Com. ex rel. Specter v. Martin

• Decision Date: 03 July 1967
• Parties: COMMONWEALTH of Pennsylvania ex rel. Arlen SPECTER, District Attorney of Philadelphia, v. Edward J. MARTIN, Finance Director of the City of Philadelphia, Appellant.
• Court: Pennsylvania Supreme Court

Page 729

232 A.2d 729

426 Pa. 102

COMMONWEALTH of Pennsylvania ex rel. Arlen SPECTER, District Attorney of Philadelphia, v. Edward J. MARTIN, Finance Director of the City of Philadelphia, Appellant.

Supreme Court of Pennsylvania July 3, 1967.

Edward G. Bauer, Jr., City Sol., Levy Anderson, First Deputy City Sol., Matthew W. Bullock, Jr., Second Deputy City Sol., Frank J. Pfizenmayer and Jerome R. Richter, Asst. City Sols., Philadelphia, for appellant

Arlen Specter, Dist. Atty., Philadelphia, for appellee.

Austin M. Lee, Peter Hearn, Philadelphia, for Citizens' Charter Committee, amici curiae.

Before BELL, C.J., and MUSMANNO, JONES, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION

JONES, Justice.

The basic issue which this appeal presents, important in its consequence, is narrow in its scope: do the provisions of Article X, § 10--107(5) ¹ of the Philadelphia Home Rule Charter ² require that the District Attorney of Philadelphia, by reason of his candidacy for election as Mayor, resign?

A brief recital of the factual background of this appeal is essential. Arlen Specter was elected District Attorney of Philadelphia for a four year term, beginning the first Monday of January, 1966 and ending the first Monday of January, 1970. ³ While the incumbent District Attorney and performing the duties and functions of that office, Specter, on March 7, 1967, became a candidate for the office of Mayor in an election to be held on November 7, 1967. Specter did not and has not resigned from the office of District Attorney.

On March 11, 1967, the City Solicitor of Philadelphia wrote a letter to Edward J. Martin, Finance Director of the City, advising Martin that, when Specter became a candidate for Mayor, he was required under Article X, § 10--107(5), of the Charter to resign as District Attorney and that '(Specter) remains in office illegally and (Martin) should not process any pay to (Specter) for any period subsequent to March 7, 1967.' Martin complied with this directive of the City Solicitor.

On March 23, 1967, Specter instituted an action in mandamus against Martin in the Briefly stated, Martin contends: (1) a district attorney under Article XIV, § 1, of the Constitution of Pennsylvania was classified as a 'county officer'; (2) under Article XIV § 8(1) of the Constitution all 'county offices' in Philadelphia were abolished and, under Article XIV, § 8(7), all 'county officers' became 'officers of the city of Philadelphia'; (3) the District Attorney is now an 'officer of the City' and, as such, is subject to all the provisions of the Charter, and, therefore, as a candidate for another public office, Specter cannot continue to occupy the office and perform the duties of District Attorney since he was required to resign under Article X, § 10--107(5) of the Charter.

Court of Common Pleas No. 3 of Philadelphia County. Martin filed an answer to Specter's mandamus complaint and a motion for judgment on the pleadings. ⁴ After legal argument, Judge Charles A. Waters held that Specter was entitled to exercise the duties of District Attorney, directed Martin to pay Specter forthwith his salary and denied Martin's motion for judgment on the pleadings. From that judgment Martin has appealed.

At the outset of our determination of this appeal we must decide the propriety of a mandamus action to determine this issue. ⁵ Mandamus lies to compel the performance of a ministerial as opposed to a discretionary duty. 'The primary requisites of the action are that the plaintiff has a legal right to enforce which is specific, well defined and complete; that a corresponding positive duty rests upon the defendant; and that no other adequate, specific or appropriate remedy exists.' Francis v. Corleto et al., 204 Pa.Super. 280, 283, 203 A.2d 520, 522 (1964); Garratt v. Philadelphia, 387 Pa. 442, 448, 127 A.2d 738 (1956).

This action in mandamus is by Specter who claims that, by reason of his office as the duly elected District Attorney, he is entitled to receive the salary and compensation attached to such office. ⁶ The action is against Martin who, as Finance Director of Philadelphia, has the duty and authority to approve the payment of money out of the City Treasury. (Charter, Article VI, §§ 6--100, 6--106.) The defense interposed is that, by reason of his violation of Article X, § 10--107(5), Specter has forefeited his right to the office (Article X, § 10--109) and the right to the compensation attached to said office.

While the right to retain the office of District Attorney underlies this litigation, quo warranto, normally the action to try title to public office, ⁷ would be unavailable under the peculiar factual circumstances presently involved. Quo warranto can be instituted to determine the title to public office only by the Attorney General, the District Attorney or a private individual who has a special interest as distinguished from the interest of the public generally. Mayer v. Hemphill, 411 Pa. 1, 6, 190 A.2d 444 (1963) and cases therein cited. Obviously, no individual has a special, as distinguished from the public, interest in this controversy. The Attorney General, in writing, prior to any litigation, had given an opinion to Specter regarding his status and thus had committed himself and Specter, as District Attorney, would literally have had to sue himself. Under such unusual and extraordinary circumstances, quo warranto could The employment of mandamus as a remedy in this type of situation has received sanction. When we examine the position of Martin the availability of mandamus becomes evident. Martin is under a duty to approve the payment of compensation to the district attorney, such duty being a ministerial duty. However, under the legal advice given Martin upon which he acted, Martin takes the position he does not have to perform his ministerial duty because, under a legal interpretation of the Charter, Specter has forfeited his right to the office. In Meadville Area School District v. Dept. of Public Instruction, 398 Pa. 496, 501, 159 A.2d 482, 485 (1960), this Court recently said: 'When public officials act in an improper manner because of an erroneous interpretation of the law under which they are functioning * * * mandamus will issue.' See also: Garratt v. Philadelphia, 387 Pa. 442, 448, 127 A.2d 738 (1956). In Cain Admrx. v. Stucker et al., 159 Pa.Super. 466, 48 A.2d 162 (1946), it was held that, where in an action to recover unpaid salary, plaintiff was obliged to establish that a decedent held title to his position as a policemen until his death, mandamus was the appropriate action (pp. 469, 470, 48 A.2d 162). See also: Alberts v. Garofalo, 393 Pa. 212, 214, 142 A.2d 280 (1958); Commonwealth ex rel. Shoemaker v. Thomas, et al., 328 Pa. 19, 23, 24, 195 A. 103 (1937); Commonwealth ex rel., Appellants, v. Woodward, 95 Pa.Super. 423 (1928); Francis v. Corleto, 204 Pa.Super. 280, 283, 287--288, 203 A.2d 520 (1964).

not be resorted to in order to determine this matter. Moreover, in Mayer v. Hemphill, supra, p. 8, 190 A.2d 444, the majority of this Court refused to pass upon the propriety of an action in equity to determine the existence of a violation of Article X, § 10--107(5) of the Charter although, because of what it termed 'extraordinary circumstances', it did determine the merits of the litigation.

Under the unusual circumstances herein existing, we conclude that mandamus furnishes an appropriate medium for the solution of the instant controversy.

Article XIV, § 1, of our Constitution designates Eo nominee as 'county officers' twelve officers; within such designation district attorneys are included. By reason of such designation, a district attorney became a 'constitutional officer', i.e., the incumbent of an office expressly recognized in the Constitution. McGinley v. Scott, 401 Pa. 310, 323, 164 A.2d 424 (1960); Dauphin County Grand Jury Investigation Proceedings (No. 3), 332 Pa. 358, 362, 363, 2 A.2d 809 (1938).

Such constitutional classification of these twelve officers as 'county officers' accorded recognition of their status as 'public officers' and to the geographical areas within which they were to be elected and to perform their official functions and duties. ⁸

In 1951, Article XIV of the Constitution was amended by the addition thereto of Section 8(1). The aim and purpose of that amendment was the integration and consolidation in Philadelphia--where the city and county geographical areas are identical--of county and city offices. By virtue of that amendment, the first portion of which was self executing, 'all county officers' became 'city officers'. That constituted what former Chief Justice Stern, in Lennox v. Clark, 372 Pa. 355, 370, 93 A.2d 834, 841 (1953), aptly termed the first phase of the 'inter city-county consolidation.' By reason of such amendment, 'the county offices (became) a part of the municipal government and * * * all their officers and employees (became) city officers and employees and as such bound by the provisions of the Charter concerning such officers and employees.' Lennox, supra, p. 370, 93 A.2d p. 841. However, by reason of a later provision contained in Section 8(1), the 'activities or Functions (of the county officers were) not changed; they In Lennox, supra, our Court was called upon to determine the Post consolidation status of the Prothonotary of the Courts of Common Pleas and the Register of Wills of Philadelphia, both of whom were designated as 'county officers' under Article XIV, § 1 of the Constitution. As to the Prothonotary, in view of the fact that Article V, § 7 of the Constitution specifically provided for the office of Prothonotary in Philadelphia, his manner of appointment and his authority to appoint assistants, such constitutional status led our Court to conclude that the Prothonotary, even though constitutionally designated as a 'county officer', did not fall within the City-County Consolidation Amendment and was not converted thereby into a...