Mayer v. Hemphill

¶1Concurring Opinion by

¶2Since there are no provisions in the Philadelphia Home Rule Charter dealing specifically with the office of “acting mayor,” the Charter’s command that the President of City Council assume the office of mayor upon the death, resignation, or temporary disability of the mayor has raised problems concerning the privi*22leges and responsibilities of the acting mayor.1 The proper approach in this matter should be one of seeking the policy behind the particular Charter provision in question rather than attempting rigidly to categorize the acting mayor as mayor or councilman for all times and for all purposes.

¶3Appellant asserts—and the majority agrees—that our decision in Mayer v. D’Ortona clothes the acting mayor with the status and obligations of councilman. This is a complete misunderstanding of that decision. In Mayer v. D’Ortona, we merely held that the President of City Council did not forfeit his councilmanic seat when he assumed the office of acting mayor. One of the considerations contributing to that result was the unfairness which would result if the President of City Council was unable to resume his seat in Council where the mayor recovered from his temporary disability, or where the vacancy in the office of mayor was filled by a special election prior to the expiration of the acting mayor’s term as councilman.2 Certainly we did not intend to brand the acting mayor as a councilman for all provisions of the Charter and hence deprive him and the City of Philadelphia of the powers of the mayoralty office during the incapacity of the mayor.

¶4*23Turning to the Charter provisions in question, sections 3-400 and 10-107(5) state the general proposition that one shall not be a candidate for public office without first resigning his present city position. The policy behind this prohibition is set forth in the official annotation as follows: “This requirement is imposed because an officer or employee who is a candidate for elective office is in a position to influence unduly and to intimidate employees under his supervision and because he may neglect his official duties in the interests of his candidacy.”3

¶5The framers of the Charter, however, made an exception to this prohibition in the situation where the office sought is the one presently held. Thus section 3-400 provides that the mayor need not resign if he is a candidate for mayor.4 Presumably, the basis of this exception was a value judgment that the benefit from encouraging continuity in office was more important to city government than the possible harm resulting from the evils envisaged in the above-mentioned annotation. Since the policy of encouraging continuity in office applies as forcefully to an acting mayor as to an elected mayor, I would hold that the framers of the Charter did not intend that an acting mayor be forced to resign in order to run for mayor.

¶6However, even if appellant is correct in his contention that Mayer v. D’Ortona compels us to regard the acting mayor as a councilman for all provisions of the Charter, I find no provision which requires a councilman to resign in order to run for public office.

¶7Appellant cites section 10-107(5) which provides: “No officer or employee of the City, except elected of*24ficers running for reelection, shall be a candidate for nomination or election to any public office unless he shall have first resigned from his then office or employment.” A review of the structure and purposes of the Charter: makes it clear that the term “officer or employee” as:used in section 10-107(5) refers to the.executive branch of city government and not to councilmen or other legislative officials, as contended by- appellant.

¶8In -the first place, it should be noted that section 10-107(5) is a penal statute since one violating.its provisions faces penalties of ninety days imprisonment, three hundred dollars fine, and ineligibility of one year for any city position.5 Accordingly, the statute must be narrowly construed. Statutory Construction Act of May 28,1937, P. L. 1019, §58, 46 P.S. §558.

¶9Secondly, an examination of the various provisions of the Charter discloses that the framers did not intend to include city' councilmen within this prohibition. Throughout the Charter, a dichotomy is drawn between “officers or employees” on the one hand, and “council-' men” on the other. For example, section 3-306 states that “all officers and employees of the City shall be citizens of the United States-.” If “officers and employees” includes councilmen, what is the need for a separate section—section 2-103—which provides that “a councilman shall be a citizen of the United States.” Section 10 itself further illustrates this dichotomy between legislative and executive officials of city government. Section 10 is entitled “Prohibited Activities of Councilmen, City Officers, Employees' and Others.” Section 10-100 enumerates certain prohibited activities for councilmen; section 10-102 sets forth comparable *25restrictions, for “city officers and employees.”6. Throughout the remainder of section 10, the term “no person” is used in contradistinction to “no officer or employee” where the intent is to include councilmen as well as executive officials.7

¶10Moreover, this Court held in Freund v. Cox, 321 Pa. 548, 183 Atl. 924 (1936), that councilmen were not included within a provision of the 1919 Charter which referred to “officer, clerk, or employee” of the city. The framers of the 1949 Charter were' well aware of this judicial interpretation of the phrase “officer or employee.”8

¶11Finally, if we look at the purposes of section 10-107(5), as set forth in the Official Annotation above, we can see why the framers of the Charter would make the traditional differentiation between the executive and legislative branches of government. Section 10-107(5) was passed to prevent elected officials from improperly utilizing the powers of their present office to gain another office. Members of the executive branch, who control large numbers of employees, present a more serious threat of such abuse than do councilmen who *26may control only one or two employees. Moreover, in enacting section 10-107(5) the Charter framers were fearful that an officer might neglect his official duties in pursuance of his candidacy. It is much more disruptive of city government where the single individual in charge of an executive department neglects his duties in order to campaign, than where one of the seventeen members of City Council so acts. Herein lies the rationale for the different treatment of the executive and legislative branches of city government by the Charter framers.

¶12In conclusion, I would hold that the policy of encouraging continity in office applies as equally to an acting mayor as a mayor, and hence neither of them must resign under section 3-400 in order to run for mayor. However, even if appellant is correct in asserting that Mayer v. D’Ortona compels us to label the acting mayor as a councilman, section 10-107 (5) does not require a councilman to resign in order to run for mayor.

¶13For these reasons, I concur only in the result.

¶22I join in the decision of the Court that this case should be decided on its merits. However, I would go further and hold that the taxpayer's complaint in equity is proper and appropriate (and that quo warranto is not the sole and exclusive remedy), rather than merely "assume that a taxpayer's bill will lie." Cf. Smith v. Gallagher, 408 Pa. 551, 185 A. 2d 135 (1962); Schrader v. Heath, 408 Pa. 79, 182 A. 2d 696 (1962); Wright v. Wagner, 405 Pa. 546, 175 A. 2d 875 (1961); Butcher v. Philadelphia, 382 Pa. 34, 114 A. 2d 120 (1955). I join also in that portion of the Court's opinion which holds that a councilman is an "officer" *27within the meaning of Section 10-107(5) of the Charter.

¶23However, I desire to note my disagreement with the view of the majority that the suit was prematurely brought and that Defendant-Intervenor Tate did not become a “candidate” until he filed his nomination petitions. When he became a “candidate” is a question of fact to be determined by the record and not by any arbitrary test which is unrelated to what long experience and observation have demonstrated. The complaint filed on January 7, 1963, alleged that “On December 17th, 1962, James H. J. Tate announced that he was seeking the office of Mayor . . . and he offered himself for said office . . . and is at the present time a candidate for the office of Mayor.” This well-pleaded averment was undenied and on the record presented was an undisputed fact in the court below, as it is here.1 It is legally sufficient and conclusive on this factual issue. The word “candidate” in the Charter must be considered to have its usual and generally accepted campaign-for-election meaning. Cf. Commonwealth ex rel. Laughlin v. Green, 351 Pa. 170, 176, 40 A. 2d 492, 494 (1945). Even if it be conceded that a “public announcement” is a prerequisite to becoming a candidate, such announcement can be accomplished in a variety of ways, depending upon the political strategy employed—by a speech, statement, advertisement, or other communication reported or appearing in public media, or by any other technique for achieving the desired political effect.

¶24In the light of the foregoing, if we attribute to his actions their usual significance, the conclusion is ines*28capable that Defendant-Intervenor Tate was a candidate by his choice and design long before the hour he filed his nomination petitions. His signed statement could have been no more articulate announcement of his candidacy. Prior to the date of his filing, not even the most casual observer of Philadelphia political life would have hesitated to describe him as an avowed and active candidate. For any judicial tribunal in the community (particularly one at the appellate level) to fail-to recognize this obvious fact is almost incredible. A man is a candidate when “his hat is in the ring’?, and the ..record here most convincingly and unquestionably establishes that Defendant-Intervenor Tate’s hat was in the ring when this proceeding was begun.

¶25Further, I disagree with that portion of the decision of-'.the Court which concludes that James IT. J. Tate may be a candidate for Mayor without first resigning his councilmanic office and that Section 10-107(5) is not applicable to his present candidacy. To reach this result "would require an interpretation which excludes an elected councilman. from the explicit provisions of Section 10t107(5) of the Charter or a finding that an elected councilman (as here), when a candidate for Mayor, is not a councilman. There is nothing in the Charter or in the record or in “the well known exigencies! in the circumstances here present” or “the facts and the', exigencies of this unusual situation” or “the public interest’?2 which requires or even suggests such a.result. ..

¶26The Charter is a practical document designed to improve and .advance the quality of local governmental operation. In seeking to attain that objective, the Charter limits the political activity of officers and employees “paid from the City Treasury.”3 Section 10-107(5) explicitly restricts the permitted candidacy of *29an elected official to re-election to the office to which he was elected—without first resigning. No greater harm could come to the Charter than a determination which fails to recognize and apply the clear language and meaning of Section 10-107(5). Not-to do so is, in reality, to rewrite the Charter and to frustrate its objective. ¡

¶27The record before us is clear. Appellee Tate was elected a councilman for a term which has not expired". He is not running for re-election as Mayor because, he has never been elected to that office. The tenure of his office as councilman was not terminated by him and still continues. As an elected councilman, he may, during the term of his office, be a candidate for re-election only to the office of councilman. He is a candidate not for that office but for (mother office, and that is distinctly prohibited by Section 10-107(5) of the Charter. This conclusion is dictated by the Charter itself and is firmly supported by the record, reason, and reality.

¶28I can find no factual or legal basis or acceptable rationalization for the result reached by the majority. I would, therefore, reverse the decree so that the provisions of the Charter may be applied.

¶32Dissenting Opinion by

¶33I want to register my dissent from the action taken by the majority of this Court because I am- convinced that (a) the conclusion reached by the majority contravenes the clear and unambiguous language, as well as the spirit, of Section 10-107(5) of the Charter of the City of Philadelphia and (b) the manner in which such conclusion is reached cannot help but undermine the confidence of the Bench, the Bar and the public in the stability of the decisions of this Court.

¶34*30In dismissing this taxpayer’s bill in equity, the court below did so on three grounds: (1) that this action was instituted prematurely; (2) that equity lacked jurisdiction to entertain this action, quo warranto being the sole and exclusive remedy; (3) that James H. Tate, as a candidate for election as Mayor of the City of Philadelphia, was not required by the terms of the City Charter to resign as a member of City Council. The majority of this Court, in effect, now holds, inter alia, that this action was prematurely instituted but that equity can entertain jurisdiction of this action: to that extent, the majority of this Court disagrees with the court below. Were this the sole basis for the majority ruling, in all likelihood, I would not file a dissenting opinion. While I entertain very serious doubt that equity, rather than quo warranto, is the appropriate remedy, I believe that the exigencies of the present situation and the interests of the public demand a speedy and immediate resolution of the instant controversy on its merits.

¶35That which impels my dissent is the action of this Court, through the medium of overruling our very recent decision in Mayer v. D’Ortona, 408 Pa. 518, 184 A. 2d 582, in now holding that James H. J. Tate is not a member of the City Council and is the Mayor of the City, whereas only six months ago this Court declared on the same posture of faets that Mr. Tate was a member of the City Council and was not the Mayor, but the Acting Mayor, of the City. By its ruling, this Court now rules that Mr. Tate, as the Mayor, is not within the proscriptive provisions of Section 10-107(5) of the City Charter.

¶36Section 10-107(5) of the Charter provides: “(5) No officer or employee of the City, except elected officers running for re-election,1 shall be a candidate for *31nomination or election, to any public office unless he shall have first resigned from his then office or employment.” (Emphasis supplied) It is beyond question that Mr. Tate was duly elected as a member of the Council of the City; that during his tenure in the office of councilman, Richardson Dilworth resigned as Mayor of the City; that an action was then instituted to determine the status of Mr. Tate in the government of the City; that, on October 10, 1962, this Court held that Mr. Tate, although the Acting Mayor of the City, retained his councilmanic office; that when Mr. Tate, then a councilman and so recognized by this Court, became a candidate for nomination to the office of Mayor, he did not first resign his councilmanic office.

¶37The basic issue is whether Mr. Tate, at the time he became a candidate for nomination to the office of Mayor, was an “officer” of the City within the intendment of Section 10-107(5), supra. In resolving this issue, the majority of this Court, excluding Mr. Justice Cohen, initially considered Mr. Tate’s two distinct contentions: (1) that, as Acting Mayor of the City, he is within the provisions of Section 3-4002 rather than Section 10-107(5), of the Charter; (2) that Section 10-107 (5) does not apply to him since, as a member of Council, he is not an “officer” of the City. After a discussion of both contentions, the majority rejected them; with such rejection I am in agreement. The majority opinion then states: “. . . under the decision in Mayor v. D’Ortona, . . . and in the light of the Charter provi*32sions . . . Tate would have to resign as Councilman in order to be a candidate for Mayor.” With that statement I am in full accord.

¶38However, the majority of this Court then proceeds to overrule Mayer v. D’Ortona, to change the status of Mr. Tate so recently enunciated by this Court and to declare that Mr. Tate is neither a member of Council nor the Acting Mayor but the Mayor of the City to whom the provisions of Section 10-107(5) are inapplicable. Only six months ago this Court, in a well considered opinion,- determined Mr. Tate’s status to be that of councilman and Acting Mayor: today, on the samé set of facts, this Court completely changes Mr. Tate’s status and declares him to be Mayor. With such juristic acrobatics I will have no part!

¶39One seeks in vain in the majority opinion for any justifiable reason to overturn Mayer v. D’Ortona. Under such circumstances how can this Court reasonably expect to enjoy or retain the confidence of the Bench, the Bar and the public in the stability of its rulings? Clearly, the end does not justify the means;

¶40An examination of the provisions of Section 10-107(5) clearly and unequivocally reveals the intent of the framers of the Charter, i.e., to prohibit an “officer” of the City from becoming a candidate for nomination or election to another public office without first resigning his then office. In my opinion, Mr. Tate clearly is a member of Council and, as such member of the Council, is an “officer” to whom the provisions of Section 10-107(5) apply and, under the provisions of that section, Mr. Tate, before becoming a candidate for nomination for the office of Mayor, was required to resign his councilmanic office. His failure to resign such office constitutes a forfeiture of that office and disqualifies him from being a candidate for the office of Mayor.