Harrington v. Carroll

• Decision Date: 14 March 1968
• Citation: 428 Pa. 510,239 A.2d 437
• Parties: Clark J. HARRINGTON, Appellant, and Republican City Committee v. Vincent A. CARROLL et al.
• Court: Pennsylvania Supreme Court

Page 437

239 A.2d 437

428 Pa. 510

Clark J. HARRINGTON, Appellant, and Republican City Committee v. Vincent A. CARROLL et al.

Supreme Court of Pennsylvania.

March 14, 1968.

[428 Pa. 511] Edward R. Becker, Philadelphia, for appellant.

David Berger, Philadelphia, for appellee, John B. Kelly, Jr.

Edward G. Bauer, Jr., City Sol., Levy Anderson, 1st Deputy City Sol., Matthew W. Bullock, Jr., 2nd Deputy City Sol., Philadelphia, for appellees other than John B. Kelly, Jr.

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

OPINION OF THE COURT

MUSMANNO, Justice.

Section 2--103 of the Philadelphia Home Rule Charter states:

'QUALIFICATIONS OF COUNCILMEN.

A councilman shall be a citizen of the United States, shall have been a resident of the City for at least one year prior to his election, and shall be at least twenty-five years of age when elected to office. District councilmen shall be, and during their terms of office shall remain, residents of the district from which they were elected. The Council shall be the sole judge of the qualifications of its members.'

It is one of the striking phenomena of the legal world how there could be controversy over so simple a declaration. But the appellants in this case do question and do controvert the quoted utterance. They The Philadelphia Home Rule Charter is the law of Philadelphia; it is the Magna Carta of this illustrious city. It was adopted by the people in a solemn referendum, after the procedure had been authorized and mandated by the General Assembly of Pennsylvania under the aegis of the Constitution of the Commonwealth. So far as the government of Philadelphia is concerned, the Philadelphia Charter is inflexible law. Justice Charles Alvin Jones, later Chief Justice, declared in the Addison Case, 385 Pa. 48, 122 A.2d 272, that the Philadelphia Home Rule Charter

argue that it does not mean what it says, but even only an one-eyed glance at the paragraph should reveal that the proposition therein contained is expressed in language as limpid as a mountain stream, as apparent as a mountain by the sea, and as easily read as if it were spelled out in children's kindergarten blocks.

'emanated from the relevant provision of the State Constitution, implemented for appropriate execution by the enabling Act of 1949, and was duly adopted (i.e., enacted) by the affirmative vote of the electors of the City as the organic law of the corporate municipal body. That the Charter constituted legislation no less than does a statute of the legislature to like end is too plain for even cavil. whether a municipal charter comes into being by direct statutory grant of the legislature or by adoption by the constituent electorate in the exercise of power constitutionally reposed, it is as much legislative in the one instance as in the other and has equal legal force and standing in both. Indeed, a constitutionally permissible adoption of a municipal charter by the electorate is not one whit less in dignity than a statute of the legislature granting a charter. Where it is adopted by a constitutionally empowered electorate, it affords an example of pure democracy--the sovereign people legislating directly and not by representatives in respect of the organization and administration of their local government. * * * Wherefore, upon it due adoption, Philadelphia's Home Rule Charter took on the force and status of a legislative enactment.'

In Lurie v. Republican Alliance, 412 Pa. 61, 63, 192 A.2d 367, 369, this Court said: 'Where a remedy is provided by an act of assembly, the directions of the legislation must be strictly pursued and such remedy is exclusive,' citing authorities.

John B. Kelly was a candidate for the office of Councilman-at-large of City Council of Philadelphia in the primary and general elections of 1967. He was nominated in accordance with election law, and, in November, 1967, was elected with 356,694 votes, the second highest number of votes cast for any candidate for the office of Councilman-at-large. The Return Board of Philadelphia County, after a computation, whose mathematical accuracy no one questions, was prepared to certify Kelly's election, when the plaintiffs in this case, Clark J. Harrington, as a taxpayer and elector of Philadelphia on behalf of all other taxpayers and electors of the City (by virtue of an amendment to his Complaint), and by the Republican City Committee on behalf of its unsuccessful candidate, George Woods, filed a Complaint in Equity in the Court of Common Pleas of Philadelphia County, against the six Judges of the Court of Common Pleas of Philadelphia who acted as an Election Return Board, certain fiscal officers of the City, the other sixteen Councilmen-elect, and John B. Kelly, Jr., requesting that the Return Board be enjoined from certifying Kelly's election, that no funds be paid him in connection with the assumption of office by him, that the other councilmen-elect be enjoined from seating Kelly, and that Kelly be enjoined from taking office as a councilman.

The plaintiffs further prayed that the Court by mandatory injunction order the Return Board to certify the election of George Woods on the averment he received the highest number of votes of the unsuccessful The defendants filed preliminary objections to the Complaint. The objections were sustained by the Court below and this appeal followed.

candidates for councilman-at-large, or, that in the alternative, the Court direct the incoming President of City Council to call a special election to fill the vacancy if Kelly is declared ineligible for office.

It is the contention of the plaintiffs that John B. Kelly did not live in Philadelphia when elected, but, on the contrary, resided in Wynnewood, in Montgomery County. If this be true, he may not, under the Charter, be seated as a Councilman-at-large. But who determines whether he is qualified? The Council itself. This is spelled out in the Charter and in the very section which prescribes and defines the qualifications. But, the appellants argue, the Council does not have exclusive jurisdiction over qualifications, and advance the case of Commonwealth v. Allen, 70 Pa. 465, in support of their position. But it would take heavily-pressed shoehorn to fit the Allen case into the shoe of this case, and, at best, only a limping conclusion could be achieved.

In the Allen case, two councilmen of Philadelphia were allegedly disqualified from holding office because they were sureties for the City Treasurer, in violation of an Act of Assembly. This Court held that, because of this infraction of law, the men had to forfeit their office. The defendants in that case argued that the Courts had no jurisdiction over the qualifications of city councilmen because they, like assemblymen, could only be denied office on a vote of their fellow-legislators, that is, their fellow-councilmen. This Court faced that argument and replied that here it was not a question of qualification for office but of forfeiture:

'* * * It is said that councils have power in like manner as each branch of the legislature to judge and determine the qualification of their members. Granting that, it does not follow that the authority of the court is taken away to inquire into a forfeiture, which does not take place until the member has been admitted to his seat. * * * The error is in confounding disqualification with forfeiture, so far as to suppose they are equivalent expressions. The fact that a man is a surety for a corporation officer is a cause of disqualification to take the seat, but when the seat is taken it becomes a cause of forfeiture.' (Emphasis supplied.)

The appellants' brief, praiseworthy in its historical references, takes the reader back to the days of the Tudors and Stuarts, monarchs of England, who usurped power to determine the qualifications of members of Parliament. The people of England wrested from those despots that authority and placed it in the hands of the House of Commons. The appellants then show how the original American colonies wrote into their respective constitutions the fundamental prerogative, as well as duty, of the legislators to pass on the qualifications of its members and how this elementary proposition of trustworthy government is now written into the Constitution of the United States and, of course, the present Constitution of Pennsylvania. Then, in an astonishing non sequitur, the appellants say that the city legislature, that is, the City Council of Philadelphia, does not have the sole power to pass on qualifications of its members. This argument defies practically every jurisprudential pronouncement on the subject. The principle is succinctly stated in 18 Am.Jur., Sec. 288:

'A constitutional provision that each house of the legislature shall be the judge of the election and qualifications of its own members is an exclusive grant of power and constitutes each house the sole and ultimate tribunal to pass upon the qualifications of its own members, which power cannot be granted away of transferred to any other tribunal or officer.'

After citing Commonwealth v. Allen, (decided before the 1874 Constitution), the appellants refer to some other old cases. A precedent hoary with age is not for that reason unauthoritative, especially when the principle therein asserted has been reaffirmed over the passing years. But when the old oaken bucket is replaced by a modern drinking fountain which responds to a pedal push, and quenches the thirst of the drinker instantly and wholesomely, one does not insist on creaking a crank to bring to the surface the moss-covered bucket of yore.

The cases which were decided prior to the case of Auchenbach v. Seibert, 120 Pa. 159, 13 A. 558 cannot prevail over that decision which was based on a set of facts almost identical to those present in the case at bar. Daniel Auchenbach stood for election to the Select Council in the Second Ward of Reading, received the largest number...