The opinion
Dissenting Opinion by
Mr. Justice Musmanno:
To strike down an Act of the Legislature is a deed comparable in gravity to that of affirming a death sentence in a capital case. And it is only when every natural reluctance to signing so solemn a warrant is overwhelmed by the word of the law, by the scales of justice and by the crushing weight of insuperable logic that one can assent to a deed of such appalling and irrevocable finality. I fail to see any such mind-impelling and soul-stifling coercion in this case. As a matter of fact, the cardinal principle upon which our whole system of government is founded argues deafeningly against destroying an Act of Assembly which seeks to reassert the fundamental rights of citizenship. It was because of the deprivation of political rights to participate in government that our Revolutionary War was fought; it was because of the denial of political rights of a numerous and honorable race in our land that the guns of the Civil War rent the land for four years; and it is because of a tyranny which seeks by international terror to chain mankind to the post of slavish and voiceless obedience that today our natural resources are being depleted, our treasury menaced with bankruptcy and the blood of our youth being pledged to war on distant battlefields.
The reasons advanced by my colleague Mr. Justice Bell in behalf of the constitutionality of the Act before us for consideration are not only unanswered by *197 the Majority Opinion and the Majority Concurring Opinion, but, it seems to me, they cannot be answered, successfully. The Dissenting Opinion filed by Mr. Justice Allen Stearns also takes a commanding place in the arena of discussion here and finds no adequate response in the Opinion of the Majority or the Majority Concurring Opinion.
Mr. Justice Bell in his Dissent quotes from the Home Rule Amendment: “ ‘Cities may be chartered . . . Cities, or cities of any particular class, may be given the right and power to frame and adopt their own charters and to exercise the powers and authority of local self-government, subject, however, to such restrictions, limitations, and regulations, as may be imposed by the Legislature.’ ” * Justice Bell then very properly comments that this “enabling amendment is so clear as to need no exposition.” Nor has this constitutional proviso been changed by a word or syllable since it was worked into the mosaic of the supreme law of the land in the year 1922.
On August 26, 1952, the Legislature of Pennsylvania, acting in pursuance of the above quoted reservation of power, enacted a law assuring and guaranteeing to the officers and employees in the offices of Sheriff, City Commissioners, Board of Revision of Taxes and Registration Commission in Philadelphia, certain rights which had been curtailed in the Philadelphia Home Rule Charter of April . 17, 1951. The Majority Opinion and the Majority Concurring Opinion speak of these restored rights as “a special Or exclusive privilege or immunity.”. -But these rights are not special privileges' or exclusive immunities. . .
■ If one surveys the -rest .of the.globe, with almost onéh'alf of . its troubled surface inhabited, by people to. whom *198 self-government is unknown, one could say that from a world point of view, participation in government is indeed a “special privilege,” but in America suck participation is guaranteed to every citizen, and it is, in fact, that very participation which makes America the greatest democracy in history.
The General Assembly of this Commonwealth, made up of 208 elected Representatives and 50 elected Senators, collectively speaking for over 10,000,000 Pennsylvanians, have decided that the advantages of the two party political system, which is the genius of American democracy, shall not be denied the citizens involved in this litigation. Who is there to say that the representatives of the people may not make this decision?
In the ocean of briefs, arguments, citations, statutes, charter sections and subsections upon which the issue in this case has been buffeted, windswept and storm-tossed, it is imperative, in order to avoid complete legalistic shipwreck, to keep constantly before one’s eye the already quoted Home Rule Amendment. This is the chart which marks with mathematical precision the course to be followed in reaching the destination of the people’s will. And that is the only port into which this litigation should be guided; it is the only objective which is constitutionally, legally and morally proper. Neither the Opinions filed by the Majority nor the long brief filed by the appellants can point to one section of the Gonstitution which modifies or limits the'controlling' Home Rule Amendment..
Much is said in deciding constitutional cases about interpreting the will and intention of the Legislature. I do not believe that one needs more than to. read Act No. 433 to ascertain the will of its parent law-makers. But if any interpretation were .'.required, it could well be that the Assembly wished to reassert, even in-this small way, (in view of the oné--party' tyranny Which *199 lias shackled. 800,000,000 inhabitants of the globe,) the adherence of the State of Pennsylvania to the principles of democracy,
I do not believe that the Legislature intended with Act No. 433 to belittle Civil Service, and certainly I do not. The merits of Civil Service have effectively demonstrated themselves over many years. Still no one could assert ex cathedra that the Civil Service system has reached such a superlative level of human efficiency that to advance one word in suggested improvement constitutes lese majeste.
There are those who sincerely believe that permanent- tenure often deteriorates into slothful performance of duty and general indifference to public welfare. The comforting assurance of a non-stop pay check falling unremittingly from the heavens of permanent office-holding could well inspire the average employee into an endeavor over and beyond what is required of him. in discharging the requirements of his job, but it could also corrode in him the spirit of initiative. Calling any particular system a “merit system” does not mean that it is necessarily meritorious. In any meeting of earnest citizens, there will be found those who look upon Civil Service as a guarded haven for busy bees and there are those who will consider it to be a shelter for drones and sluggards.
As recently as last year, the President of the United States indicated that the iron roof of Civil Service covered too- many government employees. The New York Times of June 26, 1953, carried the item: “President Eisenhower-issued today an Executive Order withdrawing Civil Service protection from about 134,000 Federal jobs, thus making it possible to dismiss Democrats holding confidential or policy-making positions.
- “The order' consisted merely - of a paragraph amendment to a Civil Service -Rule, but in forecasting,.the *200 order on Monday, Philip Young, Civil Service Commission chairman, declared that it would strengthen the merit system in the career Government service.”
If it was the opinion of the United States Civil Service Chairman, and presumably also that of President Eisenhower’s, that the merit system would be improved by dismissing 135,000 persons who up until that moment had regarded themselves as immovably planted on an eternal payroll, by what type of reasoning does one arrive at the conclusion that the Legislature of Pennsylvania does not have the same freedom of selection between civil service and non-civil service in the government of the City of Philadelphia?
There may be involved here a difference of opinion as to whether the wall of permanent tenure is a protection against unjust dismissal or whether it is a curtain behind which flourish ineptness, indifference and indolence, but it is because of difference in opinions that we have a United States Congress, State Assemblies, city and borough councils, township commissioners and other types of legislative bodies. The sovereign deliberative body of the Commonwealth of Pennsylvania has determined that certain offices in the city government of Philadelphia could do, and should do, without certain Civil Service features. By what right does this Court challenge the decision of the Legislature in this respect? -We have said- repeatedly that it is never the province of this Court to question the wisdom of a legislative policy. We can only interfere with the solemn acts of the Assembly when it goes beyond the framework of- the organic law of the land. But, I repeat,-there--is nothing in thé'Majority Opinions which show that the-Legislature did-usurp unconstitutional powers»""
■-‘"'In Pittsburgh Petition, 217 Pa. 227 , this-Court, •'speaking-through-Mr.'-Justice Brown, emphatically dé *201 dared: . . the creation of municipal corporations, and the conferring upon them of certain powers and subjecting them to corresponding duties, does not deprive the legislature of the state of that general control over their citizens which they before possessed. It still has authority to amend their charters, enlarge or diminish their powers, extend or limit their boundaries, consolidate two or more into one, and overrule their legislative action whenever it is deemed unwise, impolitic or unjust, and even abolish them altogether in the legislative discretion and substitute those which are different.”
The appellants, of course, do not deny that the Legislature is the supreme law-making body of the Commonwealth, but their position seems to be that once the Legislature has spoken on the subject of home rule charters, it may not speak again. The appellants would make of the Legislature on any given topic a phonograph Avith one record. They would regard the Legislature as an oracle of Apollo, foreseeing every possible future event, requiring it to be prepared for those anticipated happenings, and holding it to the conjectured number of umbrellas for the predicted rains and the predetermined number of parasols for the forecast sunshine. Any mistake in calculation could not be corrected and any error in dirination would simply be the ill luck of the people.. Fitted to a Procrustean bed by the Legislature, the people would have no right to complain, protest or repine.
Of course, it is obvious that in this respect the appellants write their contention in water for the Legislature is intended to be a living, speaking mirror of the people’s will of today and not a museum of. miscalculated prophecies. History teaches that the ideal in .any given .phase of government is. attained only after debate, experimentation, and even trial and error. A1-,
*202 though no saving clause for future legislative interposition was needed, nonetheless the Consolidation Amendment specifically provided for future legislative action through Section 7: “Upon adoption of this amendment all county officers shall become officers of the city of Philadelphia, and, until the General Assembly shall otherwise provide, shall continue to perform their duties and be elected, appointed, compensated and organized in such manner as may be provided by the provisions of this Constitution and the laws of the Commonwealth in effect at the time this amendment becomes effective, but such officers serving when this amendment becomes effective shall be permitted to complete their terms.”
The General Assembly has now, by a duly enacted statute, otherwise provided. The decision of the Legislature may be disappointing, even disillusioning, to the good citizens who worked indefatigably and conscientiously in the drafting and advocacy of adoption of the Philadelphia charter, but they must bow to the will of the people as spoken through their representatives in Harrisburg.
Appellants argue in their brief that Section 5 of the Legislative Act of August, 1953, “provides that the former county offices are re-constituted and that they shall be governed as if the City-County Amendment had never been adopted.” This is exaggeration without benefit of allegory; There is no such intention, express or implied, in the Act. As a .matter of fact, the very Declaration of Purpose of the Act definitively proclaims: “The purpose of ..this act is to carry out the intent and purpose of Article XV,. Section 1 of the Constitution of Pennsylvania, known as the ‘Home Rule Amendment’, and Article XIV,. Section. 8 of the Constitution, of Pennsylvania,, known ’as. th.e ‘City-. County Consolidation Amendment’,’’..-'A
*203 I do not detect in Act No. 433 any lack of sympathy on the part of the Legislature for Philadelphia home rule. At the same time I can see in the Act a firm intention on the part of the legislators of the Commonwealth to assert their power to protect the rights of American citizens in such manner as they regard proper and salutary for the best interests of Philadelphia and the Commonwealth.
The Majority and Majority Concurring Opinions seek to rationalize their demolition of Act No. 433 by pointing out what they regard as inconsistencies in the Act. They point out that elective officers are joined with appointive officers, that clerks in certain offices are to be controlled by civil service, that clerks in other offices are to be free from civil service, and that some classifications are arbitrary. Most Acts of the Assembly are bound to be arbitrary in the sense that they affect, alter or abolish the status quo in any given situation. That is the very nature of a legislative act, and we have no right whatsoever to enter into the legislative halls to raise a hand in objection to what is transpiring there unless we see a clear violation of the Constitution. We have made this judicious, sagacious and salubrious aloofness plain in a number of decisions. In Commonwealth v. Grossman, 248 Pa. 11, 15 , the renowned Justice Mestrezat, speaking for the Court, said: “The legislature is the sole judge of the wisdom and expediency of a statute, as well as of the necessity for its enactment, and whether the legislation be wise, expedient or necessary is without importance to the court in determining its constitutionality. In other words, the assembly has a free hand to legislate on every subject in such a manner as it deems proper unless there is a constitutional prohibition clearly expressed or necessarily implied.”
Is there any reason - why this perspicacity should *204 not be observed in the case before us? We have no right to veto the solemn pronouncements of the Legislature, which, after constitutional deliberation, has decided that the employees in four Philadelphia offices shall be allowed freedom in political activities.
The phrase, “political activities,” does not of itself import misconduct or impropriety. It is true that during the last several decades the phrase has, in certain associations, taken on a connotation which certainly is not included in the scope of Act No. 433. The Legislature never intended to imply, (nor can any one reasonably read into the Act any such implication,) that there is something evil in a government worker’s holding or expressing any idea on what is best, politically, for the city, state or nation.
The incredible paradox is that while some political science academicians see something calamitous in a typist or file clerk expressing a preference for mayor, governor or president, they at the same time argue strenuously for free speech for Communists (using the glib phrase of “a market place of ideas.”) As recently as January 25, 1954, Mr. Justice Jones, speaking for the majority of the Court in the case of Commonwealth v. Nelson, * 377 Pa. 58 , 104 A. 2d 133 , stated that the right of all individuals (including Steve Nelson, atom bomb spy and leader of the Communist Party of Western Pennsylvania), “to speak freely .and-without fear, even in criticism of the government, will at the same time be protected.” •
In striking down Act No. 433, the. Majority.do not. define the boundaries of the “political activities”- therein-referred to. What distinction is to-be. made.between *205 a Communist castigating the government and a clerk in the Sheriff’s office criticizing the Mayor, the Governor or the Secretary of State? According to the Court’s reasoning in these two cases, the Communist will be protected in free speech even in urging a change of government, but the clerk who may express a desire to see a change of mayor, councilman, governor or congressman, will be discharged. This is not the traditional American way of doing things. And as custom and tradition made the British common law, so have American custom and tradition entered, through statute and judicial interpretation, info the warp and woof of American law.
As recently as Monday, March 22, 1954, (as reported in the Philadelphia Inquirer of March 23, 1954), the leaders of both the Republican and Democratic Parties urged citizens to a greater participation in political activities. Speaking in Philadelphia at the 50th Anniversary Dinner of the Committee of 70, Leonard W. Hall, Republican National Chairman, declared that the citizen’s place in politics was “never more important,” than today. He said that the national administration under the leadership of President Eisenhower, “invited participation and urged continued interest of the average voter to achieve a truly citizen government.”
Stephen A. Mitchell, Democratic National Chairman, said that a citizen cannot be effective “if he stands aloof from party politics” and restricts his interest in government to voting. He emphasized that to he fully effective, “citizens must participate in selections of party officials and candidates.”
Neither one of these distinguished citizens of the United States suggested that the employes of the four offices involved in this litigation are not citizens in the fullest sense of the word.
*206 The reason for the comparatively short terms allotted to Congressmen, assemblymen, mayors and councilmen is to allow the people opportunity at reasonable intervals to pass judgment upon the work of their representatives. That work can only be properly evaluated and appraised through the fullest expression by those who observe, those who study, and those who engage in the work itself. There are statutes on the books to punish those who misuse their official positions for private profit or for coercive succession in office.
With the extensive dissemination of news today through the competitive and cumulative media of newspapers, magazines, radio and television, there is but little chance for a repetition of the abuses which made up so many governmental scandals of the past. It was therefore for the Legislature to decide whether “political activities” would be conducive to any such repetition, and the Legislature has decided that such danger has melted away in the crucible of public knowledge and public awareness to what constitutes proper “political activities.”
The Majority Concurring Opinion condemns Act No. 433 because, inter alia, it does not grant or deny the privilege of political activity to all City employes, but only to the employes of four particular City offices. This the Justices in the Majority Concurring Opinion regard as an arbitrary selection. The Pennsylvania Legislature may make such selection as it. sees fit. It may for purposes of experimentation try out four offices and then other offices later. If, however, (as the appellants and the Majority of the Court seem to contend,) removing the cloak of Civil Service from the backs of certain employes will subject to them a rigorous political climate from which they should be protected, the action of the Legislature, then, *207 to that extent, is giving shelter and warmth to those not included within the scope of Act No. 433. Equality of privilege does not mean equality of misery.
The discussion of local and special laws in the Majority Concurring Opinion is well answered in Justice Allen Steaenf’s learned Dissent, and all other arguments in behalf of unconstitutionality projected in both the Majority and Majority Concurring Opinion, are exceedingly well covered in Justice Bell’s distinguished Dissent. I, therefore, terminate my Dissent with the statement that so long as Philadelphia is part of Pennsylvania, the General Assembly will legislate for it with all the powers conferred upon it by the Constitution. As far back as 1870, the celebrated Mr. Justice SiiARSWOGD, speaking for this Court, said: “The City of Philadelphia is beyond all question a municipal corporation. . . It is merely an agency instituted by the sovereign for the purpose of carrying out in detail the objects of government — essentially a revocable agency — having no vested right to any of its powers or franchises — the charter or act of erection being in no sense a contract with the state — and therefore fully subject to the control of the legislature, who may enlarge or diminish its territorial extent or its functions, may change or modify its internal arrangement, or destroy its very existence, with the mere breath of arbitrary discretion.” (Philadelphia v. Fox, 84 Pa. 169 , 180 (1870))
Thirty years later, Mr. Justice Mitchell emphasized the same irrefutable doctrine in the case of Commonwealth v. Moir, 199 Pa. 534 , 541: “Municipal corporations are agents of the state, invested with certain subordinate governmental functions for reasons of convenience and public policy. They are created, governed, and the extent of their powers determined by the legislature, and subject to change, repeal, or total *208 abolition at its will. They have no vested rights in their offices, their charters, their corporate powers, or even their corporate existence. This is the universal rule of constitutional law, and in no state has it been more clearly expressed and more uniformly applied than in Pennsylvania.”
The right to participate in political activities is one of the fundamental rights that a citizen enjoys. It is in this manner that he most effectively identifies himself as part of the great Commonwealth. The clergy, the newspapers, civic organizations and other public-spirited groups urge in every election campaign that the people vote. Voting alone is not enough. Voting ignorantly can cause more harm than not voting at all because in blindness one may press the lever which will open the door to a candidate bent on mischief or another wholly without qualification or experience for the office sought. Conscientious study, intelligent observation and untrammeled discussion make for an enlightened citizenry, — and an enlightened citizenry makes for good government.
As I would not gag or shackle the lowliest citizen in the United States in his desire to participate in this government which exists for him, I would not padlock the lips or throw political chains around any citizen in, — of all places, — Philadelphia, the very cradle of liberty!
Italics throughout,-mine,
The majority of the Court in this case consisted of Chief Justice Stern, and Justices Stearne, Jones and Chxdset.. Justice Bell wrote a vigorous dissént. Neither Justice Arnold nor 4 participated in' the' deliberation'ór decisiorrof the ease;