphia, in the face of specific constitutional language to the contrary, is not a city officer is like saying that he must be a State officer because he breathes the air of Pennsylvania.

In its subsurfacing and resurfacing, the lower court has lost track of the decisions of this Court on this very subject. In Lennox v. Clark, 372 Pa. 355, this Court held that the former county offices of sheriff, county commissioners, recorder of deeds, clerk of quarter session, coroner, board of revision of taxes and registration commission, were, under the charter, city offices and subject to the several provisions thereof. Chief Justice Stern said in the clearest language possible: "Apart from precedents either pro or con, it would be wholly incredible to suppose that the only accomplishment intended by the City-County Consolidation Amendment was the merely puerile one of a change of titles, and that for such a superficial purpose alone two successive legislatures voted upon the amendment and the citizens of the Commonwealth adopted it at a state-wide election! Certainly something more substantial was intended to be wrought by its enactment. 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." (Emphasis supplied)

In Clark v. Meade, 377 Pa. 150, an attempt was made to exclude the district attorney's office from the civil service provisions of the Home Rule Charter. This

[ 426 Pa. Page 147]

Court refused the exclusion, stating: "And it is impossible to discover any reason for the pronouncement that a stenographer in the office of the district attorney may be dismissed only for cause, but a stenographer of the same grade, receiving the same compensation in the office of the Sheriff or the Board of Revision of Taxes may be dismissed arbitrarily."

In Schultz v. Philadelphia, 385 Pa. 79, this Court found a proposed amendment to the Home Rule Charter, which would have excluded the office of the district attorney, with other offices, from civil service requirements, unconstitutional. At no time in all the discussion revolving around that particular litigation did any one make the slightest suggestion that the office of the district attorney was not a city officer under the charter.

Since only six judges sat on this case, and the Court divided equally between affirming and reversing the lower court's decision, there is no Majority Opinion of this Court. Justice Jones has filed an opinion affirming the lower court. I am writing an opinion reversing the lower court. In point of authoritativeness, my opinion is just as effective as that of Justice Jones and, of course, I say this with great respect.

Justice Jones cites the Lennox case, as supporting his view because the Court excluded the offices of prothonotary and register of wills from the City Charter, even though they were listed, with the district attorney's office and other offices, in the Constitution as county officers. By this illustration, he argues that if the prothonotary and the register of wills could be excluded from the City Charter, so can the district attorney. But in his very discussion of this point, Justice Jones destroys the comparison because he points out, and properly so, that the prothonotary and the register of wills receive special mention in the Pennsylvania Constitution apart from the enumeration in

[ 426 Pa. Page 148]

Article IV, § 1. Justice Jones specifies: "Article V, § 7 of the Constitution specifically provided for the office of prothonotary in Philadelphia, his manner of appointment and his authority 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."

But there is no provision in the Constitution which specifically refers to the district attorney as the above designated ones apply to the prothonotary and the register of wills. Thus the district attorney may not become an exclusionary partner of the prothonotary and the register of wills on the basis of the Lennox case.

Brother Jones says that the district attorney does not perform his duties "on behalf of either a county or city." If he means by this that the district attorney has nothing to do with running the public parks and the water system of Philadelphia, it could be an argument that he is not a city officer, but the district attorney deals with the people of Philadelphia in the same way as the sheriff deals with the people, and if the sheriff can be designated, and has been so designated by this Court, a city officer, why is the district attorney not a city officer? The sheriff represents the sovereign power of the Commonwealth perhaps even more than the district attorney because he executes the laws of the Commonwealth, whereas the district attorney only prosecutes those who violate the laws. I repeat the sheriff is a city officer. Why isn't the district attorney a city officer?

[ 426 Pa. Page 149]

My respected colleague Justice Jones says that " all of the duties of the district attorney are performed on behalf of the Commonwealth." So does the sheriff enforce the laws of the Commonwealth but that does not make him a State officer. And it is to be noted that while the district attorney prosecutes those who violate the laws of the Commonwealth he ALSO prosecutes those who violate the local ordinances of the City.

In his brief the district attorney says that: "Since the District Attorney is a Constitutional officer, the exclusive method of his removal is that set forth in Article VI, Sec. 7 of the Pennsylvania Constitution."

Mr. Specter conveys the impression by this statement that Article VI refers only to the district attorney. The impression is erroneous. Justice Jones quotes the constitutional provision as follows: " All civil officers shall hold their office on the condition that they behave themselves well while in office, and shall be removed on conviction and misbehavior in office or of any infamous crime. . . . All civil officers elected by the people [with certain exceptions not presently relevant], shall be removed by the Governor for reasonable cause, after due notice and full hearing, on the address of two-thirds of the Senate." (Emphasis supplied.)

Thus, we see that this section applies to all city officers which, of course, includes the sheriff; and we have stated, and repeat, and continue to repeat, that the sheriff is a city officer, no different from the district attorney in this regard.

Mr. Specter argues his case by saying: "None of the other sixty-six District Attorneys in the Commonwealth are required to resign from office to run for other office."

But he overlooks that Philadelphia is the only first class county and the only first class city in the Commonwealth. Philadelphia is autonomous, it has its own

[ 426 Pa. Page 150]

    charter, and, to the extent that Mr. Specter enjoys the privileges of living and being elected in Philadelphia, he must undertake the responsibilities that go with such residence and election.

The plaintiff argues that to disqualify him as district attorney under § 10-107(5) would be a violation of Constitutional Article VI, stating: "It is difficult to perceive of a more devastating way to affect the powers of a District Attorney than to remove him from office."

This may be witty but not wise because if this Court were to decide in favor of the defendant and not in favor of the plaintiff, Mr. Specter would still not be removed from office. He would still be district attorney and he could continue to remain district attorney by withdrawing his candidacy for Mayor of Philadelphia.

No provision in the Constitution, no statute of the Commonwealth, no section of the City Charter compels him to be a candidate for Mayor.

The District Attorney initiated this litigation in order to obtain his salary as district attorney. The City opposed the District Attorney's complaint in mandamus on the ground that under § 10-107(5) Mr. Specter could not be a candidate for mayor and still remain district attorney. What we are called upon to decide in this case is whether Arlen Specter shall receive his salary as district attorney if he remains a candidate for mayor. Thus the plaintiff raises an artificial issue when he says that the City's answer, if accepted, amounts to removing him from office. I regret to say that my friend Justice Jones, in his opinion, falls into a similar non sequitur. If this Court would decide that Mr. Specter cannot simultaneously be a district attorney and mayoral candidate, he would still, as I have stated, not be removed from office. The decision would be up to Mr. Specter. If he would insist

[ 426 Pa. Page 151]

    on remaining mayoral candidate, without resigning his present office, then, and only then, would the question of removal from office become an issue. And that question would then be resolved through quo warrantor proceedings, or application of Article VI of the Constitution.*fn3

I hold that Arlen Specter is a city officer and, under the City Charter, § 10-107(5), he must decide whether he will run for mayor or sit as district attorney. Under the Constitution, the statutes, and his responsibility to the people, he cannot simultaneously both run and sit. In view of what I have stated in this Opinion, I further hold that it is legally immoral for a government official, armed with the unlimited prosecuting powers lodged in the office of District Attorney, to carry on an election campaign against those who are opposed to him politically.

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