Com. ex rel. Fox v. Swing
| Decision Date | 28 November 1962 |
| Citation | 186 A.2d 24,409 Pa. 241 |
| Parties | COMMONWEALTH of Pennsylvania ex rel. Jacques H. FOX, District Attorney, v. Albert H. SWING, Appellant. |
| Court | Pennsylvania Supreme Court |
Robert E. Porter, Greenwell, Porter, Smaltz & Royal Wayne, David F. Maxwell, Obermayer, Rebmann, Maxwell & Hippel, Philadelphia, for appellant.
Read Rocap, Jr., Media, Albert Blumberg, Chester, for appellee.
Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN, and O'BRIEN, JJ.
Appellant, Albert H. Swing, in 1957, was elected to a four-year term as treasurer of Radnor Township, a first class township located in Delaware County. He assumed the duties of said office in January, 1958, and holds this position at the present time having been re-elected to a second four-year term in 1961. In 1959, appellant was elected a county commissioner of Delaware County, a third class county, for a term of four years. He assumed the duties of that office in January 1960.
Relator, Jacques H. Fox, District Attorney of Delaware County, filed a complaint in quo warranto against appellant in 1961, alleging that the offices of township treasurer and county commissioner which are held by appellant have functions, duties and responsibilities that are incompatible and that for this reason the positions are held illegally by appellant.
Appellant filed preliminary objections to the jurisdiction of the court below, contending that under Article XII, § 2, of the Pennsylvania Constitution of 1874, P.S. the power to determine whether or not two public offices are incompatible is vested exclusively in the legislature, and that the question of incompatibility connot be decided by the courts. After argument, the preliminary objections were dismissed and appellant was given twenty days within which to file an answer. This appeal was taken.
Before deciding the merits of the legal question presented, we must dispose of appellee's motion to quash or dismiss the appeal. Appellee contends that the order of the court below overruling appellant's preliminary objections challenging the court's jurisdiction over the subject matter is interlocutory and not appealable. Suffice it to say that the Act of March 5, 1925, P.L. 23, 12 P.S. § 672, was designed to permit an appeal in the present situation. As we stated in Strank v. Mercy Hospital of Johnstown, 383 Pa. 54, 57, 117 A.2d 679, 698 (1955), Neither Guzek v. Empire Wholesale Company, 396 Pa. 78, 151 A.2d 470 (1959), nor Fairchild Engine & Airplane Corporation v. Bellanca Corporation, 391 Pa. 177, 137 A.2d 248 (1958) is applicable here.
Turning now to the main point at issue, the Constitution of Pennsylvania, Article XII, § 2, provides:
By virtue of this constitutional provision, the legislature of Pennsylvania has seen fit to declare many offices (other than federal and state offices mentioned in the first sentence of the constitutional enactment) incompatible. This is not so in reference to the offices here involved. They are not declared to be incompatible in any statute. Regardless, the lower court ruled that a court of common pleas has inherent authority to declare offices incompatible by the application of common law principles. It said:
This conclusion is not legally correct. If the courts enjoyed such inherent power at common law, it was completely abrogated by Article XII, § 2 of the Pennsylvania Constitution. In fact, this Court has previously so ruled.
In Commonwealth ex rel. Schermer v. Franek, 311 Pa. 341, at 347, 166 A. 878 at 880 (1933), we said: [1] This language is clear and unambiguous. See also, Duffy v. Cooke, 239 Pa. 427, 86 A. 1076 (1913).
It is argued that the above quoted statement of Justice Kephart speaking for a unanimous court was not decisional and is mere dicta. We cannot agree. A study of the record in that case discloses that the issue of the incompatibility of the offices involved therein and the court's power to determine that question in the absence of pertinent legislative expression was squarely raised and at issue in the proceedings both in the lower court and in this Court. On appeal, this Court adjudicated that issue even though it quashed the appeal on other grounds. It was plainly an intricate embodiment of the court's determination. This is not 'dicta'! Where a decision rests on two or more grounds equally valid, none may be relegated to the inferior status of obiter dictum; Manley v. Manley, 193 Pa.Super. 252, 164 A.2d 113 (1960). Moreover, in the ensuing twenty-nine years, the ruling in this respect has been consistently followed and recognized as the law of Pennsylvania by the lower courts of the Commonwealth. See, Commonwealth ex rel. Storb v. Ressler, 13 Pa.Dist. & Co.R.2d 175 (1957); Gregory v. Johnson, 88 Pa.Dist. & Co.R. 250 (1954); Commonwealth ex rel. Orban v. Berkey, 75 Pa.Dist. & Co.R. 353 (1950); and, Kurtz v. Steinhart, 60 Pa.Dist. & Co.R. 345 (1947).
It is argued that the word 'may' in the constitutional provision, supra, was used only in a permissive sense and this, in itself, indicates that the legislature does not possess the exclusive authority to determine what offices are incompatible. As stated before, in Commonwealth ex rel. Schermer v. Franek, supra, it was decided to the contrary. Further, similar language ('may be removed') in another section of the Constitution has been interpreted as meaning 'exclusively.' See, Commonwealth ex rel. Kelley v. McBride, 329 Pa. 41, 196 A. 80 (1938). Also, while the word 'may' is generally interpreted to be used in a permissive sense, it does have the same connotation as the word 'shall' in certain contexts and under certain circumstances. See, Commonwealth v. Garland, 393 Pa. 45, 142 A.2d 14 (1958).
It is also argued that this Court has entertained jurisdiction in other instances wherein the incompatibility of public offices was involved. While this is true, the cases cited are inapposite. In not a single instance was the matter of common law incompatibility in issue. In some instances, the cases involved the constitutional prohibition contained in the first sentence of Article XII, Section 2 of the Constitution. In others, the facts involved misconduct in office by a public official. These cases are not controlling here.
Finally, we may agree that the two positions involved should not be held by the same individual and factually is against public policy. However, while this Court has the power under certain well defined circumstances to determine what is against public policy, this does not hold true in this instance because of the constitutional enactment. Osborn v. President, Directors and Campany of Bank of United States, U. S. Bank, (Chief Justice Marshall), 9 Wheaton 738, 866, 6 L.Ed. 204. The situation complained of may only be cured by the legislature. It is not for us to legislate or by interpretation to add to legislation matters which the legislature saw fit not to include. See, Altieri v. Allentown Officers' and Employees' Retirement Board, 368 Pa. 176, 81 A.2d 884 (1951).
Order reversed. The action is dismissed.
These two offices are, in my judgment, undoubtedly incompatible and there are many similar situations which exist throughout Pennsylvania. The Courts can take jurisdiction, if at all [1] only on the ground that a matter of public policy is involved. The law is thus expressed in Commonwealth ex rel. McCreary v. Major, 343 Pa. 355, page 360, 22...
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