warning that, as a constitutional matter, the “District Attorney [has] the whole prosecution machinery at his command” and that “the unlimited prosecuting powers [are] lodged in the office of District Attorney” (emphasis added)
How later courts described this case
- warning that, as a constitutional matter, the “District Attorney [has] the whole prosecution machinery at his command” and that “the unlimited prosecuting powers [are] lodged in the office of District Attorney” (emphasis added)
- mandamus action was appropriate since the Attorney General approved the district attorney’s candidacy for mayor and it was inconceivable that the district attorney would institute action against himself in quo warranto
- since the attorney general approved the district attorney's candidacy for mayor and it was inconceivable that district attorney would institute suit against himself in quo warranto, mandamus action was appropriate
- district attorneys do not perform their duties on behalf of either a county or a city, but rather, “all of the duties of the district attorney are performed on behalf of the Commonwealth.”
Written by the judges who cited it.
The opinion
Concurring and Dissenting Opinion by
Mr. Justice Eagen:
The prime issue before the court below in this action of mandamus was whether or not Arlen Specter, the District Attorney of Philadelphia, was and is entitled to receive the salary of that office as fixed by the legislature of the Commonwealth. Of course, it is the de jure holder of that office who is entitled to the emoluments thereof, and whether or not Specter was such had to be resolved as a threshold question. Admittedly, on November 2, 1965, he was elected to the office for a term of four years and continues to hold the office under that mandate. Assuming arguendo, that he is subject to the provisions of the Philadelphia Home Rule Charter and has violated §10-107(5) thereof, 1 still cannot see how the finance director of the city has the power or authority to declare Specter has forfeited title to the office and is not still the de jure holder thereof. 1 Absent such au *122 thority, any attempt to so declare would have no legal effect. Hence, Specter is still the de jure district attorney of Philadelphia and is entitled to the relief he sought in this action, namely, payment of the salary incident to the office. Therefore, regardless of all other considerations, the action of the lower court in this respect should be affirmed.
In view of the above, the question of Specter’s removal from office is not before us, although I am inclined to agree with my Brother Jones that a district attorney can only be removed from office as .the Constitution prescribes.
Hence, whether or not Specter, as District Attorney of Philadelphia, is subject to the provisions of the Philadelphia Home Rule Charter and particularly §10-107 (5) is a distinct and separate question. 2 While I have definite reservations as to the correctness of raising this question in this mandamus action, or the propriety of the court below or this Court in reaching it, I can still understand why, under the circumstances, it has been deemed necessary of resolution.
It is my personal conclusion that Specter, as District Attorney of Philadelphia, is within and subject to the provisions of the Philadelphia Home Rule Charter, particularly §10-107(5). This does not mean that any municipal authority may interfere with, curtail or enlarge upon the functions or powers of the office, for this is solely within the prerogative of the legislature. As I pointed out in my concurring opinion in Commonwealth ex rel. Specter v. Freed, 424 Pa. 508, 521-522 , 228 A. 2d 382, 387 (1967), the powers and functions of the office have been defined by proper legislative enactment, and under the Act of April 21, 1949, P. L. 665, §18(b), 53 P.S.' §13133(b), pursuant to which *123 the Philadelphia Home Rule Charter was adopted, the city is specifically precluded from limiting or enlarging upon these powers or functions. However, §10-107(5) has nothing to do with the powers or functions of the office. It affects only Specter’s conduct outside and beyond his official functions.
Section 9-100 of the charter does provide that any person holding an elective office of the city shall be subject to removal at a recall election but nothing in this section or any other section called to my attention gives any officer of the city the power to declare a forfeiture.
The potential unconstitutionally of any recall or • removal provisions would not affect the validity of the pertinent provisions ruling this question.