Appeal from decree of Court of Common Pleas of Philadelphia County, June T., 1967, No. 4133, in case of Paul M. Chalfin v. Arlen Specter, District Attorney, Maurice S. Osser, Thomas P. McHenry and Louis Menna, City Commissioners, et al.
Marvin Comisky, with him Edwin P. Rome, and Blank, Rudenko, Klaus and Rome, for appellant.
Arlen Specter, appellee, in propria persona.
Edward G. Bauer, Jr., City Solicitor, with him John Mattioni, Assistant City Solicitor, Matthew W. Bullock, Jr., Second Deputy City Solicitor, and Levy Anderson, First Deputy City Solicitor, for other appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Concurring Opinion by Mr. Chief Justice Bell. Concurring Opinion by Mr. Justice Roberts. Mr. Justice Jones and Mr. Justice O'Brien join in this concurring opinion. Dissenting Opinion by Mr. Justice Musmanno. Dissenting Opinion by Mr. Justice Cohen. Dissenting Opinion by Mr. Justice Eagen.
Decree affirmed. Each party to pay own costs.
Concurring Opinion by Mr. Chief Justice Bell:
This case arose by a Complaint in Equity brought by Paul M. Chalfin, a candidate for Controller on the Democratic ticket and a taxpayer, against (1) Arlen Specter, the present District Attorney of Philadelphia and the candidate for Mayor on the Republican ticket, and (2) the City Commissioners and other City officers. The Complaint prayed for an injunction (1) enjoining the City Commissioners from placing the name of Specter on the ballot as a candidate for Mayor in the Philadelphia municipal election on November 7, 1967, and (2) to restrain defendants from making any payments pertaining in any way to the candidacy of Specter for the office of Mayor, and (3) enjoining Specter from remaining as a candidate for Mayor unless he forthwith resigns the office of District Attorney, and (4) such further general relief as may be just and proper under the circumstances. This suit was not brought before July 28, 1967 as in fairness it should have been. The Court below, on August 31, 1967, sustained defendant Arlen Specter's preliminary objection to the Complaint in Equity and dismissed plaintiff's complaint. This was a final and therefore an appealable Order.
This Court advanced the hearing and sat specially on September 25, 1967 to hear arguments and to consider this appeal because of the fact that the City Commissioners alleged that the preparation of the ballots, the printing and the preparation of all the balloting and election machinery, must be commenced by them on or before September 26, 1967. The time element is one of the important factors which must be taken into consideration in our determination of this case.
The present case is very unusual and of tremendous importance to the people of Philadelphia, and the difficulties and the differences are the result (1) of this Court's Opinion (a) in Com. ex rel. Specter v. Martin, 426 Pa. 102, 232 A.2d 729, and (b) in Com. ex rel. Specter v. Freed, 424 Pa. 508, 517, 228 A.2d 382, which pertinently was not joined in by a majority of this Court, and (2) other facts which will be hereinafter discussed.
In the Martin case, which was an action of mandamus, brought by Specter to compel the payment of his salary as District Attorney of Philadelphia County, Justice Jones, joined by Justices O'Brien and Roberts, held (1) that Specter was entitled to his salary, and (2) that the District Attorney of Philadelphia was a State officer, and (3) as such was not subject to the Philadelphia Home Rule Charter, and (4) did not have to resign as District Attorney when he became a candidate for the office of Mayor.
Justice Eagen, in a concurring and dissenting Opinion, held that "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." Justice Eagen further said that although it was unnecessary to the Court's decision, "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)."
Chief Justice Bell filed a dissenting Opinion in which he pertinently stated that quo warrantor was the proper remedy in that case, that the case was moot because Specter had been paid and was receiving his salary, but the questions involved were of such great public importance that it was proper to consider the case on the merits. So considered, and most important, he stated that under the clear and mandatory language of the Constitution of Pennsylvania, Specter was a City officer and not a State officer, and was subject to the provisions of the Philadelphia Home Rule Charter. Justice Musmanno agreed on this point with the Chief Justice. Justice Cohen was absent, because of illness. This meant that a majority of the Judges (three Judges of this Court and the Court below) believed and held that Specter was a State officer and could be a candidate for Mayor without resigning as District Attorney, while three Judges of this Court believed that Specter was a City officer and was subject to the City Charter.
The net result of the Specter-Martin case and the language in the Court's Opinion in the Freed case, supra, and the affirmance of the Court below -- plus the Opinion of the City Solicitor of Philadelphia in a kindred case in which he advised the City Commissioners that John B. Kelly, Jr.'s name must remain on the ballot as a candidate for Councilman at large in the November 1967 municipal election -- was doubt, uncertainty and bewildering confusion. While this regrettable confusion was not anyone's fault, it is clear that these facts and these Court Opinions were justifiably relied upon by Specter, at least until changed by this Court, and that Specter and virtually the entire community were misled in reliance thereon.
In the present case, (a) the real and fundamental issue has been wisely, and, as we shall see, properly raised by a Complaint in Equity, and (b) we have a full Court.
The Constitution of Pennsylvania pertinently provides in Article XIV :
" Section 1. County officers shall consist of sheriffs, coroners, prothonotaries, registers of wills, recorders of deeds, commissioners, treasurers, surveyors, auditors or controllers, clerks of the courts, district attorneys*fn1 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 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, . . ."
The aforesaid language of the Constitution of Pennsylvania is, we repeat, crystal clear. It states in the clearest imaginable language that District Attorneys are County -- not State -- officers, and in Philadelphia, by virtue of the above-quoted Constitutional provisions and the Home Rule Charter, are City -- not State -- officers, and no Procrustean stretch can alter or change or nullify this clear language. Moreover, it is important to further note that while his term of office and his salary are fixed by the Legislature (1) the District Attorney of Philadelphia (a) is elected, and (b) is paid -- not by the Commonwealth but -- by the people of Philadelphia, and (2) the District Attorney of Philadelphia is elected in municipal instead of in State-wide elections, and (3) the essential and principal and most important powers, functions, duties, limitations and boundaries of the District Attorney of Philadelphia involve only crimes committed -- not throughout the Commonwealth but -- only in the City of Philadelphia.*fn2
Justices Jones, O'Brien and Roberts remain of the opinion that the District Attorney of Philadelphia is a State officer and is not subject to the City Charter, or compelled to resign in order to be a candidate for Mayor. However, the majority of this 7-Judge Court agree with me on this point and are convinced that under the Constitution of Pennsylvania and the Philadelphia Home Rule Charter, the District Attorney of Philadelphia is a City officer and is subject to the Home Rule Charter.
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." Subsequent provisions of the Home Rule Charter impose severe penalties against any City officer who violates any of the provisions of the Charter.*fn3 To impose these penalties upon Specter would be so unfair and unjust that the City Solicitor of Philadelphia stated at the bar of the Court in the Specter-Martin case that neither he nor any other party in that case would ask that these penalties be imposed upon Specter, and the present complaint takes the same position -- obviously, I repeat, for the reason that they correctly thought it would be very unfair and very unjust. One of the important questions, nevertheless, is -- since Specter is a City officer, can these penalties be waived? Moreover, there is the additional very important fact that, according to the uncontradicted averments of the City Commissioners, the printing of ballots and the setting up of ballot machinery must commence on September 26, 1967. Because of the difficult legal questions involved, it was not possible for this Court to resolve the questions and issues until today, namely, October 2nd. Under these very unusual facts and circumstances, are the people of Philadelphia to be denied the right to vote for a candidate for Mayor on one of the two major tickets, i.e. the Republican ticket, and if not, what is the appropriate remedy?
Specter contends that § 976 and § 977 of the Pennsylvania Election Code of June 3, 1937, P. L. 1333, govern, and since the appellants have not complied therewith by challenging his nomination papers within Page 473} seven days after the last day for filing,*fn4 as the Code requires, the present appeal should be quashed, or dismissed. With this contention I disagree, because the Election Code is clearly inapplicable to the basic question here involved. The Code, in § 976, provides: " When any nomination petition. . . is presented in the office . . . of any county board of elections for filing within the period limited by this act, it shall be the duty of the said . . . board to examine the same. No nomination petition . . . shall be permitted to be filed if -- (a) it contains material errors or defects apparent on the face thereof, or on the face of the appended or accompanying affidavits; or (b) it contains material alterations made after signing without the consent of the signers; or (c) it does not contain a sufficient number of signatures as required by law; Provided, however, That . . . the county board of elections, although not hereby required so to do, may question the genuineness of any signature or signatures appearing thereon, and if he or it shall thereupon find that any such signature or signatures are not genuine, such signature or signatures shall be disregarded in determining whether the nomination petition, nomination paper or nomination certificate contains a sufficient number of signatures as required by law; or (d) . . . if nomination petitions have been filed for printing the name of the same person for the same office, except the office of judge of a court of record, upon the official ballot of more than one political party; or . . . (f) if the nomination petitions are not accompanied by the filing fee or certified check required for said office; or (g) in the case of nomination papers, the appellation set forth therein is identical with or deceptively similar to the words used by any existing party or by any political body which has already filed nomination papers for
the same office, or if the appellation set forth therein contains part of the name, or an abbreviation of the name or part of the name of an existing political party, or of a political body which has already filed nomination papers for the same office."
Moreover, to extend this Code to facts such as are here involved would extirpate quo warrantor, which the provisions of the Code never eliminated or were intended to eliminate.
Quo warrantor is the traditional and long-established action to try title to office. The general rule is well settled that, with certain exceptions hereinafter set forth, 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. Where, because of exceptional facts and circumstances, quo warrantor does not furnish an adequate and full remedy, it is the paramount right of the public to have an adequate remedy granted through Equity: Mayer v. Hemphill, 411 Pa. 1, 190 A.2d 444, and cases cited therein.
In Mayer v. Hemphill, the Court said (pp. 6-7): "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 as distinguished from the right or interest of the public generally, or has been specially damaged. 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.
; 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. also Dorris v. Lloyd (No. 1), 375 Pa. 474, 100 A.2d 924. . . .
"However, there is likewise a well settled general rule that a taxpayer has a right and a standing to sue to enjoin public officials from wrongfully or unlawfully expending public money, and in such cases the complainant need not have any special interest which is damaged other than his interest as a taxpayer: Smith v. Gallagher, 408 Pa. 551, 185 A.2d 135; Butcher v. Philadelphia, 382 Pa. 34, 114 A.2d 120; Scudder v. Smith, 331 Pa. 165, 200 A. 601; Page v. King, 285 Pa. 153, 131 A. 707; Harris v. Philadelphia, 299 Pa. 473, 149 A. 722.
"Sometimes these two general rules collide or overlap. Moreover, appellant points out that in recent years exceptions have been wisely recognized by the Courts to the narrow circumscribed limited remedy of quo warrantor for several reasons: (1) quo warrantor does not always furnish an adequate and full remedy; (2) the wisdom of applying a remedy which will avoid a multiplicity of suits; (3) the paramount right of the public to have a surer and more adequate remedy to restrain wrongful acts by a public official, including the unlawful expenditure of public money. Where such circumstances exist, equitable relief has been granted through a taxpayer's bill or other injunctive or equitable remedy. Cf. Smith v. Gallagher, 408 Pa. 551, 185 A.2d 135; Schrader v. Heath, 408 Pa. 79, 83, 182 A.2d 696; Wright v. Wagner, 405 Pa. 546, 175 A.2d 875; Pennsylvania State Chamber of Commerce v. Torquato, 386 Pa. 306, 125 A.2d 755; and cases cited pages 328-329; Butcher v. Philadelphia, 382 Pa., supra; Gladwyne Colony, Inc. v. Lower Merion
Township, 409 Pa. 441, 447, 187 A.2d 549; Baker v. Carr, 369 U.S. 186; Bowers v. Reitz, 315 Pa. 310, 172 A. 707; Kerr v. Trego, 47 Pa. 292; Appeal of Town Council, 22 W.N.C. 431, 15 A. 730."
Because of the time element in connection with the printing of the ballots and the election machinery hereinabove mentioned, unless this Court takes a position forthwith on Specter's status and rights, Philadelphia voters may be restricted to only one mayoralty candidate on a major party ticket. Furthermore, if Specter should be elected Mayor and is thereafter declared ineligible, it is clear that unless complete equitable relief is granted now, in and by this case, (1) the majority of the voters of Philadelphia will be disfranchised, and (2) countless thousands of citizens of Philadelphia will have campaigned and have wasted their time and money in vain, and (3) the taxpayers will likewise be required to pay for large illegal expenditures. Equally important, unless this Court decides now the basic questions and issues which are necessarily involved and inherent in this case, the orderly administration of the office of Mayor and of the Government of the City of Philadelphia may be jeopardized and partially paralyzed for a considerable length of time, and the public interest and welfare will in all likelihood be seriously injured and certainly cannot be fully and promptly and adequately protected.*fn5
All of the above recited facts make this case as difficult as a Chinese puzzle. The situation is so confused and muddled, I am going to cut the Gordian knot and present the following practical and equitable solution.
Under these exceptionally unusual circumstances, I believe (1) that Equity will lie, and (2) that the District Attorney of Philadelphia is a City officer, and (3) that Specter justifiably relied upon, and like countless other citizens was (of course unintentionally) misled by the prior decisions of this Court, and (4) because of this and the other facts hereinbefore set forth, including particularly the limited time for preparation of the balloting machinery, Specter should be permitted to be a candidate for Mayor of Philadelphia without resigning his office as District Attorney. ...