Schultz v. Philadelphia

Dissenting Opinion by

Mb. Justice Musmanno:

If the decision handed down today in this case had been promulgated behind the Iron Curtain it might well have been characterized as an illustration of the absolutism which can deprive the people of a voice in their government. The majority of this Court says that the people of Philadelphia are not qualified to pass upon two simple questions submitted to them by their own duly elected representatives, but the majority fails to state why the people are to be disfranchised on a matter involving their own government. One of the submitted questions asks whether the Philadelphia Charter should be amended to allow all officers elected by the people (with their employees) except the Mayor, to be withdrawn from civil service; the other asks whether all officers (and their employees) with the exception of the Mayor, shall be exempt from the prohibition against political activity.

The plaintiffs who have sought and obtained an injunction against the submission of these questions to the people quite clearly desire that both questions be answered in the negative. If the changes contemplated in the questions are bad for the people they would certainly vote them down, and the resulting vote would therefore achieve the result intended by the plaintiffs. If they are good for the people, the peóple would vote in the affirmative. The plaintiffs have blocked the proposéd referendum out of fear that the people might *97 approve the amendments because, obviously, if they believed the people would reject the amendments, they (the plaintiffs) would have spared themselves the expense, time, energy and work involved in initiating this litigation. In that aspect of the case, it is pertinent to inquire on what pedestal do the plaintiffs stand that they can presume to determine what is good and what is bad for the people.

The right of the people to decide any question which affects their welfare is a right enshrined in the Constitution of the United States, the Constitution of the State of Pennsylvania, and, so far as Philadelphia is concerned, in the Home Rule Charter itself. The framers of the Enabling Act and the Charter itself never believed, anticipated, or even desired that their work was to be regarded as impeccably perfect and to be forever free from change. The Home Rule Act of April 21, 1949, P. L. 665, under whose provisions the Charter was framed, outrightly provides for amendment: “Amendments to Charter — Amendments to the charter for the government of any city may be proposed by a resolution of the city council adopted with the concurrence of two-thirds of its elected members . . . The proposed new charter or amendments shall be submitted to the electors for approval or disapproval by the use of the ballot questions . .

The City Council of Philadelphia meticulously followed the procedure outlined by law in enacting the ordinance (No. 125) which is the subject of this lawsuit, and in submitting it to the people for approval or rejection. The lower Court declined to allow the people to pass upon the submitted questions not because of any parliamentary defect in the passage of the ordinance, but because it believed that it knew better than Council what was best for the City. But the Charter did not make of Court of Common Pleas No. 6 *98 an upper chamber to the Philadelphia City Council. Court of Common Pleas No. 6 has no legislative powers whatsoever.

Seemingly acting as a self-constituted Senate to the City Council, Court of Common Pleas No. 6 declared that by enacting Ordinance No. 125 the Council “restored the ‘hodge podge’ of civil service in all appointive offices plus one elective office and no civil service in all elective offices minus one.” It should be of no concern to Court of Common Pleas No. 6 whether the action of the City Council results in a so-called hodge podge. Furthermore, what might seem to be hodge podge to Court of Common Pleas No. 6 might be very good government in the eyes of those entrusted by the people with the responsibility of legislating for the City. As Borne was not built in a day, the government of Philadelphia cannot be rendered perfect with one sweep of a legislative wand. The perfect state is achieved by degrees and not by one avalanching action. What appears like hodge podge to Court of Common Pleas No. 6 is obviously part of a plan that will eventually give to Philadelphia the government that will best fit its needs, its aspirations and desires. It takes time, planning, study and restudy to erect the perfect structure which will house every reasonable demand of the population for ideal democratic government.

No government, business, or institution of any kind can operate on the principle that all those who make up the establishment must have exactly similar duties and exactly the same regimented status. The functions to be performed and the results to be attained inevitably require that every individual within the establishment be assigned that work and that classification which will make his contribution to the final result the best possible in the whole ensemble of the operation. Any person with vision can perceive this. One *99 without vision cannot. The captious critic unschooled in building projects will see in all the stones, bricks, beams, mortar and marble blocks scattered on the ground a mere hodge podge, but the builder with vision will see the completed cathedral. The person ignorant in the arts will call the different pieces and varying colors of an unassembled mosaic a mere hodge podge, but the artist viewing the same material looks ahead and envisions the completed masterpiece of color, form and harmony. The untrained ear in musical appreciation will hear only a hodge podge of sounds as it listens to an orchestra rehearsing, but the musician will hear* in his inner soul the completed symphony of power and beauty.

In a vast enterprise, such as the government of Philadelphia which employs some 30,000 persons, it is impossible to make every single employee a civil service subject, nor would such a design make for the best government. It has by no means been scientifically demonstrated that the best government is the one which guarantees permanent tenure to every person on the government payroll at any given time.

Universal civil service exists nowhere except in totalitarian regimes. In my Dissenting Opinion in the case of Clark v. Meade, 377 Pa. 150, 199 , I pointed out that even the President of the United States did not favor an all-inclusive civil service. I there quoted from the New York Times of June 26, 1953, which 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 order on Monday, Philip Young, Civil Service Commis *100 sion chairman, declared that it would strengthen the merit system in the career Government service.”

With all the undoubted advantages which go with a well-administered civil service system, it would be calamitous in a democracy to assure every person who once mounts a government payroll that he will ride forever on the backs of the taxpayer. Without healthy rivalry and wholesome competition, progress slows down to an eventual stop, and the human spirit stagnates as a weed in still water. The very genius of our form of government is the two-party system but if every employee of the State is to be given a fee simple title to his job, unrelated to approval or disapproval of the people, government will degenerate into barren bureaucracy and the will to achieve will rust like an unused machine. The Charter recognizes this truism and so declares: “Absolutism in this area is neither necessary nor practicable for the fact is that political parties are essential parts of the democratic form of government in the United States.”

Even in the Philadelphia Charter Act of June 25, 1919, P. L. 581, differentiation in civil service was provided for. Section 28 of Article 19, 53 P.S. §3347, declared: “Nothing in this article shall be construed to apply to the officers and employes of any office, department, bureau, commission, board, or trust, not now administered under the existing civil service laws.” In the case of Fruend v. Cox, 321 Pa. 548, 551 , this Court stated that the Civil Service provisions in the Act of 1919 had no application to City Council and its employes. Nor is the Civil Service Act of the Commonwealth of Pennsylvania (August 5, 1941, P. L. 752) all-inclusive.

As already stated, the lower Court introduced into a purely judicial function a concept of political science entirely unrelated to the issue before it. For instance *101 it said: “we are dealing with, the public’s own right to enjoin legislation by a device, that of public debate, which is as democratic as the New England town meeting or the ballot itself.” How does the New England town meeting enter into this? Is it suggested that the two million inhabitants of Philadelphia shall assemble in one convention hall to debate the questions which are submitted by the City Council? Is there not a better way than the over-romanticized idea of a New England town meeting to consider matters of importance to the City? What more democratic method to ascertain the will of the people could be devised than that of allowing each voter to enter into a voting poll and there, alone with his conscience, answer yes or no to question or questions propounded to him?

On February 3, 1956, in accordance with the requirement of the ITome Buie Charter and the Enabling Act, the Committee on Law and Government of the City Council gave notice through the three major newspapers in Philadelphia that a public hearing would be held on February 8, 1956, to consider the ordinance which is the subject of this controversy. The hearing took place. The public appeared and discussion followed. The ordinance as originally written provided that all officers and employes of elected offices in the City were to be exempted from civil service. After the hearing the Committee omitted the Mayor’s office from the provisions of the ordinance and, in this amended state, reported it to Council for passage which then did in fact pass it. Thus, Council enacted an ordinance which was exactly as proposed except that it covered one office less than originally proposed. The Court of Common Pleas saw in this curtailment of the scope of the ordinance a substantial change which required another public hearing on the measure. Why? What would another public hearing have accomplished? City *102 Solicitor David Berger in his able brief makes this significant statement: “At the hearing on the Resolution, the very change here involved was discussed and as a result thereof, as well as of other comments prior to the hearing, the Council determined to make the revision which it did by removing the office of the Mayor from the coverage of the amendments.”

If the change involved was discussed, and this has not been denied by the plaintiffs, the holding of another hearing would supply no more enlightenment on the subject than an oft-played phonograph record. The lower Court says: “The City’s argument that the amending change was ‘clarifying’ is a quibble.” I believe the Court’s statement-to be unfair. Using the Court’s own phrase, I would say that its further comment that “the Council has changed the array of offices without giving the public its right to be heard” will be distinguished in the records of the court as a quibble that is rarely found in judicial dissertations.

The lower Court’s Opinion reads as if City Council had acted clandestinely, surreptitiously, and with guards at the doors to keep the public away. The facts, of course, could not be more to the contrary. Not only was the public invited to be present at the Council-manic hearing, not only was there a discussion of the very amendment later adopted, not only did the newspapers carry stories, articles and editorials on the subject of the Charter amendment, but radio and television programs introduced the debate into the homes of practically all the voters in Philadelphia. To say that the public was denied the right to be heard is a quibble which passes through the realm of sophistry into the area denominated by Shakespeare as “lame and impotent conclusion.” *

*103 It was admitted by plaintiffs’ counsel at the oral argument before our Court that if the resolution had been passed as originally introduced it would have fulfilled every requirement of the law. The original resolution excluded six offices from civil service, the amended ordinance excluded five. If a whole orange is good, why would five-sixths of the same orange be bad? Since, as already stated, the plaintiffs object to excluding any office from civil service, and they are confronted with the possibility of an exclusion of six offices, why shouldn’t they be happy that that exclusion has been reduced to five instead of six?

As sparse as is the record submitted to us for review, I cannot avoid the conclusion that the plaintiffs are thrusting forward the phantom of an alleged parliamentary defect as a means of arguing their aversion to all civil service exclusions. In doing this, they are clothing the shadow of a naked technicality with the garments of a political philosophy. The Court below similarly allowed its ideas on the subject of political science to dictate its judgment on a question which was strictly one of legal procedure. The Majority of this Court, by affirming the lower Court’s decision, has repeated the error. But it has done more — and worse.

The lower Court at least only invalidated the proposed referendum for the present. The assumed parliamentary defect on which it hung its decision could easily be remedied by Council taking up the subject matter at another session and conducting the hearing which the lower Court felt was required. But the Majority here has done the appalling thing of entombing forever the right of the people to pass on the questions under discussion and all others akin to them. That is, the Majority has attempted to bury this right forever. I do not believe it will succeed in this attempt to strait-jacket the future. The bare majority (of one *104 Justice) with which this staggering blow to the people’s rights has been accomplished will melt as the snows of yesteryear, under the light of a later consideration; and the sovereign prerogative of the people to determine the nature of their own government will eventually prevail, as it always does.

While it would be too much to hope that the present Majority would change its mind on the subject, there would be precedent for even that consummation— it would be possible for at least two of the Justices of the instant evanescent Majority to change their minds since they have done it before on this very subject.

The Court says that City Council cannot exercise a power which is denied the Legislature. In Clark v. Meade, 377 Pa. 150 , the Majority of this Court held that the Legislature could not pass a law permitting employees of the offices of Sheriff, City Commissioners, Board of Revision of Taxes, and Registration Commission to engage in political activities. However, Chief Justice Stern and Justice Chidsey specifically declared in their Concurring Opinion in that case that Philadelphia could not be denied the right to authorize the granting of political privileges even though the Legislature could not. If that was good law in March, 1954, why is it not good law in April, 1956? The Justices said in 1954: “It has been suggested that the result of the majority opinion will be to make it constitutionally impossible, even for the people of Philadelphia, to disestablish civil service or to permit the employees of some of the City departments, and not others, to be politically active. That question is likewise not here involved. But, since it has been injected into the discussion, it is not amiss to point out that we are neither holding nor even implying that a resolution of Council, approved by a vote of the people (the procedure for amending the Charter), is the passage of a *105 lato within the contemplation of Article III, Section 7, of the Constitution whose operative prohibitions are directed against the passage by the legislature of certain laws.” *

The Majority says that Clark v. Meade is authority for their decision of today, but in that very case the Majority specifically excluded that that decision could be used as authoritative of the question before us here. Chief Justice Steen and Justice Chidsey said: “We are not passing, either expressly or impliedly, upon the general power of the legislature to enact laws regulating the affairs of the City, nor upon the power of the Council of the City by resolution, approved by a vote of the people, to amend the Charter in any manner that may be desired, as provided by the First Class City Home Rule Act of April 21, 1949, P. L. 665.”

The Majority holds that by operation of Article III, Section 7 of the Pennsylvania Constitution, the local government of Philadelphia is prohibited, like the Legislature, from passing any “local or special law”. If we are to give to precedent something more than a passing nod of recognition, this question is no longer open for contemplation. As far back as 1887 this Court said: “The object of the constitutional provision was clearly to prevent the legislature from interfering in local affairs by means of special legislation; and, if the town councils of cities and boroughs cannot regulate them, they are in a bad way indeed. The principle contended for would prevent the town councils of a city or borough from passing an ordinance to pave one street, unless it also provided for the paving of all the other streets within the limits of the municipality.” (Klingler v. Bickel, 117 Pa. 327 , 337).

*106 I have noted lately in Court decisions a most distressing disposition toward giving to phrases a meaning entirely different from the plain intent of the words of which the phrase is composed. Article III, Section 7 of the Constitution says: “The General Assembly shall not pass any local or special law.” How can the Majority torture the words “General Assembly” into meaning anything other than what they say? Justice Bell made the matter very clear when he said in Commonwealth ex rel. Truscott v. Philadelphia, 380 Pa. 367 , 376: “the words ‘General Assembly’ mean the legislature, and in every village, township and farm they likewise know the difference between the General Assembly or State Legislature and a local council.”

The Majority says further that the City Council of Philadelphia may not submit to the people of Philadelphia the questions proposed because to do so would violate the Constitution prohibiting the “granting to any . . . individual any special or exclusive privilege or immunity.” What is the special privilege or immunity which the City Council is granting? If approved by the people, the Charter amendment would give to certain American citizens the right which the Constitution already guarantees to every one in Pennsylvania : the right to participate in that activity which keeps America the greatest democracy in the world. The phrase “special or exclusive privilege or immunity” cannot by the farthest stretch of language and imagination mean political privileges. It will be noted that the phrase includes the word “exclusive.” What is exclusive about the right to discuss governmental problems, to recommend one candidate over another, to urge one’s friends to vote and to support certain, issues? These are not immunities or exclusive privileges; they are the very breath of our nostrils in America. To say that political activity constitutes an “exclusive privi *107 lege or immunity” is to confuse Pennsylvania with Czecho-Slovakia and Philadelphia with Bucharest.

How is anyone injured — morally, physically, or in any other way — if an employee in the offices here contemplated will, after his work of the day, join with his neighbors in enjoying to the fullest all that American citizenship allows in helping to shape the civic destiny of the community, the State, and the Nation? If a law were enacted prohibiting employees of private firms from engaging in political activities, this Court would at once and properly declare it unconstitutional as an abridgment of the rights of citizenship. Why should the abridgment be any the less when it applies to an employee of the government itself? Who should know more about government than those who work in it and for it? Who should be more qualified to talk about the operation of government and ways for improving it than the very ones who live with it from day to day?

The decision of today not only violates the Constitution, and runs counter to expressed law, but it propounds a very bad policy as well. It suggests that there is something evil in political activity although it does not state what that evil is. Everywhere citizens are being urged to vote, but to vote ignorantly or blindly is worse than not voting at all because abstention at least prevents the casting of a vote for one unworthy of office. What the voter needs is not to be urged to vote but to be given an incentive to vote, and that incentive will come from an awareness of issues, a knowledge of what candidates stand for, and the objectives of the parties. The dissemination of helpful information is facilitated by allowing “political privileges” to those in government. Allowing these so-called political privileges to employees who are active in party affairs does not confer any special advantage to one *108 party over the other because naturally the political privilege would apply equally to members of both parties.

The Majority sees disconcerting irregularity in allowing “assistants, clerks, stenographers and others in some offices to be politically active, while denying the same privilege to employes in other offices performing the same type of work and under the same classification.” But in this respect the Majority is disconcerted unnecessarily. The Charter itself provides for variation on the subject of those entitled to be “politically active.” Section 7-301 of the Charter specifically excepts from civil service: “(a) All officers elected by the people and their deputies, and employees appointed by the members of the Council; (b) The Managing Director, the Director of Finance and the Personnel Director and their deputies, the heads of departments and their deputies, and members of boards and commissions but the number of exempt deputies in any department other than the Law Department, shall not exceed two; (c) Such secretaries and clerks as the Mayor may require and one secretary or clerk for each head of a department, the Director of Finance, the Managing Director, the Personnel Director, the City Representative and the City Treasurer, and one principal assistant or executive director for each board or commission; (d) Persons employed by Contract to perform special services for the City, where such contract is certified by the Civil Service Commission to be for employment which cannot be performed by persons in the civil service; (e) Persons temporarily appointed or designated to make or conduct a special inquiry, investigation, or examination, or to perform a special service, where such appointment or designation is certified by the Civil Service Commission to be for employment which bécausé of its expért or unique character could *109 not or should not be performed by persons in the civil service; (f) Persons who in times of public emergency may be appointed special employees for service not to exceed one month in duration.”

The Majority says that if the City of Philadelphia “could arbitrarily grant to an assistant, a clerk, a stenographer, a telephone operator, or any other employe in one of the City’s governmental offices the right to engage in political activities while denying the same privilege to a similar employe in another office, it could similarly grant, let us say, to one store or one factory a privilege that it denies to another of exactly the same kind.” But as the above enumeration of exemptions from civil service conclusively demonstrates, the Charter actually provides for what the Majority derides. It could well happen that a secretary typing at one machine would be under civil service while the girl next to her would not be subject to civil service restrictions. The framers of the Charter realized that political necessities of municipal government make uniformity in civil service application as impossible as uniformity in women’s dresses or coiffure. The framers of the Charter went to pains to explain this in an official annotation: “The exemptions allowed take cognizance of political necessities of municipal government . . .; supervisory offices necessary for effective municipal administration . . .; the fostering and protecting of necessary personal and confidential relationships . . .; the need for special or expert services by contract or on a temporary basis or employment in cases of public emergencies . . . .”

What the Majority calls an “arbitrary grant” is a rationalized procedure. I fail to see in the illustration above given by the Majority any comparison between the sovereign rights of a citizen to engage in affairs of government and the claim of a store or factory *110 owners for certain privileges which, may be dependent upon a hundred different considerations such as traffic, health, sanitation, etc., etc. The whole fault in the Majority rationale, as I see it, is that it treats the rights of Pennsylvanians as if they were the products of factories instead of according to them the sacred protection due them under the Constitution and the law of the land.

This is a sad day for democracy, all so unnecessary — and I dissent.

Othello, Act II, Sc. 1.

Italics throughout, mine.