“It will be further noted that [upon the adoption of the constitutional provision], 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 functions of the county government.”
How later courts described this case
- “It will be further noted that [upon the adoption of the constitutional provision], 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 functions of the county government.”
- 4 join in majority opinion; 2 separate concurring and dissenting opinions filed
- BRT member is City officer and, pursuant to Home Rule Charter, may not engage private attorney to represent him in matter related to pub-lie business without approval of City Solicitor
- removal or discharge of city employee is municipal matter for which power authorized in Home Rule Charter prevails
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Walsh v. TATE, 444 Pa. 229 (1971)
The trial court, believing this language to be ambiguous, relied on Lennox v. Clark, 372 Pa. 355, 93 A.2d 834 (1953), overruled on other grounds, Walsh v. Tate, 444 Pa. 229, 282 A.2d 284 (1971), to ascertain the intention of the General Assembly.
Distinguished
Distinguished by Board of Property, Assessment, Appeals, Review & Registry v. County of Allegheny, 2001 Pa. Commw. LEXIS 102 (2001)
.The Board argues that Lennox does not apply here because the facts and law are distinguishable.
Distinguished by Commonwealth ex rel. Specter v. Martin, 426 Pa. 102 (1967)
Other than in Article XIY, §1, the office of district attorney was not specifically mentioned in the Constitution and, therefore, in that respect Lennox is distinguishable.
The opinion
Opinion Concurring in Part anb Dissenting in Part bx
Me. Justice Bell:
The Constitution of Pennsylvania, Article XIV, §1, provides: “County * officers shall consist of sheriffs, coroners, . . . recorder of deeds, commissioners, . . . clerks of the courts, district attorneys . . . .” In the light of this clear language it is difficult to understand how anyone could successfully contend that a sheriff, a coroner, a recorder of deeds, a county commissioner, or a clerk of courts, is not a county officer.
The City-County Consolidation Amendment — Article XIV, §8, which was proposed by Joint Eesolution No. 4, 1949, P. L. 2139, and Joint Eesolution No. 1, 1951, P. L. 2211, passed by two legislatures and adopted by the voters of Pennsylvania, provides:
“AETICLE XIV
County Officers
Sec. 8. City and county of Philadelphia; consolidation of governmental functions; county offices abolished
(1) In Philadelphia all county offices are hereby abolished, and the city shall henceforth perform all functions of county government* within its area through officers selected in such manner as may be provided by law.
(2) Local and special laws, regulating the affairs of the city of Philadelphia and creating offices or pre *382 scribing the powers and duties of officers of the city of Philadelphia, shall be valid notwithstanding the provisions of section seven of article three of this Constitution.
(3) All laws applicable to the county of Philadelphia shall apply to the city of Philadelphia.
(4) The city of Philadelphia shall have, assume and take over all powers, property, obligations and indebtedness of the county of Philadelphia. .
(5) The provisions of article fifteen, section one of the Constitution shall apply with full force and effect to the functions of the county government hereafter to be performed by the city government.
(6) This amendment shall become effective immediately upon its adoption.
(7) IJpon 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 organised 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. Amendment adopted at election Nov. 6, 1951.”
The language of the Amendment and its meaning seem to us absolutely clear. In Philadelphia all county offices are abolished (not by some future legislative body, but) by the Amendment itself. The Amendment becomes effective, not at some future time, but immediately. Former county officers immediately became city officers and the city through these officers and their employes shall forthwith ,and until the General Assembly shall thereafter otherwise provide, continue to *383 perform tlieir duties and all functions of county government. These provisions are clearly self-executing and, as we have seen, take effect immediately upon the adoption of the Amendment.
We agree with the majority of this Court which, in a very able opinion by the Chief Justice, hold (a) that the Sheriff’s Office, the Coroner’s Office, the County Commissioner’s Office, the Office of the Recorder of Deeds, and the Office of the Clerk of the Courts were county offices; and (b) that the City-County Consolidation Amendment and The Philadelphia Home Rule Charter apply to them and make them now City offices; and (c) that the “real and designed result was that, when the former county officers became city officers and the former county employes city employes, they automatically became subject thereby to the laws then in effect governing and regulating city officers and employes, and also, of course, to any such laws as might thereafter become effective: (cf. Davis v. Carbon County, 369 Pa. 322, 330 , 85 A. 2d 862, 867 ).” This is in accord with our decision in Carrow v. Philadelphia, 371 Pa. 255 , 89 A. 2d 496 .
Article XIY, §1, of the Constitution also includes as “county officers”, “prothonotaries and registers of wills.” However, the Register of Wills of Philadelphia County and the Prothonotary in Philadelphia are separately and specifieally provided for under Article Y of the Constitution entitled “The Judiciary”. Section 7 of Article V provides: “For Philadelphia there shall be one prothonotary’s office, and one prothonotary for all said courts, to be appointed by the judges of said courts, and to hold office for three years, subject to removal by a majority of the said judges ; the said prothonotary shall appoint such assistants as may be necessary and authorized by said courts . .
Section 22 of Article Y of the Constitution deals specifically with a register of wills in counties which *384 have a separate Orphans’ Court, including of course Philadelphia County. It provides (inter alia) : “In any county in which a separate orphans’ court shall be established, the register of wills shall be clerk of such court and subject to its directions, in all matters pertaining to his office; he may appoint assistant clerks, but only with the consent and approval of said court.”
By the Act of June 20, 1919, * the Register of Wills is appointed statutory agent of the Commonwealth for the collection of inheritance taxes and the allowance of debts and proper deductions. Under the Register of Wills Act of June 28, 1951, ** exclusive probate jurisdiction is given to the Register of Wills. Even before the Act of 1951, a Register of Wills was held by this Court to be a Judge and his decisions in probate matters are judicial decisions which are unimpeachable except on appeal: Sebik’s Estate, 300 Pa. 45 , 150 A 101; West v. Young, 332 Pa. 248 , 2 A. 2d 745 ; Szmahl’s Estate, 335 Pa. 89 , 6 A. 2d 267 ; McNichol’s Estate, 282 Pa. 187 , 127 A. 461 .
It is clear from the foregoing provisions of the Constitution and the Acts of Assembly and the decisions of this Court that the Register of Wills is a quasi-judicial officer acting in the triple capacity of Clerk of the Orphans’ Court of Philadelphia County, Probate Judge, and Agent of the Commonwealth of Pennsylvania for the collection of inheritance taxes. No municipal or county functions are performed by him in any of these offices.
The City-County Consolidation Amendment makes specific reference to Article III and Article XY of the Constitution, but does not refer to or expressly or impliedly amend the Judiciary Article of the Constitution; nor does the Charter Act refer to or mention the Regis *385 ter of Wills or the Prothonotary or expressly or impliedly amend the aforesaid Acts.
The law is clearly settled that repeal by implication is not favored and will prevail only when the intent to repeal is clear: Newton Estate, 354 Pa. 146 , 47 A. 2d 229 ; Com. v. Provident Trust Co., 287 Pa. 251 , 134 A. 377 . No such intent is apparent; on the contrary the opposite intent appears.
It is well established that where ambiguity or conflict exists between a specific constitutional provision (or a specific provision of a statute) which is unquestionably applicable to a particular person or agency and certain general provision which would apply if it were not for such ambiguity or conflict, the specific provision will prevail: Waits’ Estate, 336 Pa. 151, 154 , 7 A. 2d 329 ; Philadelphia v. Com., 270 Pa. 353, 358 , 113 A. 661 ; Buckley v. Holmes, 259 Pa. 176, 188 , 102 A. 497 ; Com. v. Kline, 294 Pa. 562, 567 , 144 A. 750 ; Endlich, Interpretation of Statutes, §216.
It is clear, therefore, (a) that the City-County Consolidation Amendment, viz., §8, Article XIV of the Constitution does not expressly or by implication repeal §7 or §22 of Article Y of the Constitution, and (b) that these provisions of Article Y which deal specifically with the Register of Wills in Philadelphia and with the Prothonotary in Philadelphia prevail over the general provisions of Article XIY. For these reasons I fully agree with the majority that neither of these offices fall within or are governed by the Amendment or by the Charter. *
I disagree, however, with the majority in its decision with respect to the Board of Revision of Taxes and the Registration Commission. Their decision not only violates well-established principles of law, but also is contrary to all the prior decisions of this Court and to the *386 First Class City Home Rule Act of April 21, 1949 (supra). In my judgment, with all due respect to the majority, the majority opinion is nothing but judicial legislation ; delightful and beneficial as it ofttimes would be, we have no right to take off our Judicial robes and put on the cloak of a statesman.
I believe that the Board of Revision of Taxes and the Registration Commission should be county or city offices and that the members of the Board should not be appointed by the Judges of the Courts of Common Pleas or by any Court; but what I believe would be wisest and best is absolutely immaterial. The question is: What does the Constitution of Pennsylvania, (including the City-County Consolidation Amendment) the First Class City Home Rule Act of April 21, 1949, and the Philadelphia Home Rule Charter provide with respect to these offices?
The Board of Revision of Taxes was created in 1865. When the present Constitution of 1874 was adopted it clearly denominated and specifically enumerated in Article XIV, §1, who the County officers should consist of: “County officers shall consist of sheriffs . . . and such others as may from time to time be established by law.” No others have ever been established by law. The omission of the Board of Revision of Taxes from this detailed list of County officers was a clear manifestation that the Board was not considered or intended to be a County office (unless established as such by future legislation). “ ‘The expression of one thing in the constitution, is necessarily the exclusion of things not expressed’ ”: Commonwealth ex rel. Maurer v. Witkin, 344 Pa. 191, 196 , 25 A. 2d 317 .
Moreover, §2 of Article XIV of the Constitution provides that “County officers shall be elected . . County officers, namely, Sheriff, Recorder of Deeds, Coroner, County Commissioners and the Clerk of the *387 Courts, are elected by the people for a term of 4 years. The members of the Board of Revision of Taxes are appointed by the Board of Judges of the Courts of Common Pleas of Philadelphia for a term of 6 years. This is a further indication, if any additional demonstration is needed, that the members of the Board of Revision of Taxes were not understood or intended to be County officers and the office they hold is not a County office: Porter v. Shields, 200 Pa. 241 , 49 A. 785 ; Com. v. Collier, 213 Pa. 138 , 62 A. 567 .
The City-County Consolidation Amendment to the Constitution and the Philadelphia Home Rule Charter were adopted in 1951. The Amendment abolished county offices — not state offices or city offices or any other offices except county offices. The Amendment and the Charter deal solely with county offices (or officers) ; neither mentions the Board of Revision of Taxes or the Registration Commission or any state agency! It is indisputable that the basic intent of the framers of City-County Consolidation and of the new City Charter was (1) to consolidate the governmental functions of the City and County of Philadelphia; (2) to abolish county offices; and (3) as soon as possible to merge them into an improved consolidated city government. The framers of the City-County Consolidation Amendment, as well as the members of the Legislature which debated and passed it, the framers of the Charter, and everyone having any connection with the proposed Amendment or Charter knew what offices had and what offices had not been denominated and specifically enumerated as County offices under the Constitution of Pennsylvania. Therefore, when the Amendment abolished County offices there was nothing to which that could possibly refer except to the offices which had been so clearly denominated as such in and by the Constitution.'
Moreover, the framers of the Amendment and the Charter, and the members of the legislature knew that *388 the Supreme Court of Pennsylvania had repeatedly said that the Board of Revision of Taxes are not “Oounty” officers. In 1905, in Com. v. Cottier, 213 Pa. 138, 141 , 62 A. 567 , this Court said: “Being clearly of the opinion that the members of the board [of revision of taxes] are not county officers, . . .”
In 1911, in Selig v. Philadelphia, 232 Pa. 309 , 81 A. 308 , this Court, in adopting Judge Sulzberger's opinion, said: “By no stretch of imagination can it be conceived that the city has any power over the assessors or the board of revision.” In 19S7, in Suermann v. Hadley, 327 Pa. 190 , 193 A. 645 , this Court again rejected a taxpayer’s contention that the Board of Revision of Taxes were county officers and said: “Appellees contend that the members of the Board of Revision of Taxes are county officers .... This question was directly passed upon in Commonwealth v. Collier, 213 Pa. 138 .” After the adoption of the City-County Consolidation Amendment and the Charter, to wit, on January 15,1952, Selig v. Philadelphia 232 Pa., supra, was again approved in Clark v. Meade, 369 Pa. 409 , 85 A. 2d 169 . In that decision this Court again recognized that the Board of Revision of Taxes is a State agency whose powers could not be interfered with by a municipality, but permitted its records to be examined by the City Controller for the limited purpose therein set forth, viz., to determine the amount of money which had been embezzled and thus learn the true financial condition of the City and County.
Even if these cases could be limited, refined and technically distinguished, as the majority opinion attempts to do, four irrefragable facts constitute barriers to the majority, as large and' impassable as' the Himalayan Mountains: (a)- The Constitution clearly declares who are County' officers and-' excludes' the Board of Revision of Taxes; (b) The Constitution requires Coun *389 ty officers to be elected; the Board of Revision of Taxes is appointed; (c) To every layman and legislator concerned with framing, passing upon, interpreting or adopting the Amendment or the Charter, and to nearly everyone, the language of the aforesaid cases — “We are clearly of the opinion that the members of the board [of revision of taxes] are not county officers” — is plain, strong and unambiguous; (d) The Home Rule Act of 1949 prohibits their regulation or control by the Charter or by ordinance. We shall discuss the last two barriers more fully later on in the opinion.
In the light of the provisions of the Constitution and the prior decisions of this Court for nearly half a century, it is absolutely clear that the Board of Revision of Taxes is not and never was a County office.
The Registration Commission, whose members are appointed by the Governor of Pennsylvania for a term of 4 years, was created and in existence prior to the City-County Consolidation Amendment and the Charter and what is said in this opinion with reference to the Board of Revision of Taxes is, in principle, equally applicable to the Registration Commission.
Although it is unnecessary to pile Pelion upon Ossa, the Amendment and the Charter must be considered and interpreted in the light of the intentions of the framers thereof and of the legislature and the voters which in this class of cases are entitled to great weight: Cohens v. Virginia, 6 Wheaton 264, 416-420 ; Cf. Peoples Bridge Co. v. Schroyer, 355 Pa. 599, 605 , 50 A. 2d 499 ; American Stores Co. v. Boardman, 336 Pa. 36, 42 , 6 A. 2d 826 ; Lighton v. Abington Township, 336 Pa. 345, 354 , 9 A. 2d 609 . What were their intentions and how can we discover them? It is clear from the public statements, the public reports and-the actions of the framers of the Amendment and of the Charter, and of their advocates, and of every non-political body or agency *390 interested in good government in Philadelphia, and of the press, and of the leaders of both political parties that they, and hence the voters, believed that the Board of Revision of Taxes and the Registration Commission were not intended to and did not fall within the City Charter, and that further legislation with respect to these offices would be necessary if they, like County offices, were to be brought under the Charter.
The language of Chief Justice Marshall in Cohens v. Virginia, 6 Wheaton 264, 416-420 (which involved the constitutionality of a statute and of a treaty and the jurisdiction of the Supreme Court of the United States) is particularly appropriate: “The framers of the constitution would naturally examine the state of things existing at the time .... All acknowledge that they were convened for the purpose of strengthening the confederation by enlarging the powers of the government, . . . . Great weight has always been attached, and very rightly attached, to contemporaneous exposition . . . . The opinion of the Federalist has always been considered as a great authority .... These essays having been published while the constitution, was before the nation for adoption or rejection, and having been written in answer to objections . . . are entitled to the more consideration . . . the Federalist says. . . [Marshall then quotes what the Federalist says].
“A contemporaneous exposition of the constitution, . . . is the judiciary act itself. We know that in the Congress which passed that act were many eminent members of the Convention which formed the constitution. Not a single individual, so far as is known, supposed that part of the act which gives the Supreme Court appellate jurisdiction over the judgments of the State Courts' in the cases therein specified, to be unauthorized by the constitution. . . .
“This concurrence- Of Statesmen, of legislators, and of judges, in the same construction of the constitution, *391 may justly inspire some confidence in that construction.”
In the light of all these facts and all the foregoing authorities, how is it possible to say (a) that the framers of the Amendment and the Charter or the legislature or the voters intended the Charter to embrace the Board of Revision of Taxes or the Registration Commission, or (b) that such a construction could be constitutionally sustained?
Moreover, there is an additional insuperable barrier to the inclusion within the Charter of the Board of Revision of Taxes or the Registration Commission. “Municipalities are not sovereigns; they have no original or fundamental power of legislation; they have the right and power to enact only those ordinances which are authorized by [the Constitution or by] an act of the legislature: Kline v. Harrisburg, 362 Pa. 438 , 68 A. 2d 182 ; Murray v. Phila., 364 Pa. 151 , 71 A. 2d 280”: Genkinger v. New Castle, 368 Pa. 547 , 549 84 A. 2d 203 . Article XY, §1 of the Constitution provides: “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 sueh restrictions, limitations, and regulations, as may be imposed by the Legislature . . .”.
The First Class City Home Rule Act in §17, authorizes a city to frame and adopt a charter and to exercise all powers and authority of local self-government with complete powers of legislation and administration in relation to its municipal functions, subject, however, to the limitations hereinafter prescribed in §18: “. . . Notwithstanding the grant of powers contained in this act, no city shall exercise powers contrary to, or in limitation or enlargement of, powers granted by acts of the General Assembly which are ... (7) Providing for the personal registration of electors; ... (9) Providing *392 for the assessment of real or personal property and persons for taxation purposes.” The meaning and intent of this enabling Act was to prohibit a First Class City from adopting a charter or enacting legislation with respect to the powers, duties, functions, or control of the Registration Commission or of the Board of Revision of Taxes. However, this situation is not irremediable. The Legislature, if it desires, can enact valid legislation to bring either or both of these offices within the Charter, or otherwise subject them to such Civil Service and political activities provisions as the Legislature may desire.
To summarize: (1) The City-County Consolidation Amendment of November 6, 1951, and the Philadelphia Home Rule Charter apply to and embrace the officers and offices of Sheriff, Recorder of Deeds, Coroner, County Commissioners and Clerk of Courts in Philadelphia, and these former County officers have now become City officers and possess all the powers, duties and functions of City officers and they and their employees are subject to and governed by the Charter; (2) Neither the Register of Wills nor the Prothonotary nor the Board of . Revision of Taxes nor the Registration Commission nor any of their employees are affected or governed by the City-County Consolidation Amendment, nor do they come within the scope of.the Civil Service provisions, (Article VII, §§7-100, et seq., and Chapter A-l of the Appendix Section A-104), or the Political Activities provisions, (Article X, §§10-107) of the Philadelphia Home Rule Charter, nor under; presently existing law can they be'regulaied or controlled by City Councils. ■
•However);a subsidiary question has" arisen in.this case; i.e;.,' whether -§-§8-103 and 8-104; of--Article- VIII of the Charter may be applicable-to the Board.of.-Revision of Taxes and-the. Registration Commission.-. These sections provide'that every- officer or department- and-board *393 and commission of the City and every other agency of any hind desiring appropriations from the Council or receiving an appropriation from the City Treasury shall, for budgetary purposes, furnish a list of officers and employees and certain information to specified City officers. These provisions are intended to and obviously will aid the City in its efforts to accurately determine its budget requirements. There is nothing in the record to show that this provision is unreasonable or that it is an invasion of or an interference with the powers, functions or discretion of the Board of Revision of Taxes or of the Registration Commission, each of which receives an appropriation from the City Treasury. We therefore would sustain, under the authority of Clark v. Meade, 369 Pa. supra, its validity and applicability to such agencies. Cf. also Leahey v. Farrell, 362 Pa. 52 , 66 A. 2d 577 .
Italics throughout, ours.
P. L. 521, Article 2, §21; 72 PS 2381.
P. L. 638, 20 PS 1840-101.
Except to the limited extent hereinafter discussed.