Commonwealth Ex Rel. Truscott v. Philadelphia

Concurring Opinion by

Mr. Chief Justice Horace Stern :

In Lennox v. Clark, 372 Pa. 355, 370 , 93 A. 2d 834, 841 , we pointed out that by virtue of the City-County Consolidation Amendment all former county offices became a part of the municipal government and what we termed the “inter city-county consolidation” was thereby effected. But we added that the activities or functions of those offices was not changed, that they were to operate just the same as before and continue to perform their duties until the next stage of the project was entered upon, namely, what we termed “the intra city consolidation,” that is, the reorganization or “streamlining” of the municipal governmental *380 structure thus enlarged by the acquisition of the former county offices. And we stated that, in view of clause 7 of the Amendment, the question remained whether, in order to accomplish such “mira city consolidation,” any proposed reorganizations, regroupings, abolitions or mergers of the former ■ county offices, designed the more advantageously to incorporate their functions into the existing municipal structure, would have to wait upon action by the General Assembly. We are now called upon to decide that question.

The Home Rule Act of April 21, 1949, P.L. 665, granted to the City of Philadelphia the right to adopt a charter and thereupon to possess all powers and authority of local self-government, with complete powers of legislation and administration in relation to its municipal functions; it further stated the charter might provide for a form or system of municipal government to the full extent that the General Assembly might legislate in reference thereto and with like effect. Undoubtedly, therefore, if the Board of Revision had then been a city office, the City of Philadelphia, under the powers thus given by the Act, and having adopted a charter’as authorized by it, would have had the power to do what it is now attempting to do by the Ordinance of August 16, 1954, namely, to abolish that Board and transfer its powers and duties to the office of Chief Assessor and the Tax Review Board. But it must be borne in mind that at the time of the adoption of the Home Rule Act the City-County Consolidation Amendment had not yet come into being; therefore the Act had relation, and could have had relation, only to the components of the municipal structure as it then existed and of which the county offices were not a part. On November 6, 1951, the City-County Consolidation Amendment was adopted by the electorate and became a part of the Constitution of the Common *381 wealth and thereby the supreme law. It provided that the county offices were abolished and that all their functions were thereafter to be performed by the city. Accordingly, we held in the Lennox case that by virtue of the Amendment the employes of the county offices automatically became city employes and, as such, subject to all the laws then in existence governing such employes. By the same token, the same result would have been achieved in the case of the county officers were it not for the fact that the Amendment, after providing that all the county officers should thereupon become officers of the City of Philadelphia, chose, by Clause (7), to place an express restriction upon the process of “intra city consolidation” by providing that “until the General Assembly shall otherwise provide they should “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, ... .” In other words, what the Amendment practically said was that, although the Home Rule Act of 1949 gave the city the power of determining its own municipal structure, now that the county offices are being added to that structure this is being done subject to the proviso or restriction that the officers should continue to carry out their duties in the same manner as they were then doing under the laws then in effect, which is equivalent to saying that their functions could not be taken over by other persons or agencies until and unless the General Assembly should otherwise so provide. Obviously, upon the abolition of a county office its officers could no longer “continue to perform their duties” as at the time of the adoption of the City-County Consolidation Amendment. Nor were the laws then in effect regulating the manner in which the *382 county officers were to perform their duties in any way altered or affected by the mere fact that the Legislature had previously, in 1949, authorized Philadelphia to adopt a Home Rule Charter. Moreover, it seems to me impossible, in view of the future tense of the verb “shall provide,” to interpret Clause (7) as meaning other than that the county officers should continue to perform their duties until the General Assembly should otherwise thereafter provide. Speaking as of November 6, 1951, the Amendment evidently intended that any change in regard to the performance of their duties by the county officers would have to be by future action of the General Assembly dealing specifically with that subject.

After the adoption of the Amendment the General Assembly could have provided for the abolition, merging, or regrouping of former county offices within the municipal governmental structure in either one of two ways; it could have itself legislated directly on the subject, or it could have authorized the Council of the City of Philadelphia to do so. It chose to adopt the latter method, and, by the Act of August 26, 1953, P.L. 1476, it vested the Council with “full powers to legislate with respect to the election, appointment, compensation, organization, abolition, merger, consolidation, powers, functions and duties” of several of the former county offices, but it withheld such grant of power in the case of the Sheriff, the City Commissioners, the Board of Revision of Taxes, and the Registration Commission. The vesting in the Council of the power with respect to the other offices was clearly valid.

However illogical or unwise the action of the Legislature may have been in preventing the complete fulfillment of Philadelphia home rule, I am obliged, since the court has no concern with the wisdom of legislation but only with its legality, to concur in the majority opinion.