# Mayer v. Hemphill > Supreme Court of Pennsylvania · April 26, 1963 · 411 Pa. 1 URL: https://www.frixlaw.com/law-library/cases/9716149 ## Case - **Full name:** Mayer, Appellant, v. Hemphill - **Court:** Supreme Court of Pennsylvania - **Decided:** April 26, 1963 - **Citations:** 411 Pa. 1; 190 A.2d 444; 1963 Pa. LEXIS 473 - **Precedential status:** Published - **Opinion:** Concurrence by Cohen - **Judges:** Bell, Musmanno, Jones, Cohen, Eagen, O'Brien, Roberts - **Cited by:** 37 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9716149 ## Opinion text Concurring Opinion by Mr. Justice Cohen : Since there are no provisions in the Philadelphia Home Rule Charter dealing specifically with the office of “acting mayor,” the Charter’s command that the President of City Council assume the office of mayor upon the death, resignation, or temporary disability of the mayor has raised problems concerning the privi *22 leges and responsibilities of the acting mayor. 1 The proper approach in this matter should be one of seeking the policy behind the particular Charter provision in question rather than attempting rigidly to categorize the acting mayor as mayor or councilman for all times and for all purposes. Appellant asserts—and the majority agrees—that our decision in Mayer v. D’Ortona clothes the acting mayor with the status and obligations of councilman. This is a complete misunderstanding of that decision. In Mayer v. D’Ortona, we merely held that the President of City Council did not forfeit his councilmanic seat when he assumed the office of acting mayor. One of the considerations contributing to that result was the unfairness which would result if the President of City Council was unable to resume his seat in Council where the mayor recovered from his temporary disability, or where the vacancy in the office of mayor was filled by a special election prior to the expiration of the acting mayor’s term as councilman. 2 Certainly we did not intend to brand the acting mayor as a councilman for all provisions of the Charter and hence deprive him and the City of Philadelphia of the powers of the mayoralty office during the incapacity of the mayor. *23 Turning to the Charter provisions in question, sections 3-400 and 10-107(5) state the general proposition that one shall not be a candidate for public office without first resigning his present city position. The policy behind this prohibition is set forth in the official annotation as follows: “This requirement is imposed because an officer or employee who is a candidate for elective office is in a position to influence unduly and to intimidate employees under his supervision and because he may neglect his official duties in the interests of his candidacy.” 3 The framers of the Charter, however, made an exception to this prohibition in the situation where the office sought is the one presently held. Thus section 3-400 provides that the mayor need not resign if he is a candidate for mayor. 4 Presumably, the basis of this exception was a value judgment that the benefit from encouraging continuity in office was more important to city government than the possible harm resulting from the evils envisaged in the above-mentioned annotation. Since the policy of encouraging continuity in office applies as forcefully to an acting mayor as to an elected mayor, I would hold that the framers of the Charter did not intend that an acting mayor be forced to resign in order to run for mayor. However, even if appellant is correct in his contention that Mayer v. D’Ortona compels us to regard the acting mayor as a councilman for all provisions of the Charter, I find no provision which requires a councilman to resign in order to run for public office. Appellant cites section 10-107(5) which provides: “No officer or employee of the City, except elected of *24 ficers running for reelection, shall be a candidate for nomination or election to any public office unless he shall have first resigned from his then office or employment.” A review of the structure and purposes of the Charter: makes it clear that the term “officer or employee” as:used in section 10-107(5) refers to the.executive branch of city government and not to councilmen or other legislative officials, as contended by- appellant. In -the first place, it should be noted that section 10-107(5) is a penal statute since one violating.its provisions faces penalties of ninety days imprisonment, three hundred dollars fine, and ineligibility of one year for any city position. 5 Accordingly, the statute must be narrowly construed. Statutory Construction Act of May 28,1937, P. L. 1019, §58, 46 P.S. §558. Secondly, an examination of the various provisions of the Charter discloses that the framers did not intend to include city' councilmen within this prohibition. Throughout the Charter, a dichotomy is drawn between “officers or employees” on the one hand, and “council-' men” on the other. For example, section 3-306 states that “all officers and employees of the City shall be citizens of the United States-.” If “officers and employees” includes councilmen, what is the need for a separate section—section 2-103—which provides that “a councilman shall be a citizen of the United States.” Section 10 itself further illustrates this dichotomy between legislative and executive officials of city government. Section 10 is entitled “Prohibited Activities of Councilmen, City Officers, Employees' and Others.” Section 10-100 enumerates certain prohibited activities for councilmen; section 10-102 sets forth comparable *25 restrictions, for “city officers and employees.” 6 . Throughout the remainder of section 10, the term “no person” is used in contradistinction to “no officer or employee” where the intent is to include councilmen as well as executive officials. 7 Moreover, this Court held in Freund v. Cox, 321 Pa. 548 , 183 Atl. 924 (1936), that councilmen were not included within a provision of the 1919 Charter which referred to “officer, clerk, or employee” of the city. The framers of the 1949 Charter were' well aware of this judicial interpretation of the phrase “officer or employee.” 8 Finally, if we look at the purposes of section 10-107(5), as set forth in the Official Annotation above, we can see why the framers of the Charter would make the traditional differentiation between the executive and legislative branches of government. Section 10-107(5) was passed to prevent elected officials from improperly utilizing the powers of their present office to gain another office. Members of the executive branch, who control large numbers of employees, present a more serious threat of such abuse than do councilmen who *26 may control only one or two employees. Moreover, in enacting section 10-107(5) the Charter framers were fearful that an officer might neglect his official duties in pursuance of his candidacy. It is much more disruptive of city government where the single individual in charge of an executive department neglects his duties in order to campaign, than where one of the seventeen members of City Council so acts. Herein lies the rationale for the different treatment of the executive and legislative branches of city government by the Charter framers. In conclusion, I would hold that the policy of encouraging continity in office applies as equally to an acting mayor as a mayor, and hence neither of them must resign under section 3-400 in order to run for mayor. However, even if appellant is correct in asserting that Mayer v. D’Ortona compels us to label the acting mayor as a councilman, section 10-107 (5) does not require a councilman to resign in order to run for mayor. For these reasons, I concur only in the result. Section 3-500 of the Charter states that the “President of the Council shall act as Mayor.” (Emphasis supplied.) Hence, as we observed in Mayer v. D’Ortona, it is clear that the Charter framers did not intend the President of City Council to become mayor. The Charter is so clear on this point. For example, suppose the mayor and the President of City Council, are elected in November, 1959 and the mayor dies in January, 1961. The President of City Council would thereupon serve as acting mayor and a special election for mayor would. be held in November, 1961. Suppose the acting mayor did not wish to seek the office of mayor. Absent our decision in Mayer v. D’Ortona, he would be compelled to forfeit the last two years of his term as councilman. Philadelphia Home Rule Charter §10-107(5), annotation 5 (1951). “[The mayor] shall not during his term of office be a candidate for any other elective office whatsoever.” Philadelphia Home Rule Charter, §3-400 (1951). (Emphasis supplied.) See Philadelphia Home Rule Charter, §§10-107(6) and 10-109 (1951). Other examples of this dichotomy are section 8-410 (legal advice for “any officer, department, board or commission”) and section 2-105 (legal advice for councilmen) ; section 3-600 (salary of “Mayor and other officers”) and section 2-100 (salary of councilmen). Also to be noted is section 5-1102 which authorizes the Department of Records “to' examine the records of any office, department, ' board or commission.” The Official Annotation states that this section does not extend to records of City Council because of due respect for the separation of administrative and legislative-functions of government. See, e.g., §10-107(1) : “No person shall seek or attempt to use any political endorsement in connection with any appointment to a position in the civil service.” The section of the 1919 Charter which was involved in Freund v. Cox , is cited as a source for section 10-107. See Philadelphia. Home Rule Charter, §10-107, Annotation (1951). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9716149. Public record. Not legal advice.