Commonwealth v. Oellers

• Decision Date: 12 June 1891
• Docket Number: 86
• Citation: 21 A. 1085,140 Pa. 457
• Parties: COMMONWEALTH v. R. G. OELLERS
• Court: Pennsylvania Supreme Court

21 A. 1085

140 Pa. 457

COMMONWEALTH v. R. G. OELLERS

No. 86

Supreme Court of Pennsylvania

June 12, 1891 ^[*]

Argued June 4, 1891

Editorial Note:

This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.

APPEAL BY THE COMMONWEALTH FROM THE COURT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY.

No. 86 July Term 1891, Sup. Ct.; court below, No. 338 June Term 1891, C.P. No. 4.

On June 2, 1891, upon the relation of Mr. William U. Hensel, Attorney General, a writ of quo warranto was issued from the court below, returnable forthwith, commanding the sheriff to summon Richard G. Oellers, to show by what warrant he claimed to hold and exercise the office of county treasurer, designated as city treasurer within the city and county of Philadelphia.

The information filed averred, in substance, that by the legal effect of §§ 1, 2, article XIV. of the constitution; act of February 2, 1854, P.L. 21; and § 17, act of March 31, 1876, P.L. 13, the officer, known in the city of Philadelphia as the city treasurer, was a county officer to whose office were attached the qualifications and attributes to be found in article XIV. of the constitution that at the general elections held in November in the years 1876, 1879, 1882, and 1885, respectively, certain persons named were elected by the qualified voters of Philadelphia county to fill the office of county treasurer, designated by them as city treasurer; that in November, 1888, John Bardsley was elected by said voters to fill said office from January 1, 1889, to January 1, 1892, and he entered upon and assumed the duties of said office, but the same had become vacant in consequence of his resignation; that, in discharge of the duty of filling such vacancies, imposed upon him by the constitution and laws of this commonwealth, the governor had appointed William Redwood Wright to fill such office, but Richard G. Oellers had unlawfully intruded into and usurped the same, and was exercising the duties thereof without right, contrary to law.

On the same day, June 2, 1891, the defendant appeared and filed a plea averring that, by virtue of the laws of this commonwealth, the right to fill a vacancy in the office designated as that of city treasurer within the city and county of Philadelphia, was vested, not in the governor, but in a joint meeting of the select and common councils of the city of Philadelphia; and that on May 28, 1891, the defendant was elected by a viva-voce vote, at such a joint meeting, to fill a vacancy existing in said office, and he had duly entered security and taken the oath of office, etc.

Thereupon the commonwealth filed a general demurrer to the plea of the defendant, and the following agreement, signed by the respective counsel of the commonwealth and the defendant, was put on file:

"It is hereby agreed between the relator and the defendant in the above case that, on the argument, the sole questions of record to be disposed of by the court are:

"1. Has the governor of the commonwealth the right to fill the vacancy existing from the cause stated in the suggestion, in the office designated city treasurer within the city and county of Philadelphia?

"2. Have the councils of the city of Philadelphia the right to fill the vacancy existing from the cause stated in the suggestion, in the office designated city treasurer within the city and county of Philadelphia?"

The court, on the same day, without opinion filed, overruled the demurrer, and entered judgment for the defendant; whereupon the commonwealth took this appeal, specifying that the court erred:

1. In sustaining the demurrer.

2. In entering judgment for the defendant.

3. In not entering judgment for the commonwealth.

The judgment is reversed and judgment is now entered for the commonwealth upon the demurrer. It is further considered and adjudged by the court that the defendant, Richard G. Oellers be, and he hereby is ousted from the office of county treasurer, designated as city treasurer, of Philadelphia, and from the fees and emoluments thereof.

Mr. William U. Hensel, Attorney General, and Mr. Furman Sheppard (with them Mr. S. S. Hollingsworth), for the commonwealth:

1. At the time the consolidation act of February 2, 1854, P.L. 21, went into effect, there was a county treasurer for the county of Philadelphia, who was elected at the general election in October, every second year, and vacancies occurring in his office were filled by the appointment of the county commissioners: act of May 27, 1841, P.L. 400; and there was a city treasurer elected every year by the select and common councils of the city: acts of March 11, 1789, 2 Sm. L. 462; January 7, 1802, 3 Sm. L. 477. By § 6 of the consolidation act of 1854, the office of county treasurer was terminated, and thereafter, down to 1876, there was no county treasurer in Philadelphia county. By § 10 of the same act, it was provided that a city treasurer should be elected by the qualified voters on the first Tuesday in May of every second year, and vacancies in the office of city treasurer should be filled by the councils. By act of March 21, 1861, P.L. 165, the time of this election was changed to the date of the general election in October of each year, and by act of August 12, 1873, P.L. (1874) 432, the term of the city treasurer was lengthened to three years.

2. Such was the legislation prior to the adoption of the present constitution. By article XIV. of that instrument, the constitutional office of county treasurer was created; and since the constitution went into effect, wherever a county exists or is created the county offices named in article XIV., among which is that of county treasurer, spring at once into existence: Walsh v. Commonwealth, 89 Pa. 419. The officer known in Philadelphia as city treasurer, is the constitutional county treasurer. He is elected at the time prescribed for the election of county officers by § 2, article VIII. of the constitution. There has never been any person voted for as city treasurer at the time prescribed by § 3 of the same article for the holding of municipal elections. The officer elected at the general elections has discharged all the duties and exercised all the powers imposed upon county treasurers by the constitution and laws of the state. It is extremely difficult, therefore, to escape the conclusion that he is such constitutional officer; but, if there is any doubt as to this, looking merely at the provisions of the constitution and the election held under it, such doubt is resolved on reference to § 17, act of March 31, 1876, P.L. 13, and this point seems to be settled by Taggart v. Commonwealth, 102 Pa. 354.

3. The law for the filling of vacancies is found in § 1, act of May 15, 1874, P.L. 205, which provides that the governor shall appoint "where provision is not already made by said constitution and laws to fill said vacancies." The only law referred to by the defendant as making any other provision, is the consolidation act of 1854, which directs, in § 10, that vacancies in the office of city treasurer shall be filled by councils. This is not a provision of law for filling a vacancy in the new office of county treasurer, existing under the constitution, though the incumbent is designated in Philadelphia as "city treasurer;" it cannot apply to such vacancy if the decision in Taggart v. Commonwealth, supra, is to stand, and it should not be extended thereto unless the legislative intent is clear beyond any doubt. Nor does the provision in § 5, act of May 27, 1841, P.L. 400, for the filling of vacancies in the office of county treasurer by the county commissioners, apply, as that act was dealing with the legislative office of county treasurer afterwards abolished by the consolidation act. If the act of 1841 does apply, the decisions in Taggart v. Commonwealth, 102 Pa. 354, and Commonwealth v. Gaige, 94 Pa. 193, were wrong. As to the weight of the consideration that, according to our position, the people themselves will sooner have an opportunity of filling the office than they would under § 46, act of February 2, 1854, as construed by act of April 18, 1867, P.L. 1299, see Commonwealth v. Evans, 102 Pa. 394.

Mr. Mayer Sulzberger and Mr. John G. Johnson (with them Mr. Ovid F. Johnson), for the appellee Oellers, and Mr. Charles F. Warwick, City Solicitor, for the city of Philadelphia:

1. Councils are expressly authorized to fill the vacancy in the office of city treasurer by § 10, act of February 2 1854, P.L. 21, known as the consolidation act. Their power does not rest, as was the case with reference to the office of controller, considered in Taggart v. Commonwealth, 102 Pa. 354, upon § 46 of that act, providing that councils shall fill vacancies in any elective office of the city "except where other provision is made for filling the vacancy," but upon language specifically conferring the authority with reference to this particular office. No change has ever been made, since the passage of the act of 1854, in the office of city treasurer or in the functions of that officer, and nothing appears in § 1, article XIV. of the constitution, relative to county officers, indicating an intention to work any change in the office of city treasurer. The object of the act of March 31, 1876, P.L. 13, as clearly disclosed in its title, was simply to enforce the directions of the constitution with reference to official compensation and fees; and it was in the line of the legislative power and in pursuance of good policy, to subject the city treasurer of Philadelphia to the provisions of the act. But no intention to change the term of that office, or to provide for the manner of his election, is disclosed either by the title or by the body of the...