Commonwealth Ex Rel. Truscott v. Philadelphia

111 A.2d 136, 380 Pa. 367

• Court: Supreme Court of Pennsylvania
• Decided: January 12, 1955
• Docket: 143, Miscellaneous Docket 10
• Status: Published

Opinions

Opinion by

Me. Justice Bell,

The question presented is a narrow but very important one: Is the ordinance of Philadelphia’s City Council which abolishes the Board of Revision of Taxes invalid because it violates the Constitution?

Philadelphia City Council passed on August 16, 1954 an ordinance which abolished the Board of Revision of Taxes and established new City offices to which it transferred all the functions and duties theretofore performed by the Board of Revision of Taxes. The Commonwealth of Pennsylvania, at the relation of the attorney-general, filed a complaint in equity to restrain the enforcement of the aforesaid ordinance, claiming it was void because (1) it violated the Constitution of Pennsylvania, and (2) it was an unauthorized usurpation of power, and therefore invalid. The City filed a responsive answer; no factual issues were raised; and this Court took original jurisdiction.

We start with the well-settled principle that municipalities are not sovereigns; they have no original or fundamental power of legislation; they have the power to enact only those ordinances which are authorized by the Constitution or by an enabling act of legislature: Allentown School District Mercantile Tax Case, 370 Pa. 161, 171, 87 A. 2d 480; Genkinger v. New Castle, 368 Pa. 547, 84 A. 2d 303; 1 Dillon on Municipal Corporations, 5th. Ed. 449.

The so-called Home Rule Amendment to the Constitution, Article XV, §1, adopted November 7, 1922, provided: “Cities . . . may be given [by the legislature] the right and power 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.”

*

Pursuant to the Home Rule Constitutional Amendment, the General Assembly enacted on April 21, 1949, P. L. 665, 53 PS §3421.1, the First Class City Home Rule Act which empowered cities to frame and adopt a charter for its own government, subject to the limitations and restrictions prescribed by the legislature and provided it was not inconsistent with the Constitution of Pennsylvania or of the United States.

Pursuant thereto a charter commission framed and the citizens of Philadelphia adopted a Charter providing for local self-government on April 17, 1951 which by its terms became effective on January 7, 1952. The City Charter, unless restricted by the legislature or the Constitution, is sufficiently broad to permit City Council to re-group and re-organize offices in the city government.

The people of Pennsylvania, not the people of Philadelphia, adopted on November 6, 1951 an amendment to the Constitution of Pennsylvania known as the City-County Consolidation Amendment, viz., Article XIY, §8 of the Constitution.

Since the Constitution of Pennsylvania is the supreme law of the Commonwealth — unless it contravenes the Constitution of the United States — it is both wise and necessary to analyze and determine the pertinent provisions thereof, so far as they may affect or govern the question here involved.

Prior to the City-County Consolidation Amendment, Philadelphia had two governments, each of which was coextensive with the boundaries of the City of Philadelphia — a County government and a City government.

Paragraph or clause (1) of the City-County Consolidation Amendment provides: “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.”

Paragraph or clause (7) of the Constitutional Amendment — and, of course, the Amendment must be read as a whole — provides: “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, but such officers serving when this amendment becomes effective shall be permitted to complete their terms.” It will be instantly noted that City Council is not mentioned in clause (7), and the City Charter, which was to take effect on January 7, 1952, is not mentioned. The Amendment specifies in the clearest imaginable language “General Assembly” not “City Council”; and “the laws of the Commonwealth” not “City ordinances” or “City Charter.” Equally important and controlling, there was no City ordinance and no City Charter in effect at the time the Constitutional Amendment became effective on November 6, 1951; so the words “in such manner as may be provided by . . . this Constitution and the laws of the Commonwealth in effect at the time this amendment becomes effective/’ could not possibly be interpreted to mean the Charter of 1952 or the ordinance of 1954.

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 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

The language and meaning of the Constitutional Amendment is so clear that, to borrow the words of Chief Justice Stern in Carrow v. Philadelphia, 371 Pa. 255, 89 A. 2d 496: If it is “read with an eye to their plain and unequivocal meaning instead of with a straining after forced constructions and a seeking of ambiguities where none exist ... he who runs may read.”

The meaning of the Constitutional Amendment is made doubly clear by the language of this Court in Carrow v. Philadelphia, 371 Pa., supra, and in Lennox v. Clark, 372 Pa. 355, 93 A. 2d 834.

In Carrow v. Philadelphia, supra, Chief Justice Stern, speaking for the Court, said (pages 257, 258-259) : “Article XIV, section 1, of the Constitution designated the Sheriff as a county officer, and, since the employes in that office were not under civil service, they were subject to dismissal at the will of their employer. However, by the so-called City-County Consolidation Amendment, adding section 8 to Article XIV, which became effective when it was approved by the electorate on November 6, 1951, all county offices in Philadelphia were abolished and it was provided that all county officers should thereupon become officers of the City of Philadelphia, and, until the General Assembly should otherwise provide, * should continue to perform their duties and be elected, appointed, compensated and organized in such manner as might be provided by the Constitution and the laws of the Commonwealth in effect at the time the amendment became effective, the officers then serving to be permitted to complete their terms.

“As previously stated, the City-County Consolidation Amendment provided that, until the legislature should otherwise provide, all the county officers should continue to perform their duties and those then serving should be allowed to complete their terms,* but it will be noted that no provision was made in regard to the continuance in their positions of the employes of county offices. Accordingly that problem was dealt with in the new City Charter under the comprehensive authority granted to the city by the First Class City Home Rule Act. . . .”

In Lennox v. Clark, 372 Pa., supra, the Court specifically held that paragraph or clause (7) of the City-County Consolidation Amendment was self-executing and became effective immediately upon its adoption, to wit, November 6, 1951. This Court, again speaking through the Chief Justice, said (pages 363-4, 370) : “We start with the City-County Consolidation Amendment itself. It provides in clause (1) that ‘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.’ The crucial words there , to be noted are ‘hereby* and ‘henceforth.’ The county offices are abolished, not at some indefinite time in the future when a legislative body might so enact, but ‘hereby,’ that is, by virtue of the constitutional amendment itself, which in this respect, therefore, is obviously self-executing. It will be further noted that all the functions of county government, that is to say, all the activities or duties theretofore performed by the county officers, are thenceforth to be performed by the city; the city is to take over then and there, as part of its own government, the performance of the functions of the county government. This provision also is clearly self-executing. Clause (6) of the amendment provides: ‘This amendment shall become effective immediately upon its adoption.’ Clause (7) provides that ‘Upon adoption of this amendment all county officers shall become officers of the city of Philadelphia.’ Here again the amendment is manifestly self-executing, for the change from county to city officers is to take place upon adoption of the amendment— which, incidentally, occurred on November 6, 1951— and therefore without the necessity of any further action, legislative or otherwise. Thus the county offices were effectually brought into the structure of the municipal government. And of course, when the county officers became city officers their employes automatically became thereby city employes. It is true that clause (7) further states that ‘until the General Assembly shall otherwise provide,’ the county officers [having now become officers of the City of Philadelphia] ‘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, . . . ’. In other words the county, now city, officers were to carry on their duties or functions just as before the transformation took place and until such duties or functions should be changed by legislative action. *. . .”

It is crystal clear from the Constitutional Amendment itself, as well as from the aforesaid decisions of this Court, that no act of the Legislature or of City Council was necessary to abolish county offices; and no ordinance of City Council and no City Charter which was framed and adopted by the people of Philadelphia could transfer or change the duties and functions of former county officers because the Constitutional Amendment itself clearly provided that “all [former] county officers shall continue [as city officers] to perform their duties and be elected [or] appointed, compensated • and organized, as may be provided by . . . existing laws until the General Assembly shall otherwise provide.” *

The City now seeks to- evade and nullify the clear language of the Constitutional Amendment — which, we deem it necessary to repeat, is the supreme law of Pennsylvania — by contending that the words “General Assembly” mean “City Council”, i.e., “until the City Council shall otherwise provide.” Such a contention is absolutely and completely devoid of merit.

The Constitution of Pennsylvania provides in Article II, §1: “The legislative power of this Commonwealth shall be vested in a General Assembly which shall consist of a Senate and a House of Representatives.” Moreover, when the legislature twice passed the proposed Constitutional Amendment (of 1951) they knew, as they knew their ABC’s, what was meant by the words “General Assembly”. Furthermore, to pile Pelion on Ossa, for a hundred years the people of Pennsylvania have known that the words “General Assembly” mean the legislature, and in every village, township and farm they likewise know the difference between the General Assembly or State Legislature and a local council. When, therefore, the Constitutional Amendment which was adopted on November 6, 1951 — not, we repeat, by the citizens of Philadelphia, but by the citizens of the Commonwealth of Pennsylvania — provided that all county officers should continue to perform their duties “. . . until the General Assembly shall otherwise provide” the people of Pennsylvania did not mean “until the citizens of Philadelphia” or “until the City Council of Philadelphia shall otherwise provide”; they meant beyond the peradventure of a doubt what they so unmistakably said: “until the General Assembly shall othemoise provide.”

After the enactment of the Constitutional Amendment did the General Assembly otherwise provide? The answer to that question is clearly “No”. It is clear as crystal that the words of the Constitutional Amendment “until the General Assembly shall otherwise provide” express a future tense and. require a future Act of the Legislature to be passed after November 6, 1951. The City, of course, admits that no Act was passed by the Legislature after November 6 ,1951, which granted the City power to abolish, reorganize or control the Board of Revision of Taxes, but contends that the First Class City Home Rule- Enabling Act of 1949, plus the City Charter, which was adopted not by the General Assembly, but by the citizens of Philadelphia on April 11, 1951, were “taken together” “the equivalent” of an Act of the Legislature, “passed after November 6, 1951.”

In the first place, if the First Class City Home Buie Act of 1949 could be construed — contrary to its language — to give cities the unrestricted and unlimited right and power to exercise all the powers of local self-government it would be — so far as Philadelphia is concerned — in direct conflict with and therefore superseded or impliedly repealed by the provisions of the Constitutional Amendment of 1951 which by its express terms applies specifically and solely to Philadelphia. This Amendment clearly and unambiguously and unequivocally provides, as above noted, that “until the General Assembly shall otherwise provide . . . All county officers shall continue [as city officers of Philadelphia] to perform their duties and be elected, appointed, compensated and organized as may be provided by the Constitution and by existing laws of the Commonwealth in effect at the time this Amendment becomes effective.”

The City contends first, that the City Charter is, by virtue of the enabling Act of 1949, the equivalent of an Act of the General Assembly and hence (by virtue of its adoption on April 17, 1951) was an existing law on November 6, 1951, and secondly and irreconcilably, that, although adopted by the citizens of Philadelphia prior to November 6, 1951, it was the equivalent of an Act of the General Assembly enacted after November 6, 1951. The City overlooks (1) that on November 6, 1951 there were approximately a dozen existing laws of the Commonwealth which dealt specifically with the Board of Revision of Taxes or with other County offices, and it is these laws to which the Constitutional Amendment clearly and unquestionably refers; and (2) that the City Charter was not enacted by the General Assembly after November 6, 1951.

The fallacy of the City’s contention is made even clearer by their further and necessary contention that the latter part of the Constitutional Amendment is no barrier since it merely means that the (former county) officers must be paid until their terms are completed. Suffice it to say that this contention once again completely ignores the clear and controlling language of the Constitutional Amendment that such officers “shall continue to perform their duties and be elected, appointed, compensated or organized . . .”

We find no merit in the contentions of the City in support of this ordinance.

The Board of Revision of Taxes further relies upon the Act of August 26, 1953, P.L. 1476, 53 PS 3422-26, as a further demonstration that the City recognized— until the present suit — that City Council had only such powers of organization, abolition and legislation with respect to former county offices as the General Assembly might provide by an Act of Assembly enacted after November 6, 1951. The Act of 1953, which was passed by the “General Assembly”, • recited, inter alia: “The purpose of this Act is to carry out the intent and purpose of Article XV, section 1 of the Constitution . . . and Article XIV, section 8 of the Constitution ... by enabling the Council of the City of Philadelphia ... to abolish certain, offices, boards and commissions . . .” The Act then specifically authorized City Council “to legislate with respect to the election, appointment, compensation, organization, abolition . . . powers, functions and duties of the Coroner, Recorder of Deeds, City Treasurer, Clerk of the Court... , and the Board of Inspectors of the Philadelphia County Prison . . .” Under and pursuant to that Act of the General Assembly, City Council has abolished and reorganized all of the aforesaid, offices except clerk of the Court. The City replies that it sought and obtained Legislative approval in the Act of 1953 only out of caution and not because City Council was lacking in such power. Since the language of the Constitutional Amendment is clear, we need not consider or further discuss this contention.

The ordinance of City Council approved by the Mayor of Philadelphia on August 16, 1954 is unconstitutional and void.

The Court therefore enters the following Decree:

Decree

It Is Ordered, Adjudged And Decreed that the Mayor of the City of Philadelphia, the Director of Finance of the City of Philadelphia, and the City Council of Philadelphia, and their officers, agents and employees, are hereby restrained and enjoined from carrying into effect or enforcing any of the provisions of the ordinance enacted by the Council of the City of Philadelphia, and approved by the Mayor on August 16, 1954.

Each party shall pay its, his or their respective costs.

Italics, ours.