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decided: March 14, 1968.


Appeal from order of Court of Common Pleas of Philadelphia County, Nov. T., 1967, No. 1331, in case of Clark J. Harrington et al. v. Vincent A. Carroll et al.


Edward R. Becker, with him Herbert W. Salus, Jr., Larrick B. Stapleton, Oscar N. Gaskins, and Becker & Becker, for appellant.

Levy Anderson, First Deputy City Solicitor, with him Edward G. Bauer, Jr., City Solicitor, for appellees.

David Berger, with him Cohen, Shapiro, Berger, Polisher and Cohen, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Concurring Opinion by Mr. Justice Jones. Concurring Opinion by Mr. Justice Cohen. Concurring Opinion by Mr. Justice O'Brien. Concurring and Dissenting Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Musmanno

[ 428 Pa. Page 511]

Section 2-103 of the Philadelphia Home Rule Charter states: "Qualifications of Councilmen. A councilman shall be a citizen of the United States, shall have been a resident of the City for at least one year prior to his election, and shall be at least twenty-five years of age when elected to office. District councilmen shall be, and during their terms of office shall remain, residents of the districts from which they were elected. The Council shall be the sole judge of the qualifications of its members."

It is one of the striking phenomena of the legal world how there could be controversy over so simple a declaration. But the appellants in this case do question

[ 428 Pa. Page 512]

    and do controvert the quoted utterance. They argue that it does not mean what it says, but even only a one-eyed glance at the paragraph should reveal that the proposition therein contained is expressed in language as limpid as a running brook, as apparent as a mountain by the sea, and as easily read as if it were spelled out in children's kindergarten blocks.

The Philadelphia Home Rule Charter is the law of Philadelphia; it is the Magna Charta of this illustrious city. It was adopted by the people in a solemn referendum, after the procedure had been authorized and mandated by the General Assembly of Pennsylvania under the aegis of the Constitution of the Commonwealth. So far as the government of Philadelphia is concerned, the Philadelphia Charter is inflexible law. Justice Charles Alvin Jones, later Chief Justice, declared in the Addison Case, 385 Pa. 48, 57, that the Philadelphia Home Rule Charter "emanated from the relevant provision of the State Constitution, implemented for appropriate execution by the enabling Act of 1949, and was duly adopted (i.e., enacted) by the affirmative vote of the electors of the City as the organic law of the corporate municipal body. That the Charter constituted legislation no less than does a statute of the legislature to like end is too plain for even cavil. Whether a municipal charter comes into being by direct statutory grant of the legislature or by adoption by the constituent electorate in the exercise of power constitutionally reposed, it is as much legislative in the one instance as in the other and has equal legal force and standing in both. Indeed, a constitutionally permissible adoption of a municipal charter by the electorate is not one whit less in dignity than a statute of the legislature granting a charter. Where it is adopted by a constitutionally empowered electorate, it affords an example of pure democracy -- the sovereign people legislating directly and not by representatives

[ 428 Pa. Page 513]

    in respect of the organization and administration of their local government . . . Wherefore, upon its due adoption, Philadelphia's Home Rule Charter took on the force and status of a legislative enactment."

In Lurie v. Republican Alliance, 412 Pa. 61, 63, this Court said: "Where a remedy is provided by an act of assembly, the directions of the legislation must be strictly pursued and such remedy is exclusive," citing authorities.

John B. Kelly was a candidate for the office of councilman-at-large of City Council of Philadelphia in the primary and general elections of 1967. He was nominated in accordance with election law, and, in November, 1967, was elected with 356,694 votes, the second highest number of votes cast for any candidate for the office of councilman-at-large. The Return Board of Philadelphia County, after a computation, whose mathematical accuracy no one questions, was prepared to certify Kelly's election, when the plaintiffs in this case, Clark J. Harrington, as a taxpayer and elector of Philadelphia on behalf of all other taxpayers and electors of the City (by virtue of an amendment to his complaint), and by the Republican City Committee on behalf of its unsuccessful candidate, George Woods, filed a complaint in equity in the Court of Common Pleas of Philadelphia County, against the six judges of the Court of Common Pleas of Philadelphia County who acted as an Election Return Board, certain fiscal officers of the city, the other sixteen councilmen-elect, and John B. Kelly, Jr., requesting that the Return Board be enjoined from certifying Kelly's election, that no funds be paid him in connection with the assumption of office by him, that the other councilmen-elect be enjoined from seating Kelly, and that Kelly be enjoined from taking office as a councilman.

[ 428 Pa. Page 514]

The plaintiffs further prayed that the court by mandatory injunction order the Return Board to certify the election of George Woods on the averment he received the highest number of votes of the unsuccessful candidates for councilman-at-large, or, that in the alternative, the court direct the incoming President of City Council to call a special election to fill the vacancy if Kelly is declared ineligible for office.

The defendants filed preliminary objections to the complaint. The objections were sustained by the court below and this appeal followed.

It is the contention of the plaintiffs that John B. Kelly did not live in Philadelphia when elected, but, on the contrary, resided in Wynnewood, in Montgomery County. If this be true, he may not, under the Charter, be seated as a councilman-at-large. But who determines whether he is qualified? The Council itself. This is spelled out in the Charter and in the very section which prescribes and defines the qualifications. But, the appellants argue, the Council does not have exclusive jurisdiction over qualifications, and advance the case of Commonwealth v. Allen, 70 Pa. 465, in support of their position. But it would take a heavily-pressed shoehorn to fit the Allen case into the shoe of this case, and, at best, only a limping conclusion could be achieved.

In the Allen case, two councilmen of Philadelphia were allegedly disqualified from holding office because they were sureties for the city treasurer, in violation of an Act of Assembly. This Court held that, because of this infraction of law, the men had to forfeit their office. The defendants in that case argued that the courts had no jurisdiction over the qualifications of city councilmen because they, like assemblymen, could only be denied office on a vote of their fellow-legislators, that is, their fellow-councilmen. This Court faced that argument and replied that here it was not a question

[ 428 Pa. Page 515]

    of qualification for office but of forfeiture: ". . . It is said that councils have power in like manner as each branch of the legislature to judge and determine the qualification of their members. Granting that, it does not follow that the authority of the court is taken away to inquire into a forfeiture, which does not take place until the member has been admitted to his seat . . . The error is in confounding disqualification with forfeiture, so far as to suppose they are equivalent expressions. The fact that a man is a surety for a corporation officer is a cause of disqualification to take the seat, but when the seat is taken it becomes a cause of forfeiture." (Emphasis supplied).

The appellants' brief, praiseworthy in its historical references, takes the reader back to the days of the Tudors and Stuarts, monarchs of England, who usurped power to determine the qualifications of members of Parliament. The people of England wrested from those despots that authority and placed it in the hands of the House of Commons. The appellants then show how the original American colonies wrote into their respective constitutions the fundamental prerogative, as well as duty, of the legislators to pass on the qualifications of its members and how this elementary proposition of trustworthy government is now written into the Constitution of the United States and, of course, the present Constitution of Pennsylvania. Then, in an astonishing non sequitur, the appellants say that the city legislature, that is, the City Council of Philadelphia, does not have the sole power to pass on qualifications of its members. This argument defies practically every jurisprudential pronouncement on the subject. The principle is succinctly stated in 18 Am. Jur., § 288: "A constitutional provision that each house of the legislature shall be the judge of the election and qualifications of its own members is an exclusive grant of power and constitutes each house the sole and ultimate

[ 428 Pa. Page 516]

    tribunal to pass upon the qualifications of its own members, which power cannot be granted away or transferred to any other tribunal or officer."

After citing Commonwealth v. Allen (decided before the 1874 Constitution), the appellants refer to some other old cases. A precedent hoary with age is not for that reason unauthoritative, especially when the principle therein asserted has been reaffirmed over the passing years. But when the old oaken bucket is replaced by a modern drinking fountain which responds to a pedal push, and quenches the thirst of the drinker instantly and wholesomely, one does not insist on creaking a crank to bring to the surface the moss-covered bucket of yore.

The cases which were decided prior to the case of Auchenbach v. Seibert, 120 Pa. 159 cannot prevail over that decision which was based on a set of facts almost identical to those present in the case at bar. Daniel Auchenbach stood for election to the Select Council in the second ward of Reading, received the largest number of votes, and was declared elected as a member of the Select Council of Reading. A number of citizens and qualified electors in the second ward petitioned the Court of Quarter Sessions of Berks County to declare Auchenbach's election illegal because, the petition asserted, Auchenbach did not live in the second ward and, therefore, was not qualified to take his seat as councilman. The court of quarter sessions assumed jurisdiction over the controversy, heard testimony and decided that Auchenbach did not live in the second ward. It then proceeded to disqualify him from the office to which he had been elected. Judge Ermentrout, who wrote the opinion for the court of quarter sessions, argued in the same manner as do the appellants in the case before us. He said: "Our jurisdiction of this case is questioned. It is asserted that, although the law rigidly demands that a candidate for office

[ 428 Pa. Page 517]

    shall have certain prescribed qualifications, the election of such candidate cannot be contested for the want of such qualifications; that the election of a person disqualified does not make the election either 'undue or illegal,' and that in a contested election the courts are simply to determine whether the machinery of holding the election has been put in proper motion, the election held at the proper time and place and in the manner and by the proper persons as required by law, without fraud or mistake, and a correct return thereof made; that in the present case, because § 4 of the municipal act of May 24, 1887, P. L. 204, says: 'Each branch of councils shall judge of the qualifications of its members, and contested elections shall be determined by the courts of law,' the question of 'qualifications' belongs exclusively to councils to determine." Judge Ermentrout said that this was all wrong, that the courts did have jurisdiction to pass on the qualifications of members of council, and he came to the conclusion: "And now having heard the case, and having tried and determined the controversy, we find that Daniel Auchenbach was not an inhabitant for one year of the Second ward, city of Reading, before his alleged election as member of select council from said ward, and adjudge that he was and is disqualified under the law from holding such office, and that his alleged election is undue and illegal."

Auchenbach appealed to this Court, which flatly overruled Ermentrout, and, speaking through Chief Justice Gordon, cogently declared: "It is very clear that the Court of Quarter Sessions acted ultra vires in entering judgment of ouster against the respondent. It had no jurisdiction to pronounce upon the qualification of Daniel Auchenbach as a councilman. The act of assembly vests that power not in the court, but in that branch of the municipal council to which the member may be elected. It is only in contested election

[ 428 Pa. Page 518]

    cases that the court has jurisdiction, and as this jurisdiction is not one of common law it cannot be extended by implication beyond the prescriptions of the act in which it originates. Were the question before us, we might take issue with the court below on the fact of the respondent's qualification, but, as what we have said fully disposes of the case in hand, we need not pass upon an issue which is foreign to the pending controversy." (Emphasis supplied).

Echoing the language of Chief Justice Gordon, we would say here that the physical residence of John B. Kelly is foreign to the litigation currently in this Court. The issue of his residence is, according to legislative mandate, a matter for the City Council of Philadelphia to determine. Section 2-103 of the Charter, we repeat, proclaims: "The Council shall be the sole judge of the qualifications of its members."

To say, in the face of that explicit phraseology that the qualifications of council members may be determined by another tribunal is equivalent to saying that hot may mean cold, that up may signify down, and that full can be interpreted as empty. For a court to affix its imprimatur to such distortion of language would be to send the law adrift on a Sargasso Sea of lexicographical pandemonium.

The appellants cite the case of Commonwealth ex rel. v. Bennett, 233 Pa. 286, in support of their position but they do so in vain because there, as in the Allen case, the question was one of forfeiture of office, not disqualification for office.

Then the appellants summon to their cause the recent case of Bond v. Floyd, 385 U.S. 116, 129, where the Supreme Court of the United States reviewed the action of the Georgia Legislature which twice refused to seat Julian Bond although he had received enough votes for election. One can never determine the contents of a house from the outside, by a rapid look through a

[ 428 Pa. Page 519]

    window. In that case Julian Bond, in the exercise of free speech guaranteed in the First Amendment to the Constitution of the United States, criticized the foreign policy of the United States with reference to Vietnam, and made derogatory remarks on the operation of the Selective Service Laws. The Supreme Court declared that to exclude Bond from his legislative seat would be to penalize him for exercising the prerogatives of a United States citizen. It must be perceived by even half a glance through constitutional windows that the decision of the Supreme Court in the Bond case can have no application to the Kelly case where no constitutional question is involved and where the only issue to be decided is the residence of Kelly, which, let it be reiterated, is strictly and solely a matter for determination by City Council, as edicted by the City Charter.

The appellants do not, and cannot, insist that the Bond case is controlling here, so they limit themselves to arguing that it "establishes a new trend in the law." But the law is not a fashion garment to be tailored, shortened or lengthened according to trend, fancy or whimsy.

The appellants concede "that the overwhelming authority as respects State legislatures is that the Courts have no jurisdiction to determine qualifications," but they then go on to say that "nonetheless it is apparent that the Bond case is signaling the beginning of the end of this impregnable wall."

To argue that the right of the legislatures to determine the qualifications of its members is a wall which should be shattered is to maintain that representative government is on the way toward its own demolition. It is to prevent any such catastrophe that the United States and Pennsylvania Constitutions provide for courts, judges and ...

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