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CITY COUNCIL MEMBERS GEORGE X. SCHWARTZ ET AL. v. CONSUMERS EDUCATION AND PROTECTIVE ASSOCIATION ET AL. (04/13/81)

decided: April 13, 1981.

CITY COUNCIL MEMBERS: GEORGE X. SCHWARTZ ET AL., APPELLANTS
v.
CONSUMERS EDUCATION AND PROTECTIVE ASSOCIATION ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Consumers Education and Protective Association; Consumer Party; Tenant Action Group; Puerto Rican Alliance; Residents' Coalition; Lee Frissell, Executive Director, Consumers Education and Protective Association; Max Weiner, Chairperson, Consumer Party; John Brickhouse; Maisha Jackson; Eva Gladstein; Juan Ramos, President, Puerto Rican Alliance; Ralph Wynder; Father Joseph Kakalec, President, Philadelphia Council of Neighborhood Organizations; Shaheed Abdul-Haqq, and Ralph Goldstein v. George X. Schwartz, President of the City Council of Philadelphia; James J. Tayoun; Anna Cibotti Verna; Lucien E. Blackwell; John F. Street; Joan Krajewski; Harry P. Jannotti; Joseph E. Coleman; Louis C. Johanson; Brian O'Neill; Al Pearlman; Francis Rafferty; Augusta Clark; John Anderson; David Cohen; and Joan Specter, all members of the Philadelphia City Council; William J. Green, Mayor of the City of Philadelphia; Thomas Leonard, Controller of the City of Philadelphia; Joseph Sullivan; Edgar C. Campbell, Sr., Clerk of Quarter Sessions; Ronald R. Donatucci, Register of Wills of the City of Philadelphia; Margaret Tartaglione; Eugene E. J. Maier; John Kane, Philadelphia City Commissioners; Edward G. Rendell, District Attorney of Philadelphia; Gay P. Gervin, Treasurer of the City of Philadelphia; and G. Edward DeSeve, Director of Finance of the City of Philadelphia, No. 591, January Term, 1980, In Equity.

COUNSEL

Alan J. Davis, City Solicitor, with him, Judith N. Dean, Deputy City Solicitor, for appellants.

David Kairys, Kairys Rudovsky & Maguigan, with him, Peter Goldberger, National Lawyers Guild, for appellees.

President Judge Crumlish and Judges Wilkinson, Jr., Rogers, Blatt, Craig, Williams, Jr. and Palladino. Judges Mencer and MacPhail did not participate. Opinion by President Judge Crumlish. Judge Wilkinson, Jr., did not participate in the decision in this case. Dissenting Opinion by Judge Blatt. Judge Craig joins in this dissent.

Author: Crumlish

[ 58 Pa. Commw. Page 447]

This unique controversy presents a complex request to this Court for a resolution of the interrelationship between the Home Rule Amendment of November 7, 1922, Article IX, Section 2 of the Pennsylvania Constitution, the First Class City Home Rule Act of April 21, 1949, P.L. 665, the City-County Consolidation Amendment, Article XIV, Section 8, and the Philadelphia Home Rule Charter. Simply stated, we must determine whether City Council has the constitutional or statutory authority to affix the rate of compensation for its members and the other principal elected officers of the city, and, if so, whether any conditions subsequent need be met before that authority may be exercised. In addition, we are called upon to determine whether there exist any constitutional, statutory or common law limitations upon City Council's authority to ordain these salary increases after election to office but before the beginning of the term to which the new or re-elected members have been elected.

[ 58 Pa. Commw. Page 448]

On December 20, 1979, Bill No. 2357 was passed by the City Council of Philadelphia voting twelve to zero*fn1 and was signed four days later by the then-Mayor Frank L. Rizzo, well after the November 6, 1979 General Election.*fn2 The new ordinance outlined the following scheme of annual salary increases for the City's elected offices:

President, City Council $10,000 [55,000]

Majority Leader, City Council $11,000 [38,000]

Majority Whip, City Council $11,000 [37,000]

Minority Leader, City Council $11,000 [37,000]

Council Members $10,000 [35,000]

Mayor $10,000 [65,000]

City Controller $8,000 [50,000]

Clerk of Quarter Sessions $9,000 [35,000]

Sheriff $9,000 [35,000]

Chairman, City Commissioners $9,000 [37,000]

City Commissioners $9,000 [35,000]

Register of Wills $9,000 [35,000]

District Attorney $8,000 [50,000]

On January 8, 1980, Appellees*fn3 filed a suit in equity to enjoin the implementation of the pay scale for all

[ 58 Pa. Commw. Page 449]

    twenty-six elected offices.*fn4 On April 7, 1980, Philadelphia County Common Pleas Court Judge William M. Marutani entered a decree nisi enjoining the payment, acceptance or receipt of any increase in salary or benefits arising from the ordinance. Subsequently, cross-exceptions were filed and argument was heard by a panel of Judges Marutani, Jacob Kalish and Charles A. Lord, each of whom filed separate opinions. When the decree nisi was made absolute, the City appealed.

I. Genesis

Home Rule In Philadelphia -- History -- Law

One of the bitter effects of the War Between The States was the widespread political corruption found in the shattered and disillusioned state establishments of the Reconstruction Era.

As historical review so cogently reminds us, violence leads to suppression and opens the path for parasitic opportunists. Political bodies enjoyed no exemption, and so it was in this setting in the Southern

[ 58 Pa. Commw. Page 450]

States' struggle for survival that the movement toward placing increasing power and responsibility into the hands of those most able and willing to rejuvenate their self-respect was born. The people in the towns, boroughs and hamlets were given the proclamation and mandate to restore and preserve their heritage.

In the Northern States and, in particular, Pennsylvania, the time for accepting self-governing, home-ruled municipal bodies had not yet come. It was not until the visionaries of the 20th Century foresaw the need for this kind of municipal self-government that the concept of home rule was placed before the people of the Commonwealth for their guidance and approval.*fn5

On November 7, 1922, the Pennsylvania Constitution was amended to permit the General Assembly to implement home rule at its own discretion. Article XV, Section 1, now Article IX, Section 2, empowered cities "to frame and adopt their own charters and to exercise the powers and authority of local self-government, subject, however, to such restrictions, limitations, and regulations as may be imposed by the legislature."*fn6 However, the General Assembly after twenty-seven years of procrastination finally surrendered its control over municipal affairs to local government, but then only to cities of the first class.*fn7 Cautious as it was in permitting home rule then limited to Philadelphia, the legislature's delegation of powers and duties was uncharacteristically generous.

[ 58 Pa. Commw. Page 451]

The First Class Home Rule Act, Act of April 21, 1949, P.L. 665, as amended, 53 P.S. §§ 13101 et seq., was enacted to effectuate the constitutional home rule amendment's authorization of local self-government. Section 17, 53 P.S. § 13131, specifically provides that a city which frames and adopts its own charter according to the legislative grant

     shall have and may exercise all powers and authority of local self-government[,] . . . shall have complete powers of legislation and administration in relation to its municipal functions [,] . . . may provide for a form or system of municipal government and for the exercise of any and all powers relating to its municipal functions, not inconsistent with the Constitution of the United States or of this Commonwealth, to the full extent that the General Assembly may legislate in reference thereto as to cities of the first Class, and with like effect [,] . . . the city may enact ordinances, rules and regulations necessary and proper for carrying into execution the foregoing powers and all other powers vested in the city by the charter it adopts or by this or any other law.

On April 17, 1951, imbued with a spirit of reform and innovation, the electors of the City, tired and resentful of its "corrupt and contented" reputation, seized upon the legislature's grant of authority and adopted a Home Rule Charter, to take effect January 7, 1952, at the commencement of the January 1952-1956 term. The expressed purpose of the Charter as prepared by the Philadelphia Charter Commission*fn8

[ 58 Pa. Commw. Page 452]

    under Article XV, Section 1 of the Constitution and the First Class City Home Rule Act was to assure the City the broadest, most comprehensive benefits of municipal self-government. Ordaining compensation for elective city offices, the Charter provided for Council membership in Section 2-100:

The Council shall consist of seventeen members, of whom ten shall be elected from districts and seven from the City at large. The terms of councilman shall be four years from the first Monday in January following the year in which they were elected except that a councilman elected to fill a vacancy shall serve only for the balance of the unexpired term. Each councilman shall receive a salary at the rate of $9,000 per annum, or such other sum as the Council shall from time to time ordain, and the President of the Council shall receive in addition a salary at the rate of $1,000 per annum, or such other sum as the Council shall from time to time ordain. (Emphasis added.) 351 Pa. Code § 2.2-100.

The Charter, in Section 3-600, further provided that the Mayor and other officers would be compensated as follows:

Until the Council shall otherwise ordain, annual salaries shall be payable in equal semimonthly installments as follows:

Mayor, $25,000;

City Controller, $15,000;

351 Pa. Code § 3.3-600.

[ 58 Pa. Commw. Page 453]

However, the Charter did recognize the impending City-County Consolidation Amendment in Section 1-102(2), 351 Pa. Code § 1.1-102(2), by providing that any additional executive or administrative power conferred on the City by amendment of the Constitution or laws of the Commonwealth shall be designated and distributed among new or existing officers, departments, boards or commissions of the City.*fn9

Prior to November 6, 1951, Article XIV, Section 1 of the Constitution specifically provided that county officers include the Sheriff, Register of Wills, Commissioners, Clerks of Court, and District Attorney. In Lennox v. Clark, 372 Pa. 355, 361, 93 A.2d 834, 837 (1953), our Supreme Court summarized the conditions as they existed in Philadelphia:

Nothwithstanding the consolidation of the city effected by the Act of February 2, 1854, P.L. 21, the structure of the government of Philadelphia continually grew more and more complex and ultimately completely outmoded. Instead of a unified system there existed dual governments. Entirely different rules and regulations prevailed in the city and the county offices; in the one the employes were under civil service, in the other way they were appointed without any examination as to their

[ 58 Pa. Commw. Page 454]

    qualifications; in the one they were barred from political activities, in the other they were wholly unrestricted in that respect; in the one the officers were compelled to seek their legal advice from the City Solicitor, in the other they were allowed to have their own counsel. These anomalies flourished in spite of the fact that all the offices and departments, city and county, participated in the government of the same compact area and its inhabitants. Moreover, the personnel of the county offices were paid, after the Consolidation Act of 1854, not out of any county treasury, for none such existed, but by the city, and their salaries and wages were, except in the case of elected officers, fixed and determined by the city council. (Act of May 2, 1945, P.L. 375, as amended by the Act of May 2, 1947, P.L. 134). It is no wonder, therefore, that over a great number of years there has been considerable popular agitation for the correction of this patch-work system and its uneconomic division of functions, and it was presumably in response to that agitation that the City-County Consolidation Amendment, the First Class City Home Rule Act and the Home Rule Charter came into being . . . .

On November 6, 1951, the people of Pennsylvania adopted Article XIV, Section 8, now Article IX, Section 13, known as the "City-County Consolidation Amendment." The Amendment immediately abolished all Philadelphia county offices, made them city offices, authorized city government to perform the functions of the county government, and instructed that " until the General Assembly shall otherwise provide, [these offices] shall continue to perform their duties and be elected, appointed, compensated and organized in such a manner as may be provided by

[ 58 Pa. Commw. Page 455]

    the provisions of this Constitution and the laws of the Commonwealth in effect at the time this amendment becomes effective . . . ." (Explanation and emphasis added.) Article IX, Section 13(a).

Subsequently, the Home Rule Act was supplemented by the legislature, Act of August 26, 1953, P.L. 1476, as amended, 53 P.S. § 13151, to carry out the commingled intent and purpose of the Constitution's Article XV, Section 1 Home Rule Amendment and Article XIV, Section 8 of the City-County Consolidation Amendment by enabling the Philadelphia City Council,

     pursuant to Section 1-102(2) of the Philadelphia Home Rule Charter, to integrate and merge within the framework of the government of the City of Philadelphia functions heretofore performed by certain officers, offices, boards or commissions, so that hereafter all of these functions may be carried out by officers, offices, departments, boards or commissions of the City of Philadelphia under the provisions of the Home Rule Charter . . . pursuant to the First Class City Home Rule Act. . . .

Although the language and meaning of the City-County Consolidation Amendment is unambiguous, its relationship with the Act of 1953 requires lucid explanation. For this, we refer to the instructions of Commonwealth ex rel. Truscott v. Philadelphia, 380 Pa. 367, 111 A.2d 136 (1955), where our Supreme Court declared unconstitutional and void an attempt by Philadelphia City Council to eliminate the Board of Revision of Taxes:

The clear and unmistakable meaning of clauses (1) and (7) of the Amendment when considered together is that all county offices as such are abolished by the Amendment and thenceforth the City shall perform all functions

[ 58 Pa. Commw. Page 456]

    which were formerly considered functions of county government; and county offices and county officers shall be considered and operated as city offices and City officers, except that such officers shall continue to perform their duties and be elected or appointed, compensated and organized in accordance with the Constitution and the existing laws of the Commonwealth -- not until the people of Philadelphia or the City Council shall otherwise provide, but -- 'until the General Assembly shall otherwise provide.' (Emphasis added.)

Id. at 372, 111 A.2d at 137-38.

And see Lennox v. Clark, supra, and Carrow v. Philadelphia, 371 Pa. 255, 89 A.2d 496 (1952). Clearly, City Council had only those powers of organization, abolition and legislation with respect to the former county offices as the General Assembly might provide by an Act of Assembly after November 6, 1951.

II. City Council Authority

Having outlined these constitutional and legislative authoritative directions, initially we conclude that Council members, the Mayor, and City Controller, as specifically enumerated officers, have been and remain city officials, then and now dependent upon the legislative branch of city government for compensation. Therefore, it is incumbent upon us to identify, if possible, whether ...


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