# Commonwealth Ex Rel. Truscott v. Philadelphia > Supreme Court of Pennsylvania · January 12, 1955 · 380 Pa. 367 URL: https://www.frixlaw.com/law-library/cases/9749351 ## Case - **Full name:** Commonwealth Ex Rel. Truscott v. Philadelphia - **Court:** Supreme Court of Pennsylvania - **Decided:** January 12, 1955 - **Citations:** 380 Pa. 367; 111 A.2d 136 - **Precedential status:** Published - **Opinion:** Dissent by Jones - **Judges:** Stern, Stearne, Jones, Bell, Chidsey, Musmanno, Arnold - **Cited by:** 18 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/9749351 ## Opinion text *383 Dissenting Opinion by Mb. Justice Jones: The single question for decision in this case is whether the Council of the consolidated City-County of Philadelphia has the power to allocate by ordinance the functions of a constitutionally abolished County office to a City department or agency created by Council in an exercise of its purported power under the Philadelphia Home Rule Charter. In addition to the Charter, which was adopted by the electors of Philadelphia on April 17, 1951, the other enactments pertinent to a solution of the instant problem are the First Class City Home Rule Act of April 21, 1949, which authorized the Charter, and the City-County Consolidation Amendment of the Constitution adopted November 6, 1951, which was initiated by resolution of the Legislature first passed at the 1949 Session. The answer to the question here involved is not to be found in finely-spun reasoning from arbitrary legal generalities based on the relative chronology of the adoption or effective dates of the various relevant enactments. Nor does the answer depend upon whether the term “General Assembly”, as employed in Clause 7 of the Consolidation Amendment, means “General Assembly”, — an inquiry to which the majority opinion so largely devotes itself to the exclusion of the real issue presented. We are all agreed that, of course, “General Assembly” means the General Assembly of the Commonwealth and not the Council of the consolidated City-County of Philadelphia. The proper approach to the problem is contained in the admonition of Mr. Chief Justice Steen in Carrow v. Philadelphia, 371 Pa. 255, 257 , 89 A. 2d 496 , where he said that “The solution of the legal problem presented is entirely free from difficulty if the controlling enactments are read with an eye to their plain and unequivocal meaning instead of with a straining after forced constructions *384 and a seeking of ambiguities where none exist.” See, also, the same effect Lennox v. Clark, 372 Pa. 355, 362 , 93 A. 2d 834 . The present inquiry, just as in the Car-row and Lennox cases, is but a part of the same sui generis subject-matter. Never before has the problem of integrating home rule into a consolidated city-county government arisen in this State and further consolidations of such nature are not likely to occur. If they do, it can be only by virtue of additional constitutional amendments. The present question calls for disposition on the basis of a judicial interpretation of the Statute, the Charter and the Amendment with an eye single to the ascertainment of their true intent and purpose. None of our prior decisions forecloses the answer. In fact, the precise question was expressly reserved in Lennox v. Clark, supra, for future decision if and when it should justiciably arise. It is now beyond cavil that Philadelphia’s Home Rule Charter, authorized, as it was, by the First Class City Home Rule Act of 1949, clothed the City with power to legislate in respect of matters pertaining to its municipal government as fully as the General Assembly could do in reference thereto and with like effect. Section 17 of the Home Rule Act of 1949 invested the City with power to include in its Home Rule Charter (1) “all powers and authority of local self-government”, (2) “complete powers of legislation- and administration . in relation to its municipal functions”, (3) “the..exercise of any and all powers relating to its municipal functions ■. . . to the. full extent that the General Assembly may legislate in reference thereto as to cities of the first class, and with like effect” and (4) power to “enact ordinances, rules .and regulations necessary and proper for carrying into., execution the foregoing ..powers, and all other., powers, rested in the *385 city by the charter it adopts or by this or any other law.” And, Section 1-100 of the Home Rule Charter, in avowed pursuance of the Home Rule Constitutional Amendment of 1922 (Art. XY, Sec. 1) and the First Class City Home Rule Act of 1949, expressly provided that “the City of Philadelphia . . . shall have and may exercise all powers and authority of local self-government and shall have complete powers of legislation and administration in relation to its municipal functions, including any additional powers and authority which may hereafter be granted to it.” The plaintiffs contend, however, that, because of certain provisions in Clause 7 of the City-County Consolidation Amendment, a further Act of Assembly is required before there can be allocated by Council to a City agency or department the functions of the former County Board of Revision of Taxes notwithstanding that Clause 1 of the Amendment, immediately upon its adoption, abolished forthwith the office and, at the same time, ordained that “henceforth” the City should perform all functions of the office. That the abolition of the office and the transfer of its functions was immediate, no one can deny. As Mr. Chief Justice Steen said in the Lennox case, with respect to Clause 1 of the Amendment, — “The crucial words there to be noted are ‘hereby’ and ‘henceforth.’ The county offices are abolished, not at some indefinite time in the future when a legislative body might so enact, but ‘hereby/ that is, by virtue of the constitutional amendment itself, which in this respect, therefore, is obviously self-executing. It-will be-further-noted that all the functions of county government, that is to say, all the activities or duties theretofore performed by the county officers, are thenceforth to be performed by the city; the city is to -take over then and there, as part of its own government, the performance of the *386 functions of the county government.” Where, then, is the necessity for a further Act of Assembly before the City, in the exercise of its Home Rule powers, can perform the functions which Clause 1 of the Amendment specifically imposed upon it? The Consolidation Amendment (Article XIV, Section 8) provides in Clause 7 that “until the General Assembly shall otherwise provide”, the incumbent officers of the abolished County offices (who by the same Clause became, forthwith, City officers) “shall continue to perform their duties and be elected, appointed, compensated and organized” as provided by the “Constitution and the laws of the Commonwealth in effect at the time this amendment becomes effective . . . .” On the basis of that provision, the plaintiffs argue that the Board of Revision of Taxes, as such, continues to exist and that the functions of the office cannot be committed to the City’s disposition except by a further Act of Assembly. Plainly enough, the contention not only ignores but, once adopted, will effectively nullify the express language of the first clause of the Amendment which abolished the office and transferred all its functions to the City. By what reason or logic can such an interpretation be justified? The majority say Clause 7 is a constitutional provision and therefore supreme. So much may be granted, but that does not make it supreme over Clause 1. Both are integral parts of the same constitutional Amendment and must be read together and reconciled and each given its intended effect. There is not the slightest justification for intérpreting Clause 7 so as to nullify the primary purpose of the Amendment as contained in Clause 1, viz., the consolidation of the City and County governments by abolishing the County offices and reposing all of their functions in the City. *387 There is no conflict between Clause 1 and Clause 7. They respectively apply to different phases of the consolidation. Clause 1 applies to County offices all of which it abolished and whose functions it committed to the City with neither qualification nor restriction. Clause 7 applies to the officers of the abolished County offices and the duties, powers, etc. of such officers in a certain contingency which we shall hereinafter consider. As we observed in Suermann v. Hadley, 327 Pa. 190 , 193 A. 645 , — “There is a vast difference between abolishing an office and removing the incumbents of an office.” It was held in that case that, although the terms of the members of the Board of Revision of Taxes could not be terminated without violating Article VI, Section 4, of the State Constitution, the abolition of the office itself was no violation of that constitutional provision- — a principle presently recognized by the last part of Clause 7 which permits the County officers serving when the Amendment became effective to complete their terms. It follows that, apart from the portion of Clause 7 hereinbefore quoted, there was no constitutional requirement that the officers of the abolished County offices be permitted to perform any of the duties of their former offices as City officers. What, then, was the intendment of Clause 7 in respect of a possible further Act of Assembly? The purpose of Clause 7 is both evident and understandable. Indeed, it was a necessity in the circumstances of charter formulation and promulgation, on the one hand, and City-County consolidation, on the other, both of which proceeded more or less abreast for somewhat the same period of time through requisite legislative and electoral processes. When the resolution providing for the submission of the proposed Consolidation Amendment was first introduced at the legislative session of 1949 it obviously could not then be *388 known and, consequently, was not known whether a home rule charter for Philadelphia under an Act introduced and enacted at the same 1949 legislative session would ever be adopted. Clause 7 of the proposed Amendment was, therefore, advisedly drafted so as to accommodate the situation that would obtain if the Amendment were adopted and the Home Rule Charter defeated. In such a contingency, the City’s legislative power would have been no greater than what it possessed under its existing Charter of 1919 and extant statutes applicable to the City. It is manifest, therefore, that with Home Rule rejected, the City would have been without power to integrate in its municipal government the functions of the late County offices which, upon the adoption of the Amendment, became the City’s responsibility. It was in that situation that the officers of the abolished County offices were to continue to perform their duties, etc. until the General Assembly provided otherwise as directed by Clause 7. In the other possible contingency, i.e., had the Home Rule Charter been adopted and the Consolidation Amendment been rejected, there would have been no problem. Philadelphia would have operated the City government under the Home Rule Charter instead of its Charter of 1919 and the County government would have continued as theretofore. What, then, is the course to be pursued for the integration of the functions of the late County offices into the City government since both the Charter and the Amendment were adopted? The answer is plain enough. It is the province of the City Council under the Home Rule Charter to act to that end without the necessity for any further legislation by the General Assembly. And, that is so by virtue of the very provision in Clause 7 which the plaintiffs cite in support of their úntenable position. *389 Clause 7, as already indicated, provided that “until the General Assembly shall otherwise provide”, the officers of the abolished County offices were to continue to perform their duties, etc. under the laws of the Commonwealth in effect at the time the Amendment became effective. At that time (viz., November 6, 1951), the First Class City Home Rule Act of 1949 was obviously an existing law of the Commonwealth. That Act had been passed pursuant to the constitutional authority contained in the Home Rule Amendment of 1922 (Article XY, Section 1) which authorized the General Assembly to delegate a part of its legislative authority to local governmental units so that cities might “exercise the powers and authority of local self-government.” So much of the Home Rule Amendment as is presently pertinent provides that “Cities . . . 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.” The Home Rule Act of 1949 conferred upon cities of the first class what Mr. Chief Justice Steen aptly characterized in the Carrow case as a “sweeping grant of powers” for their home rule, so much so, in fact, that the extent of the authority delegated by the legislature to a city of the first class can be fully appreciated only by reference to the exact wording of Section 17 of the Home Rule Act of 1949 which we have hereinbefore summarized. The power and authority extended by the Home Rule Act to the City of Philadelphia resulted in the drafting of the Home Rule Charter which was duly accepted by the electorate of Philadelphia on April 17, 1951. The Philadelphia electorate’s unqualified acceptance by its vote on the Charter of the legislature’s offer *390 of the Home Rule powers authorized by the Act of 1949 constituted a governmental compact whereby the City of Philadelphia was thenceforth clothed with such powers by virtue of a law in effect prior to and at the time the Consolidation Amendment became effective, albeit the City was not to exercise its accepted powers until January 7, 1952. The postponement of the effective date of the Charter cannot possibly affect the construction of Clause 7 of the Consolidation Amendment. Had the Charter been made effective by its terms, as it readily could have been, any time after its adoption but prior to the vote on the Consolidation Amendment, the contention which the plaintiffs now advance could not have been raised. Constitutional questions do not depend for solution upon a fortuity which has nothing whatsoever to do with the substantive constitutional provision involved. Nor is there any merit in the suggestion that the offices abolished by the Consolidation Amendment, being County offices, were not within the purview of the 1949 Home Rule Act. Such offices, qua officeswere completely extinguished by the Consolidation Amendment. It was only the functions of those offices which were placed within the City’s governmental competence. Thereby, the former County functions became City functions and, as such, were subject thenceforth, for their faithful performance, to the City’s disposition under its Home Rule powers. City functions properly require city action and that is what the citizens of Philadelphia undoubtedly understood they were attaining when' they provided in their Charter that “. . . it is the intention of the electors in adopting this charter that it shall supersede all statutes or parts of statutes, local, special or general, and all ordinances of the City, affecting, the organization, government and powers of the City to' the extent that they are incon *391 sistent or in conflict with this charter”: Charter, Section 11-101. The fact that the City caused the Act of August 26, 1953, P. L. 1476, to be introduced in order to transfer to City departments the functions of the Coroner, Recorder of Deeds, City Treasurer, Clerk of the Court and the Board of Inspectors of the Philadelphia County Prison was done out of an abundance of caution, as the City Solicitor states, and, of course, does not preclude this court from interpreting properly the meaning of Clause 7 of the Consolidation Amendment. In fact, the eminent, bi-partisan Advisory Consolidation Commission deemed it to be an act of caution to request legislation confirmatory of the power of Council so to act, even though such power was expressly conferred by Section 1-102 (2) of the Charter: see Report of the Consolidation Commission, Journal of the City Council [of Philadelphia], 1953. Being firmly of the opinion that it was entirely within the power of City Council under the Home Rule Charter to enact the ordinance of August 16, 1954, transferring the functions of the former Board of Revision of Taxes to the Office of Chief Assessor and to the Tax Review Board, I would dismiss the complaint. Mr. Justice Chidsey joins in this dissenting opinion. Mr. Justice Musmanno dissents. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9749351. Public record. Not legal advice.