Clark v. Meade

• Decision Date: 29 March 1954
• Citation: 104 A.2d 465,377 Pa. 150
• Parties: CLARK, Mayor, et al. v. MEADE et al. McHENRY et al. v. CLARK, Mayor, et al.
• Court: Pennsylvania Supreme Court

Page 465

104 A.2d 465

377 Pa. 150

CLARK, Mayor, et al. v. MEADE et al.

McHENRY et al. v. CLARK, Mayor, et al.

Supreme Court of Pennsylvania.

March 29, 1954.

Rehearing Denied April 15, 1954.

Ernest L. Nagy, Asst. City Sol., Abraham Wernick, Deputy City Sol., Jerome J. Shestack, First Deputy City Sol., Abraham L. Freedman, City Sol., Philadelphia, for appellants.

Charles E. Kenworthey, Pittsburgh, Daniel J. McCauley, Jr., Philadelphia, for appellees Board of Revision of Taxes and Registration Commission.

Herbert S. Levin, Philadelphia, for City Commissioners.

Joseph E. Gold, Philadelphia, for Sheriff.

Grover C. Ladner, Philadelphia, for appellees.

Gilbert Stein, Philadelphia, of counse, for appellees.

Harry F. Stambaugh, Sp. Counsel, Philadelphia, Harrington Adams, Deputy Atty. Gen., Frank F. Truscott, Atty. Gen., for the Commonwealth

Robert B. Wolf, Robert T. McCracken, Philadelphia, for Greater Philadelphia Movement, amicus curiae.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

ARNOLD, Justice.

These two appeals were argued together and will be treated in one opinion, the questions involved being common to both. The controversy is whether § 5 of the Act of Aug. 26, 1953, 53 P.S. § 3422 et seq., is a valid constitutional enactment. In No. 91 January Term, 1954, the court below gave judgment for the plaintiffs against the Mayor of Philadelphia and the other defendants in a declaratory judgment proceeding.

In No. 90 January Term, 1954, the court below dismissed the complaint in mandamus brought by the Mayor of the City of Philadelphia et al. against the defendants, William F. Meade et al., constituting the Board of Revision of Taxes of the City of Philadelphia.

On April 17, 1951, the electors of the City of Philadelphia adopted the Home Rule Charter, effective January 7, 1952. ¹ On November 6, 1951, the City-County Consolidation Amendment to the Constitution of Pennsylvania was adopted by the voters in a state-wide election.

The City-County Consolidation Amendment ² provided in section 8, inter alia, that '(1) 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'; that '(3) All laws applicable to the county of Philadelphia shall apply to the city of Philadelphia'; and that '(7) Upon adoption of this amendment all county officers shall become officers of the city of Philadelphia * * *.'

The Philadelphia Home Rule Charter, section 7-100, placed all the employes of the city under civil service, and section 10-107 forbade political activity on the part of city officers and appointees.

Prior to the Act of 1953, 53 P.S. § 3422 et seq., this Court, in Lennox v. Clark, 372 Pa 355, 93 A.2d 834, decided that by virtue of the City-County Consolidation Amendment, together with the civil service provisions of the Philadelphia Home Rule Charter, the former county officers and county employes automatically became subject to the Philadelphia Home Rule Charter then in effect concerning city officers and employes. This decision embraced the Board of Revision of Taxes of Philadelphia, the Registration Commission of Philadelphia, the County Commissioners and the Recorder of Deeds. That the office of Sheriff was included therein had been established by the decision in Carrow v. City of Philadelphia, 371 Pa. 255, 89 A.2d 496.

Thereafter the legislature passed the Act of 1953, 53 P.S. § 3422 et seq., § 5 of which provides that the 'Sheriff, City Commissioners, the members of the Board of Revision of Taxes and the members of the Registration Commission shall continue to be elected or appointed, organized and compensated, and shall continue to perform all duties and shall have all powers and authority, including, but not limited to, the power and authority to hire and remove employes, as were provided by the Constitution and the acts of Assembly in effect immediately preceding the adoption of Article XIV, Section 8 of the Constitution, and the provisions now or hereafter contained in the Philadelphia Home Rule Charter relating to civil service and prohibiting political activities by officers and employes of the City of Philadelphia shall be imapplicable to the Sheriff, City Commissioners, Board of Revision of Taxes and members thereof and the Registration Commission and members thereof, and the subordinates and employes of such officers, board and commission.' (Italics supplied.)

The specific question involved in this case is whether § 5 of the Act of 1953 constitutes a valid and constitutional enactment. On this question the appellants claim the sanction of section 8, subsection (2), of the City-County Consolidation Amendment reading: 'Local and special laws, regulating the affairs of the city of Philadelphia and creating offices or prescribing the powers and duties of officers of the city of Philadelphia, shall be valid notwithstanding the provisions of section seven of article three of this Constitution.' That article and section forbid the general assembly to pass any local or special law concerning 28 subjects, including (1) 'Regulating the affairs of * * * cities'; ³ and (2) 'Creating offices, or prescribing the powers and duties of officers in * * * cities'. ⁴ These two are written into section 8, subsection (2), of the City-County Consolidation Amendment, and this in the language of Article III, section 7, of the Constitution. The other prohibitions of Article III, section 7, are deliberately omitted, which confirms the conclusion that clause (2) of the City-County Consolidation Amendment did not intend to alter, in any way the remaining restraints of Article III, section 7. Expressio unius est exclusio alterius. See Commonwealth v. Moir, 199 Pa. 534, 537, 49 A. 351, 53 L.R.A. 837; Commonwealth ex rel. Maurer v. Witkin, 344 Pa. 191, 25 A.2d 317.

Among the remaining clauses of Article III, section 7, of the Constitution, which, as we have said, are unaffected by section 8, subsection (2), of the City-County Consolidation Amendment, are the following: 'Incorporating cities * * * or changing their charters', ⁵ and 'Granting to any * * * individual any special or exclusive privilege or immunity * * *.' ⁶ Section 5 of the Act of 1953 clearly offends both of these clauses.

That § 5 of the Act of 1953 is a local law is obvious, because it relates in terms to the city of Philadelphia only. Indeed, it could not relate to any other city of the first class, if any, unless its charter provided for all these same offices (enumerated in § 5 of the Act of 1953). That the Act is also a special act cannot be denied, for it clearly grants special privileges and immunities. Of all the city and county offices of the City of Philadelphia, only four were selected to be taken out of the City-County Consolidation Amendment, and only these four were exempted from the provisions of the Charter itself. Section 5 of that Act joins elected officers, such as the Sheriff and County Commissioners, with appointive officers, such as the Board of Revision of Taxes and members of the Registration Commission. In addition, there is no rational, substantial ground for the classification attempted to be made. The offices classified in the Act have no characteristics distinguishing them from other county offices. The classification is therefore arbitrary. If the civil service and merit system is appropriate for the selection and retention of clerks and stenographers in city offices, what rational basis can there be for a legislative determination that employes performing precisely the same type of work, under the same pay and classification plan, are to be excluded from the merit system in the offices designated? And it is impossible to discover any reason for the pronouncement that a stenographer in the office of the District Attorney may be dismissed only for cause, but a stenographer of the same grade, receiving the same compensation, in the office of the Sheriff or the Board of Revision of Taxes may be dismissed arbitrarily.

Again referring to the City-County Consolidation Amendment, section 8, subsection (2), the exemption concerning local and special laws means that such laws regulating the affairs of the city of Philadelphia are permitted if such laws do not impinge upon the other interdicted clauses of Article III, section 7, of the Constitution, pertaining to 'Incorporating cities * * * or changing their charters', and 'granting to any * * * individual any special or exclusive privilege or immunity'. In this case a special law regulating the affairs of the City of Philadelphia is valid providing it does not change the charter of the City of Philadelphia, or does not grant 'to any * * * individual any special or exclusive privilege or immunity'. This applies also to that clause relative to 'Creating offices, or prescribing the powers and duties of officers in * * * cities'.

The Act of 1953 clearly grants to individuals, in violation of the Article, a special or exclusive privilege or immunity. As we have said, by the terms of the Philadelphia Home Rule Charter, section 7-100, all the employes of the City were placed under civil service and merit rating, and under section 10-107 political activity on the part of city officers and appointees was forbidden. Under the Lennox and Carrow cases, the Sheriff, the Board of Revision of Taxes, the Registration Commission, the County Commissioners and the Recorder of Deeds automatically became subject to the Philadelphia Home Rule Charter regulating city officers and employes. By the terms of § 5 of the Act of 1953, the civil service requirements and the prohibition against political activity by the Sheriff, City Commissioners, members of the Board of Revision of Taxes and the Registration Commission, and the employes of those offices, are declared to be inapplicable. Therefore an immunity is...