Howard Gittis, Bernard Chanin, Philadelphia, for appellant in No. 89.
Sheldon L. Albert, City Sol., Michael N. Silver, Asst. City Sol., for appellant in No. 90.
Gregory M. Harvey, Philadelphia, for appellees.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. O'Brien, J., filed a concurring opinion. Nix, J., filed a concurring opinion in which Manderino, J., joins. Eagen, J., filed a dissenting opinion. Roberts, J., filed a dissenting opinion. Pomeroy, J., filed a dissenting opinion.
This matter is before this Court on appeals*fn1 by appellants, the Board of Elections of the City and County of Philadelphia (hereinafter referred to as the "Board of Elections" or the "Board") and the Honorable Frank L. Rizzo, Mayor of the City of Philadelphia (hereinafter referred
to as "Mayor Rizzo" or the "Mayor"), from an Order of the Court of Common Pleas of Philadelphia County, entered on September 16, 1976. The order of the trial court was entered in an action in mandamus initiated by the appellees, Citizens Committee to Recall Rizzo and Shelly D. Yanoff, Henry T. Reath, Arthur F. Grant, Joseph Mikuliak, H. Patrick Swygert and Alfred Fleming, individually and on behalf of classes of persons similarly situated (hereinafter referred to collectively as the "Recall Committee"), to compel the validation of the petition to recall Mayor Rizzo, which the Recall Committee had submitted to the Board of Elections pursuant to Article IX of the Philadelphia Home Rule Charter.*fn2 The end result of the Order issued by the court below was to grant the Recall Committee's request for a writ of mandamus compelling the Board of Elections to accept the recall petition for filing and to implement the requisite procedures for the holding of the recall election on November 2, 1976.*fn3
The chronology of the case, although not fundamental to the resolution of the issues presented on these appeals, is of assistance in placing in perspective the difficulties which enshroud these proceedings.
On June 15, 1976, the Recall Committee submitted to the Board a petition to recall Mayor Rizzo, consisting of 20,156 pages of paper containing 210,806 signed lines, and accompanied by 5,039 affidavits, pursuant to Section 9.9-101(1) of the Philadelphia Home Rule Charter. As provided by Section 9.9-101(3) of the Charter, the Board of Elections commenced an examination of the petition
for the purpose of determining its validity for filing or rejection.
On June 30, 1976, prior to expiration of the fifteen-day period for completion of the examination as provided by statute, the Board filed an action for declaratory judgment, seeking an extension of the fifteen-day requirement and the Court of Common Pleas, by Order dated July 7, 1976, granted an extension to the Board to midnight on August 9, 1976.*fn4 The Board of Elections, seeking a further extension of time, filed a Petition to Amend the Order of July 7, 1976, on August 4, 1976. The trial court permitted the Board to continue its examination of the recall petition during the pendency of the proceedings on its subsequent petition for extension of time. Prior to a ruling by the trial court on the Board's Petition for further extension of time, the Board, on August 24, 1976, ruled that the recall petition was invalid and rejected it.*fn5 On August 25, 1976, the Recall Committee initiated an action in mandamus against the Board, seeking to require the Board to file the recall petition and to order a recall election. On August 30, 1976, appellant, Mayor Rizzo, petitioned to intervene as a defendant
and that petition was granted on August 31, 1976.
The trial court determined that an expeditious resolution of the issues was required because of the public importance of the recall question and the approaching deadline for placing the recall issue on the November ballot. Accordingly, it set forth an accelerated schedule for the filing of responsive pleadings and supportive briefs, pursuant to Pennsylvania Rule of Civil Procedure 1003. Upon resolution of the mandamus action in favor of the Recall Committee, these appeals followed.
On these appeals we are confronted with three primary issues: (1) the propriety of the trial court in entertaining the action in mandamus and granting the writ as requested; (2) the sufficiency of the evidence and the correctness of the legal position upon which the Board rejected the recall provisions; and (3) the constitutionality of the recall provisions of Article IX of the Philadelphia Home Rule Charter.*fn6 These issues will be addressed seriatim.
Appellant, Board of Elections, has contested the propriety of the action in mandamus brought by the Recall Committee on the theory that the trial court lacked jurisdiction to review the decision of the Board by way of mandamus. Jurisdiction relates only to the competency of the particular court to hear and determine the controversy of the class to which the disputed case belongs. American Labor Party Case, 352 Pa. 576, 44 A.2d 48 (1945). "The test of jurisdiction is whether the court has power to enter upon the inquiry, not whether it may ultimately decide that it is unable to grant the relief
sought in the particular case." Main Cleaners & Dyers, Inc. v. Columbia Super Cleaners, Inc., 332 Pa. 71, 74, 2 A.2d 750, 751 (1938). Whether the writ of mandamus was properly granted by the trial court below in no way affects the competency of that court to entertain such an action. The trial court may have had jurisdiction to consider the action for a writ of mandamus in the instant case; yet may have acted erroneously in granting the requested relief. These are separate inquiries and require individual consideration. American Labor Party Case, supra.
Jurisdiction to consider a petition for a writ of mandamus against a board of elections unquestionably lies in the court of common pleas by virtue of statutory grant.*fn7 Cf. Oberleitner v. Bolinger, 42 Pa.D. & C.2d 623 (1967). The Board, however, contends that the Recall Committee's proper recourse was to perfect an appeal from the Board's determination, pursuant to the provisions of the Local Agency Law.*fn8 Even if the Board is correct in its contention, this argument does not go to the jurisdiction of the lower court to entertain an action for a writ of mandamus, but only to whether the writ was properly granted. It cannot be seriously argued that the Local Agency Law in some way removes the jurisdiction of the court of common pleas to hear petitions for writs of mandamus against boards of elections. See Young v. Littlestown Area School District, 24 Pa. Commw. 621, 358 A.2d 120 (1976); Flinn v. Pittenger, 19 Pa. Commw. 54, 338 A.2d 735 (1975); Manheim Township School District v. State Bd. of Educ., 1 Pa. Commw. 627, 276 A.2d 561 (1971). We are convinced that the court below did have the requisite jurisdictional power to entertain the instant controversy through a petition for a writ of mandamus.
Being so convinced, our inquiry must now turn to the alternative question raised by appellant Board of Elections, as to whether the order of the court below, granting the writ of mandamus to the appellees, was appropriate under the circumstances present here.
Initially, we are obliged to emphasize that mandamus is an extraordinary legal remedy which will only issue when the petitioner seeking relief establishes that: (1) there is a want of any other adequate, appropriate and specific remedy available; (2) there is a clear legal right to which he is entitled; and (3) there exists a corresponding duty on the part of the defendant. Porter v. Bloomsburg State College, 450 Pa. 375, 301 A.2d 621 (1973); Valley Forge Racing Assoc. v. State Horse Racing Commission, 449 Pa. 292, 297 A.2d 823 (1972); Mellinger v. Kuhn, 388 Pa. 83, 130 A.2d 154 (1957); Garratt v. Philadelphia, 387 Pa. 442, 127 A.2d 738 (1956). The burden of proof is clearly upon the party seeking this extraordinary remedy to establish his legal right to such relief.*fn9
In considering the first prerequisite to obtaining relief in mandamus, we must determine if the appellees had available an adequate alternative legal remedy by which to seek relief from the Board's determination. If so, the court below should have denied the requested extraordinary writ. Mellinger v. Kuhn, supra; Commonwealth v. Mitchell, 82 Pa. 343 (1876). In Commonwealth v. Mitchell, supra, at 350, this point was clearly enunciated:
"It is a well-established rule that he who sues for the writ of mandamus, must have some well-defined right
to enforce, which is specific, complete and legal, and for which there is no other specific legal remedy, and the right he claims must be independent of that which he holds in common with the public at large." (emphasis added)
It is the position of the Board, in this regard, that the Recall Committee possessed an adequate alternative legal remedy to that of mandamus by way of the appeal process provided under the Local Agency Law.*fn10 The trial court found, however, that the "determination" made by the Board of Elections as to the validity of the recall petition did not fall within the meaning of "adjudication" as defined by Section 11302 of the Local Agency Law.*fn11 Relying on that conclusion, the trial court rejected the proposition that the Local Agency Law provided an adequate alternative legal remedy to that of mandamus. For the reasons which follow, we agree with the court below in this respect.
First, in the definition of "adjudication" provided in the Act, Section 11302 speaks of a decision affecting rights of "the parties to the proceeding in which the adjudication is made" (emphasis added). In the case of a recall petition being submitted for acceptance (filing) to the Board of Elections, no provision is made for "parties," other than perhaps the Board itself, to be a part of the "proceeding" to determine the petition's validity. Section 9.9-101 of the Philadelphia Home Rule Charter provides only that the recall petition "shall be tendered for filing to the board of elections." The Board then, in brief, has the obligation to either approve or disapprove the petition. No provision is made which contemplates
the participation of the petitioner in any proceeding before the Board.*fn12
Second, the Act in Section 11302(3) defines "party" as "any person who appears in a proceeding before a local agency . . . ." (emphasis added). Since the appellees did not make an appearance at the examination "proceeding" of the recall petition (and could not have done so under any provision of the Charter), by definition the appellees in the instant case would not fall within the compass of the Local Agency Law provisions.
In addition, a reading of the Local Agency Law in its entirety leads to the conclusion that the Act was intended to encompass "adjudications" in which the parties are given an opportunity to present evidence either in support or against the propositions being undertaken. Thus, we conclude that not all decisions or determinations rendered by "local agencies" are within the scope of the Local Agency Law and that, in particular, the determination by the Board of Elections in rejecting the recall petition was not subject to review under the provisions of the Local Agency Law. See, e. g., Young v. Littlestown Area School District, 24 Pa. Commw. 621, 358 A.2d 120 (1976); Flinn v. Pittenger, 19 Pa. Commw. 54,
A.2d 735 (1975); Manheim Township School District v. State Bd. of Educ., 1 Pa. Commw. 627, 276 A.2d 561 (1971). The Recall Committee had no other adequate legal remedy available to it and, therefore, satisfies the first prerequisite for relief in mandamus.*fn13
It is axiomatic that mandamus will issue only to compel an officer or agency to perform a purely ministerial duty.*fn14 Valley Forge Racing Assoc. v. State Racing Commission, 449 Pa. 292, 297 A.2d 823 (1972); Rose Tree Media School District v. Dept. of Public Instruction, 431 Pa. 233, 244 A.2d 754 (1968). "[I]t is well settled that mandamus will never lie to compel a review of a decision of an administrative body or person invested with discretion, which has already acted in the matter in accordance with law." Raffel v. Pittsburgh, 340 Pa. 243, 246, 16 A.2d 392, 393 (1940).
Mandamus is inappropriate to control the exercise of discretion vested in a public officer who is obliged to perform a particular duty. But a duty may be discretionary within limits and the officer may not transgress those limits. If he does, mandamus is an appropriate remedy. Work v. United States ex rel. Rives, 267 U.S. 175, 177, 45 S.Ct. 252, 69 L.Ed. 561 (1925). In Travis v. Teter,
Pa. 326, 330, 87 A.2d 177, 179 (1952), this Court stated:
"It is well settled that in a mandamus proceeding a Court can compel a public official who is vested with a discretionary power to exercise that discretion; but (unless the discretion is arbitrarily or fraudulently exercised or is based upon a mistaken view of the law) it cannot interfere with or control the official's discretion or judgment. Expressed another way, it is the discretion and judgment of the official (who is vested with a discretionary power) which prevails and not that of a Court or a jury or a person aggrieved; and a Court cannot compel such official to exercise his discretion in a manner which will produce a result which the Court may deem wise or desirable. . . ." (emphasis added)*fn15
The issue with which we are now confronted is whether the trial court's grant of the writ of mandamus operated to usurp the proper exercise of the Board's discretion or whether it operated to remedy an arbitrary, fraudulent or illegal exercise of such discretion. Prior to reaching a conclusion on this point, it is necessary to determine the exact nature and scope of the Board's discretionary power under the applicable provision of the Home Rule Charter.
Section 9.9-101(3)*fn16 of the Philadelphia Home Rule Charter sets forth the obligations of the Board with respect to the examination of the recall petition. The language of that section imports a duty which is partially ministerial and partially deliberative. As to the ministerial aspect of the Board's duty, there appears to be little doubt that the Board is obliged to "complete its examination of the petition within fifteen days and shall
thereupon file the petition if valid or reject it if invalid." This duty is purely ministerial in the sense that the Board is required to act on the validity of the petition within the prescribed time frame. See, e. g., State v. Scott, 52 Nev. 216, 285 P. 511 (1930).
However, in reaching the decision of whether to accept the petition, the Board is accorded the ultimate discretion as to the validity of the petition. In exercising that discretion the Board was bound to do so in good faith and in a legally sound manner. The discretion, in other words, was not unrestrained. Tanenbaum v. D'Ascenzo, 356 Pa. 260, 51 A.2d 757 (1947).
The trial court, by concluding that the writ of mandamus should issue, obviously believed that the Board transcended the parameters of that discretion in rejecting the signatures which fell into the enumerated unacceptable categories. In so holding, the trial court fell into error by substituting its determination as to the sufficiency of the recall petition for that of the Board. See City Commission of Pampa v. Whatley, 366 S.W.2d 620 (Tex.Civ.App.1963); Fraser v. Cummings, 48 Cal.App. 504, 192 P. 100 (1920).
That the scope of review by a court in a mandamus proceeding is severely limited was made clear by this Court in Morrison v. Pittsburgh, 351 Pa. 95, 98, 40 A.2d 406, 407 (1944):
"'Where a person or body is clothed with judicial, deliberative, or discretionary powers, and he or it has exercised such powers according to his or its discretion, mandamus will not lie to compel a revision or modification of the decision resulting from the exercise of such discretion, though, in fact, the decision may have been wrong.' Souder v. Philadelphia et al., 305 Pa. 1, 8, 156 A. 245; Raffel v. Pittsburgh, 340 Pa. 243, 16 A.2d 392."
In Slessinger v. Fairley, 340 Pa. 273, 275, 16 A.2d 710, 711 (1940), this Court, considering the request for a writ
of mandamus for the reinstatements of several police officers, reasoned that:
". . . the learned court below took the position that [admissible hearsay evidence] was not sufficient to establish just cause for plaintiffs' dismissals. In this the court fell into error, since it had no authority in a mandamus proceeding to weigh admissible testimony and hold that the administrative body was not warranted in arriving at its decision. Raffel v. City of Pittsburgh et al., 340 Pa. 243, 16 A.2d 392."
Although the identical factual situation has not previously been considered by this Court, the question, as to the scope of the discretion vested in a board of elections (or municipal officer) in validating a recall petition, has been considered in other jurisdictions. In the case of Fraser v. Cummings, 48 Cal.App. 504, 508-09, 192 P. 100, 102 (1920), the California Court of Appeals was presented with a mandamus action to compel certification of a recall petition by the city clerk. In concluding that mandamus would not lie in that instance, the court stated:
"Where the city clerk refuses to act as required by the charter, or where there is a showing of such an abuse of discretion as would indicate that no discretion was exercised, the courts may by mandamus compel the clerk to perform his duty under the charter. But here the showing is that the clerk did perform his duty and if, in the exercise of that duty, he reached a different conclusion from what this court might reach on the question of the necessity of showing the cross streets, this court has no jurisdiction to substitute its judgment for his. In other words, the people of the city of Oakland have in their charter conferred upon the city clerk the exclusive power to finally determine whether a recall petition conforms to all requirements of the charter, and they have thereby denied to the courts the power of reviewing such determination in a
proceeding of this kind. It is the function of the courts to interpret the law as they find it, and to leave to the municipal officers the duty of executing the law as enacted. Where the people have conferred upon a ministerial officer an exclusive power to determine for them a certain fact, it is not the province of the courts to substitute their judgment for that of the officer so chosen. To do so would be to set aside the plain dictates of the law." (emphasis added)
Accord, City Commission of Pampa v. Whatley, 366 S.W.2d 620 (Tex.Civ.App.1963); Hartsock v. Merritt, 93 Cal.App. 365, 269 P. 757 (1928).
In the instant case, the trial court erred in granting the writ of mandamus by reversing the Board's determination that the petition was defective as a result of its finding that 115,818 signatures were void due to illegal notarizations and that 22,159 signatures were invalid because of irregularities in the appended affidavits. In reaching its decision, we believe the trial court was substituting its determination as to the propriety of the petition for that of the Board of Elections. This was clearly erroneous. The city charter vested the discretionary power as to the sufficiency of the petition for recall in the Board and it was error for the lower court to substitute what it believed to be a more appropriate finding for that of the Board. In the case of City Commission of Pampa v. Whatley, 366 S.W.2d 620, 623 (Tex.Civ.App.1963), the Texas Court of Civil Appeals stated:
"'Although mandamus is the appropriate remedy to compel the performance of a duty which is plain, positive, and ministerial in character and clearly imposed by law, it does not necessarily follow merely because the duty is discretionary or that the element of discretion exists in part, that mandamus will not lie. The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably Page 15} and within his jurisdiction; that is, upon facts sufficient to support his action.'"
Quoting Ferris, Extraordinary Legal Remedies § 206. See also Miller v. State, 53 S.W.2d 838, 840 (Tex.Civ.App.1932). It is true that the Board could not base its determination on arbitrary and capricious grounds or an erroneous interpretation of law: Garratt v. Philadelphia, 387 Pa. 442, 127 A.2d 738 (1956); Tanenbaum v. D'Ascenzo, 356 Pa. 260, 51 A.2d 757 (1947), but we are not persuaded that such was the case with respect to the above mentioned categories. Rather, we believe that the Board made a good faith determination within the lawful bounds of its discretion that the petition was defective as a result of the signatures which fell into the "illegal notarizations" and "irregular affidavits"*fn17 categories. Whether this Court would adopt the stringent criteria employed by the Board if we were charged with the deliberative power to certify the recall petition is irrelevant. The discretionary power to determine the validity of the recall petition was vested neither in this Court nor the court below, but in the Board of Elections. As long as that body exercised such deliberative powers within the ambit of the authority granted to it in the Home Rule Charter, the trial court was not at liberty to substitute its determination for that of the Board.
It must be remembered that in order for the appellees to be entitled to the issuance of the writ of mandamus,
they must demonstrate that they have a clear legal right to such remedy. The burden cannot be shifted to the Board of Elections to justify its decision. We, therefore, conclude that the Board did not exceed its discretionary powers regarding the invalidation of those signatures which fell within the above mentioned classifications and that the trial court erred in granting the writ of mandamus in the instant case.
II. Sufficiency of the Recall Petition
In regard to the sufficiency of the petition, the court below held that the Board of Elections had acted arbitrarily and contrary to law when it rejected approximately 67,000 signatures on the petition.*fn18 Having validated these, the court held that sufficient signatures had been presented for the Board to file the petition and place the recall question on the ballot.*fn19 We reverse the finding that the required number of signatures was presented because the court below, in this mandamus action, improperly substituted its judgment for that of the Board.
The Board found that 57,494 signatures were accompanied by irregular affidavits, but it rejected only 22,159 for this reason alone.*fn20 The affidavits were found to be
false for either of two reasons: (1) there were gross irregularities on the petitions to which they were appended; or (2) the affiants had falsely sworn as to their addresses or their status as registered voters in Philadelphia. The court below, overturning the ruling of the Board that these 22,159 signatures should not be counted because of the false affidavits, added them to the already validated signatures. In so doing, the court erred.
The Charter sets out the requirements for the recall petition as follows:
"(2) Each elector signing a recall petition shall add to his signature his occupation, his residence, stating the ward, and the date of signing. Signatures on a recall petition may be on separate sheets but each sheet shall have appended to it the affidavit of some person, not necessarily a signer of the petition, that to the best of the affiant's knowledge and belief the persons whose signatures appear on the sheet are registered electors of the City, or of the district, as the case may be, that they signed with full knowledge of the contents of the petition, and that their residences are correctly given."
Charter, § 9.9-101(2) (emphasis added). It then proceeds to delineate the Board's power with regard to any petition filed:
"(3) A recall petition shall be tendered for filing to the board of elections having jurisdiction over elections in the City. Such board shall examine it to see whether it contains a sufficient number of apparently genuine signatures. The board may question the genuineness of any signature or signatures appearing on the recall petition and if it shall find that any such signature or signatures are not genuine, it shall disregard them in determining whether the petition contains a sufficient number of signatures. It shall also disregard any signature dated more than sixty days before the date the petition was tendered for filing.
the purported signators.*fn22 We are not concerned here with the validity of the particular signatures which led the Board to challenge these affidavits. The issue before us is whether the Board could properly find the affidavits to be false based upon the large number of such defects which appeared on these sheets.
Our courts have held that an affiant must have some knowledge of the facts in the affidavit to which he is swearing. Socialist Labor Case, 332 Pa. 78, 1 A.2d 831 (1938); Frank Petition, 173 Pa. Super. 400, 98 A.2d 255 (1953); In re Nomination Petition of Elliott, 26 Pa. Commw. 20, 362 A.2d 438 (1976). We do not find it to be an unreasonable inference from the evidence before the Board that the affiants were aware of these irregularities and, therefore, could not have properly sworn to these affidavits. Such patent irregularities raise a question as to the accuracy of the affiant's statement that to the best of his "knowledge and belief the persons whose signatures appear on the sheet are registered electors of the City . . . that they signed with full knowledge of the contents of the petition, and that their residences are correctly given." Charter, § 9.9-101(2).
Additionally, there arose a negative inference from the failure of the affiants to answer the Board's subpoenas and to explain the discrepancies in their petitions. When a party having control of material evidence fails to produce it, an inference arises that the evidence would be unfavorable to that party. See Downey v. Weston, 451 Pa. 259, 301 A.2d 635 (1973); Haas v. Kasnot, 371 Pa. 580,
A.2d 171 (1952); Lutsko v. Department of Transportation, 13 Pa. Commw. 150, 318 A.2d 361 (1974). The subpoenas were issued in order to permit the affiants to explain the irregularities. Such an opportunity negates any conclusion that the Board's finding was arbitrary. It was for the Board to weigh these findings against the facial validity of the affidavits. Where, as here, there is evidence upon which the Board could base its determination, the court, in a mandamus action, cannot substitute its judgment as to the weight of such evidence. Slessinger, supra; Raffel, supra.
The Board also properly rejected those affidavits in which the affiant had sworn to false statements. Whether the statements were mandated by the Charter, or otherwise material, is not the issue. This Court will take a strict approach when the probity of the process is involved. See In re Nomination Petition of Cianfrani, 467 Pa. 491, 359 A.2d 383 (1976). Any falsity in an affidavit casts doubt on the accuracy of the entire affidavit and thus, the authenticity of the petition. The Board could properly conclude that the affidavits were false.*fn23
However, the court below held that even if these affidavits were false the otherwise valid signatures should not be discounted. This holding was also in error. The Charter itself requires that "each sheet shall have appended to it the affidavit of some person, not necessarily a signer of the petition, that to the best of the affiant's knowledge and belief the persons whose signatures appear [have met certain requirements]." Charter, § 9.9-101(2). The Board shall eliminate any sheet which does not have the required affidavit attached. Charter, § 9.9-101(3).
As Mr. Justice Nix stated for the Court in Cianfrani, supra:
"[O]ur cases have made clear that the provisions of the election laws relating to the form of nominating petitions and the accompanying affidavits are not mere technicalities but are necessary measures to prevent fraud and to preserve the integrity of the election process. See, e. g., Catherine Township Liquor Referendum Case, 382 Pa. 291, 293, 114 A.2d 145, 146 (1955); Harrisburg Sunday Movie Petition Case, 352 Pa. 635, 638, 44 A.2d 46, 47 (1945). The requirements of sworn affidavits are to insure the legitimacy of information crucial to the election process. Thus, the policy of the liberal reading of the Election Code cannot be distorted to emasculate those requirements necessary to assure the probity of the process."
Id. at 494, 359 A.2d at 384 (emphasis added). The Court went on to hold that "a false affidavit must be at least equated with the failure to execute the affidavit." Id. Since affidavits are necessary for the probity of the recall process, the submission of false affidavits did not comply with the Charter provision that the required affidavits be appended and, therefore, the signatures were properly rejected by the Board. This holding reaches not only the 22,159 signatures rejected under this category, but the entire 57,494 signatures accompanied by these affidavits. Thus, regardless of the validity of these signatures under any of the other categories, they must be rejected if accompanied by a false affidavit.
The next classification to which we turn is that termed "illegal notarizations." The court below held that the Board's rejection of 115,818 signatures for this reason was erroneous because, even if the notaries acted improperly, this should not invalidate otherwise proper signatures. We disagree. The Board acted properly when it found these notarizations to be illegal and refused to count the signatures to which the affidavits were attached.
The court, therefore, was in error in substituting its judgment when the Board acted neither arbitrarily nor contrary to law.
The Notary Public Law provides in pertinent part: "No notary public may act as such in any transaction in which he is a party directly or pecuniarily interested." Act of August 21, 1953, P.L. 1323, § 19(e), 57 P.S. § 165(e) (1964). The purpose of such a statute is to ensure impartiality on the part of a notary with regard to the matter before him. This policy was articulated in a case concerning a statute which provided that no bank officer or stockholder could serve as a notary public.
"A notary has a sort of judicial power. His protests, attestations, and other official acts, certified under his hand and seal of office, are evidence of the facts therein certified. It is necessary, therefore, that he should not be interested in favor of the parties who are oftenest invoking his services."
Commonwealth v. Pyle, 18 Pa. 519, 520 (1852).
In the present case, affidavits notarized by sixteen people were found by the Board to have been illegally notarized because these people had a direct interest in the matter. These sixteen included the attorney for the Recall Committee, the coordinator and two salaried employees of the Committee who were also circulators of the petition, and twelve persons who were only circulators.*fn24 What degree of interest would bar a person from acting as a notary public is a question to be answered on the facts of each case. See Schirmer v. Myrick, 111 Vt. 255, 20 A.2d 125 (1940); 66 C.J.S. Notaries § 6 at 618. On the facts of this case, these people had a direct interest
within the meaning of our statute which would bar their notarization of these affidavits.
These persons were separate and apart from the general public with regard to their interest in this petition.*fn25 They were dedicated to the success of this petition, eventually seeking the removal of the Mayor. All were actively involved in the yeoman effort to promote the recall, whether in the organization of the drive or in the actual solicitation of the signatures necessary for its success. When one steps beyond the point of signing his name to a petition and actually solicits other signatures, he has more than a general interest as a citizen in the outcome. By notarizing these affidavits they were performing an act essential to the achievement of their interests since affidavits are required for filing of the petition. Charter, § 9.9-101(3). They were advancing their own interests by ensuring the success of their efforts and the achievement of their political goals. This is the type of action by a notary public which the statute is designed to prevent because the impartiality which lends credence to the authenticity of the affidavit is destroyed. See, e. g., Commonwealth v. Pyle, supra. This rule has been applied where a candidate notarized the affidavits of circulators of his own nomination petition. State ex rel. Reed v. Malrick, 165 Ohio St. 483, 137 N.E.2d 560 (1956); Schirmer v. Myrick, supra. The key to such decisions appears to be the destruction of impartiality by the candidate's interest in having his nomination succeed. We see no reason to distinguish on the basis of candidacy. Here, these people had an interest in a similar
political goal -- getting a question on the ballot -- which was advanced by their actions.*fn26
We therefore hold that Section 19(e) of the Notary Public Law barred these people from acting as notaries in this case. Since this section is a limitation upon the power of notaries to act, their acts were nullities and the affidavits were void. The Board, therefore, properly rejected the signatures to which these void affidavits were appended. Charter, § 9.9-101(3). See Cianfrani, supra. The court below is reversed.
While either of these issues alone is dispositive of the issue of sufficiency,*fn27 we note that the court below was correct in holding that the Board acted erroneously under the law in striking the signatures in the following categories: "insufficient signature;" "abbreviations," "initials," "incorrect ward;" and "forgeries/alterations." The signatures rejected for those reasons should have been counted as valid and the court properly corrected the abuse of the Board's discretion.
III. Constitutionality of Recall
Though we reverse the court below on procedural grounds, it is still necessary to resolve the question of the constitutionality of the recall provisions in the Philadelphia Home Rule Charter. We understand that many
Pennsylvania municipalities, boroughs and townships have or are presently considering the inclusion of recall provisions in their governing charters, and we would be neglectful of our duty if we did not promptly rule on this matter. All sides in this contest have argued with great learning and skill the constitutional validity of recall. We are convinced, after listening to and reading these arguments, that recall, as provided for in the Philadelphia Home Rule Charter, is violative of the Pennsylvania Constitution, Article VI, Section 7.*fn28 Rather than dashing the hopes and expectations of citizens around the state who may approve recall proposals only to find, by a later ruling of this Court, that their actions were to no avail, we prefer to set guidelines for the future. See Schultz v. Philadelphia, 385 Pa. 79, 122 A.2d 279 (1956).
Undoubtedly, the entire Home Rule Charter of Philadelphia has the force and status of an enactment of the legislature. Addison Case, 385 Pa. 48, 122 A.2d 272 (1956). As such, it is presumed constitutional and the burden of proving a violation rests on those who allege unconstitutionality. Cali v. Philadelphia, 406 Pa. 290, 177 A.2d 824 (1962); Statutory Construction Act of November 25, 1970, P.L. 707, added December 6, 1972, P.L. 1339, § 3, 1 Pa.C.S. § 1922(3). The presumption in favor of the constitutionality of statutes is a strong one, reflecting "on the part of the judiciary the respect due to the legislature as a co-equal branch of government." School Districts of Deer Lakes and Allegheny Valley v. Kane, 463 Pa. 554, 562, 345 A.2d 658, 662 (1975). Indeed, as we have stated before, we must defend statutes against constitutional attack unless they "clearly, palpably and plainly" violate the Constitution. Daly v. Hemphill, 411 Pa. 263, 271, 191 A.2d 835, 840 (1963). But, the presumption is neither irrebuttable nor conclusive.
The judiciary, no less than the legislature, is sworn to uphold the Supreme Law, the Constitution. It is the "absolute framework of government," adopted by the people of Pennsylvania, "and no person nor branch of government has any more power than is provided" therein. Shapp v. Butera, 22 Pa. Commw. 229, 233, 348 A.2d 910, 912 (1975); Cali v. Philadelphia, supra; Commonwealth ex rel. Truscott v. Philadelphia, 380 Pa. 367, 111 A.2d 136 (1955); Bowman's Case, 225 Pa. 364, 74 A. 203 (1909). When constitutional powers have been exceeded by a legislature or a municipality, it is the obligation of the judiciary to preserve the fundamental law and declare contrary actions null and without effect.
The constitutional power we are here concerned with is contained in Article VI, Section 7, and governs the removal of civil officers:
" All civil officers shall hold their offices on the condition that they behave themselves well while in office, and shall be removed on conviction of misbehavior in office or of any infamous crime. . . . All civil officers elected by the people, except the Governor, the Lieutenant Governor, members of the General Assembly and judges of the courts of record, 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 added)
This provision establishes in no uncertain terms that elected civil officers may be removed from office only for cause. So long as they "behave themselves well," said officers "shall hold their offices." "Removal is the penalty for misbehavior." Bowman's Case, supra, at 367, 74 A. at 204. Furthermore, the provision allows for removal, after due process has been accorded the officer, upon conviction of "misbehavior in office or of any infamous crime," or "on the address of two-thirds of the Senate." See Houseman v. Commonwealth, 100 Pa. 222 (1882).
For constitutional officers, or officers created by the Constitution, the methods of removal provided for in Article VI, Section 7, are exclusive. Bowman's Case, supra; Marshall Impeachment Case, 360 Pa. 304, 62 A.2d 30 (1948). The legislature, however, may determine different methods of removal for legislatively created officers. Article VI, Section 1, provides that: "All officers, whose selection is not provided for in this Constitution, shall be elected or appointed as may be directed by law." The authority so conferred necessarily implies the power to "establish a method for the incumbent's removal." Marshall Impeachment Case, supra, at 310, 62 A.2d at 33; Weiss v. Ziegler, 327 Pa. 100, 193 A. 642 (1937); Milford Township Supervisors' Removal, 291 Pa. 46, 139 A. 623 (1927); Commonwealth ex rel. Vesneski v. Reid, 265 Pa. 328, 108 A. 829 (1919). This power attaches to both legislatively created, appointed civil officers, Watson v. Pennsylvania Turnpike Commission, 386 Pa. 117, 125 A.2d 354 (1956), and elected civil officers created by the legislature. Weiss v. Ziegler, supra; Milford Township Supervisors' Removal, supra. The power in regard to elected civil officers is limited, however, by the specific requirement of Article VI, Section 7, that all such officers be removed only for cause. Thus, while the legislature may provide for different methods of removal, different, for example, from impeachment, the method chosen must always be premised on cause, demonstrated after notice and hearing, and sufficient, under the Constitution, to permit removal. The "cause" requirement of Article VI, Section 7, is a broad requirement, expressly applicable to all civil officers, whether they be created by the Constitution or the legislature. The legislature is bound to follow its dictates when it determines a method of removal for an elected civil officer. See Richie v. Philadelphia, 225 Pa. 511, 74 A. 430 (1909).
We need not rely solely on the precise words of the Constitution to support the conclusion stated above for
there are many cases which have reached the same determination. In Milford Township Supervisors' Removal, supra, the Court upheld the constitutionality of a township statute providing for the removal of the township supervisor, an elected officer created by the legislature, upon proof, in the court of quarter sessions, of neglect of duty or other malfeasance in office. Id., 291 Pa. at 50, 139 A. at 624-25. The Court held that the statute created a permissible removal method, pursuant to Article XII, Section 1 (now Article VI, Section 1), as it was conditioned on proof of cause:
"It has been frequently decided . . . that, where a term of office is subject to the control of the Legislature, that tribunal may abolish the office, and thereby constitutionally oust the officer during the running of his term [citations omitted]. It would seem logically to follow that . . . a general act, providing for a forfeiture on a judicial determination of a breach of the constitutional 'condition that they behave themselves well while in office ' . . . ought also to be permissible . . . ."
Id., at 51, 139 A. at 625 (emphasis added).
Milford, supra, was followed by the Court in Weiss v. Ziegler, supra, a case involving the removal provisions of the School Code of 1911, which provided for the removal of District School Superintendents "after hearing, by a majority vote of the board of school directors of the district, for neglect of duty, incompetency, intemperance, or immorality, of which hearing notice of at least one week has been sent by mail to the accused . . . ." Id. 327 Pa. at 101, 193 A. at 643. See also Lumley v. Hughestown Borough Town Council, 362 Pa. 532, 66 A.2d 833 (1949); Marshall Impeachment Case, supra.
The need for cause and due process in any legislatively created means of removal for elected civil officers was especially emphasized in Foltz Appeal, 370 Pa. 567, 88 A.2d 871 (1952). Pursuant to the Township Code, 682
citizens of Sewickley Township filed in the lower court a complaint and petition for the removal of the elected township supervisors. The court below, however, found insufficient cause to remove the officers and refused to declare the offices vacant. On appeal to this Court, Mr. Justice Musmanno, speaking for the Court, held no malfeasance or misfeasance had been shown and that removal of the elected officers, therefore, was not possible:
"When the people of any municipality, in a duly constituted election, select certain individuals to conduct their local government, those representatives of the people may be removed from office only upon showing of a perverseness which amounts to criminality or culpable indifference to their official duties. This Court, speaking through Mr. Justice Simpson, aptly said in the case of Commonwealth ex rel. Vesneski, Appellant, v. Reid, 265 Pa. 328, 333, 108 A. 829, 831:
'. . . the people are entitled to the services of the officer during the entire term for which they elected him (Lloyd v. Smith, 176 Pa. 213, 35 A. 199), unless he be removed in the way prescribed by the Constitution, if the officer is a constitutional officer (Bowman's Case, 225 Pa. 364, 74 A. 203), or by the Legislature or under its authority in the manner provided by Constitution or statute, if the officer is not a constitutional officer.'
There are certain mandatory functions required of township supervisors, the failure to perform which will subject them to removal. Crane's Appeal, 344 Pa. 624, 26 A.2d 457. This does not mean, however, that they should be threatened with dismissal for honest errors in judgment or for mistakes in administration not occasioned by cupidity or pathological sloth. People demand of their representatives government which is efficient and in meticulous keeping with the highest standards of devotion to their interests. But they are not prepared to dismiss their public officials simply
because they do not achieve perfection in every minute detail of bureaucratic operation. It is quite obvious that the officeholder who must perform his duties with the sword of Damocles constantly hanging over his head can be of little use to the citizens who have the right to expect of him the demonstration of initiative and energy in advancing their welfare within the orbit of their prescribed duties and trust."
Id. at 571-72, 88 A.2d at 873 (emphasis added).
It is clear, from the foregoing, that the power of the legislature to shape and frame the tenure of legislatively created civil officeholders must be considered together with the requirement of Article VI, Section 7, that all elected civil officers be removed only for sufficient cause established by due process. The Constitution authorizes the adoption of alternative means of removal subject to the express rule that removal be for cause. A removal scheme which is premised on something less is unconstitutional and void.
We hold that the recall provisions of the Philadelphia Home Rule Charter established such a scheme and, thus, are unconstitutional. In the instant matter, the recall of the Mayor of Philadelphia, pursuant to those provisions, was attempted. The Mayor's office is legislatively created and, so, the legislature may determine the method of removal for that office. Milford Township Supervisors' Removal, supra. But the Mayor, himself, is an elected "civil officer," and his removal, no matter what method is employed, must be for cause, after notice and hearing have been accorded the officer. See Milford, supra; Georges Township School Directors, 286 Pa. 129, 133 A. 223 (1926); Commonwealth ex rel. Vesneski v. Reid, 265 Pa. 328, 108 A. 829 (1919). The recall provisions of the Philadelphia Home Rule Charter, enacted pursuant to the Act of April 21, 1949, P.L. 665, § 1 et seq., 53 P.S. § 13101 et seq., require neither cause nor due process before an elected civil officer may be forced to either resign
or face a recall election. Recall is "initiated upon petition signed by registered electors," and every such petition "shall name the officer against whom it is directed." Title 351, Pennsylvania Code, § 9.9-101(1). Yet, as the Charter is presently written, the officer's name, alone, may serve as the motivating force behind his removal. This procedure is antithetical to Article VI, Section 7 of the Constitution which ensures that duly elected officials are not removed from office by whim or caprice. Thus, the recall provisions fail the constitutional test, "clearly, palpably and plainly," and are invalid.
The order of the court below is reversed.
O'BRIEN, Justice (concurring).
I agree with the opinion of Chief Justice Jones that the recall provisions of the Philadelphia Home Rule Charter are unconstitutional. I am unable, however, to agree with the reasoning of the opinion of Chief Justice Jones and hence this concurring opinion.
All legislative enactments, including the Philadelphia Home Rule Charter, are presumed to be constitutional. This presumption can be rebutted if the recall provisions of the Charter "clearly, palpably and plainly" violate the Constitution. Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897, 900 (1975).
Article VI of the Pennsylvania Constitution deals with "Public officers" and their removal. This article has two specific sections dealing with removal of "public officers" which read as follows:
"The Governor and all other civil officers shall be liable to impeachment for any misbehavior in office, but judgment in such cases shall not extend further than to removal from office and disqualification to hold any office of trust or profit under this Commonwealth. The person accused, whether convicted or acquitted, shall nevertheless be liable to indictment, trial, judgment and punishment according to law." (Emphasis supplied.)
" All civil officers shall hold their offices on the condition that they behave themselves well while in office, and shall be removed on conviction of misbehavior in office or of any infamous crime. Appointed civil officers, other than judges of the courts of record, may be removed at the pleasure of the power by which they shall have been appointed. All civil officers elected by the people, except the Governor, the Lieutenant Governor, members of the General Assembly and judges of the courts of record, 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.)
These two sections of the Constitution are the only ones that speak to the issue of removal of civil officers. The opinion of Chief Justice Jones believes that any removal procedure can be constitutional as long as removal is based on cause. It is my opinion that any removal procedure not specifically mentioned in the Constitution is invalid.
The opinion of Chief Justice Jones and the dissenting opinions of Mr. Justice Eagen and Mr. Justice Pomeroy speak of the distinction between constitutional and non-constitutional officers. In Milford Township Supervisors' Removal, 291 Pa. 46, 139 A. 623 (1927), this court held that non-constitutional officers could be removed in a legislatively provided manner, even though the procedure was not mentioned in the Constitution. I find it impossible to reconcile Milford Township*fn1 with the Constitution and sound principles of constitutional construction.
It is well settled that a state constitution, as opposed to the Federal Constitution, is a limiting instrument. As this court stated in Com. v. Benn, 284 Pa. 421, 432, 131 A. 253, 256 (1925), ". . . the power of a state legislature is supreme in all matters, except in so far [sic] as it may be restricted by the Constitution . . . ." As Article VI, §§ 6 and 7 must be construed as restricting the allowable methods for removal of all civil officers, it becomes clear that the "recall" provisions of the Philadelphia Home Rule Charter are unconstitutional.
This court, in the past, has used Article VI, § 1, of the Pennsylvania Constitution, which provides: "All officers, whose selection is not provided for in this Constitution, shall be elected or appointed as may be directed by law," in distinguishing constitutional from non-constitutional officers for purposes of removal from office. In Weiss v. Ziegler, 327 Pa. 100, 104, 193 A. 642, 644 (1937), this court, in speaking of Article XI, Section 1 (the forerunner to Article VI, Section 1), stated:
". . . The authority so conferred to provide for the election or appointment of other officers necessarily
involves and implies legislative power to annex conditions of tenure." (Emphasis supplied.)
While Article VI, Section 1, implies the power to provide for conditions of tenure for non-constitutional officers, said conditions cannot include methods of removal, because Article VI, Sections 6 and 7, specifically enumerate the methods and the reasons for removal of all civil officers. It is well settled that a conflict between specific and general provisions in the Constitution will be resolved in favor of the specific provisions. Lennox v. Clark, 372 Pa. 355, 93 A.2d 834 (1953).
I believe that the specific language on removal in Article VI, §§ 6 and 7, controls and, therefore, removal is not a "condition of tenure" that would permit a different method of removal for non-constitutional officers. Viewed in this light, I believe the distinction between constitutional and non-constitutional officers is irrelevant on the removal question.
The removal provisions in Article VI relate to all civil officers. As our Constitution must be viewed as an instrument restricting the powers of the legislature, inclusion of the removal provisions necessarily restricts the legislature from providing for other methods. In Com. ex rel. Smillie v. McElwee, 327 Pa. 148, 158-159, 193 A. 628, 633 (1937), this court stated:
". . . No principle is more firmly imbedded in our law than that when the Constitution expressly provides a single method for accomplishing a particular purpose that method is exclusive. . . . The abolition of certain offices is a legislative function, but the abolition of officers is not." (Citations omitted.) (Emphasis in original.)
It is my opinion that the constitutional scheme of removal is reasonable and comprehensive, covering all civil officers both elected and appointed. Statutes which attempt to legislate in areas covered by the Constitution
must meet the test of the Constitution rather than the Constitution meeting the test of the statutes.
I realize that removal by the constitutionally allowed method may be cumbersome. The legislature and the courts, however, cannot allow procedures proscribed by the Constitution. I express no opinion on the wisdom or necessity of "recall". If the people of this commonwealth desire that "recall" be allowed, I believe the Constitution must be amended to allow it.
NIX, Justice (concurring).
Recognizing the major importance of our decision today, I am constrained to set forth those reasons which occasioned my decision in this matter. The issues as I perceive them are whether, assuming the validity of the recall provision, there has been sufficient compliance with the terms of that provision as to require the acceptance of the tendered petitions. Secondly, and most importantly, is the question of the validity of a recall concept in light of the language of the Constitution of this Commonwealth. I recognize, as noted by Mr. Justice Eagen, that often a constitutional issue is not reached where a cause can be resolved on non-constitutional grounds. While this is generally a salutary principle, I agree with Mr. Chief Justice Jones that it would not be appropriately applied in this instance. In view of the interest of numerous communities in this Commonwealth concerning the feasibility of a recall provision, I believe it to be our responsibility, since the question has been raised, to address the constitutional issue and thereby avoid the uncertainty that would otherwise prevail.
For various reasons, the opinion of Mr. Chief Justice Jones found that the petitions offered by the appellees were insufficient. In my judgment that finding can be sustained solely upon the invalidity of the affidavits notarized by the fifteen circulators and/or coordinators.*fn1a I
accept and concur in the reasoning of the Court in declaring these petitions invalid. Since the elimination of these signatures reduces the total of valid signatures to a number insufficient to require the Board to accept the petition, it is therefore unnecessary for me to consider the remaining categories of signatures which were also deemed to be invalid.
The most serious question presented is that of the constitutional validity of a recall provision. I believe that the third clause in Article VI, Section 7 of the Pennsylvania Constitution stands as a clear limitation on the power of the legislature in that it establishes the sole and exclusive means for removing from office any elected official in the Commonwealth,*fn2 regardless of whether the elected office concerned is considered a "constitutional" office, or an office created by legislative fiat. This interpretation, in my view, is mandated by a plain and untechnical reading of the language of that provision. I therefore concur with the holding of the Court that the recall provision in the Philadelphia Home Rule Charter is unconstitutional.
A proper analysis of the meaning and import of a constitutional provision must begin, as always, with an examination of the language itself. Further, we are reminded at the outset that the Constitution is not to receive a technical construction, but is to be interpreted in light of ordinary language, Commonwealth ex rel. Tate v. Bell, 145 Pa. 374, 22 A. 641 (1891), and that it is entitled to a construction, as nearly as may be, in accordance with the intent of its makers. O'Connor v. Armstrong, 299 Pa. 390, 149 A. 655 (1930); Moers v. City of Reading,
Pa. 188 (1853). With these fundamental principles of construction in mind, we turn to Article VI, Section 7, which provides in full as follows:*fn3
All civil officers shall hold their offices on the condition that they behave themselves well while in office, and shall be removed on conviction of misbehavior in office or of any infamous crime. Appointed civil officers, other than judges of the courts of record, may be removed at the pleasure of the power by which they shall have been appointed. All civil officers elected by the people, except the Governor, Lieutenant Governor, members of the General Assembly and judges of the courts of record, shall be removed by the Governor for reasonable cause, after due notice and full hearing, on the address of two-thirds of the Senate.
A plain reading of this provision reveals three distinct clauses relating to the removal of "civil officers".
The first clause applies, without limitation, to "all civil officers," and directs that such officers "shall be removed" on conviction of crime or misbehavior in office. This Court has held many times that this provision is mandatory, Bowers v. Pennsylvania Labor Relations Board, 402 Pa. 542, 167 A.2d 480 (1961), even self-executing, Commonwealth v. Hiltner, 307 Pa. 343, 161 A. 323 (1932), and that it applies to all officers, whether they are appointed or elected, and whether they are the so-called "constitutional" officers, or those holding an office created by legislative act. McSorley v. Pennsylvania Turnpike Commission, 390 Pa. 81, 134 A.2d 201 (1957).
The second clause to Article VI, Section 7 is cast, however, in different terms. It employs language not mandatory nor compulsory ...