“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 and Dissenting in Part by
Mr. Justice Musmanno:
I go along with the majority opinion that the offices of Register of Wills and Prothonotary of Philadelphia do not fall within the provisions of the City-County Consolidation Amendment or the Charter. I go further on the journey with Justice Bell that the office of Board of Revision of Taxes and the offices of Registration Commission are not within the application of the Amendment and Charter. For the rest of the journey I travel alone convinced beyond the peradventure of a legal doubt that until the Legislature of the Commonwealth of Pennsylvania takes further action under the authority of the City-County Consolidation Amendment, the county officers and employes, (which the majority of this court have now given the. appellation of. “city” officers and employes) are entitled and required to *394 continue the performance of their county functions ■without interference from municipal government and without subjection to the provisions of the municipality’s charter adopted prior to the passage of the amendment.
The most vital proposition in this entire discussion, it seems to me, is the unbudgeable fact that Section 7 of the City-County Consolidation Amendment categorically declares that: “Upon 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 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, but such officers serving when this amendment becomes effective shall be permitted to complete their terms.” I repeat and emphasize: The “county officers . . . until the General Assembly shall otherwise provide, shall continue to perform their duties and be elected■, appointed, compensated and organized” in accordance with the “Constitution and the loaos of the Commonwealth in effect at the time this amendment becomes effective
How could it possibly be stated any more clearly that the county officers do not change their nature simply because they are now baptized city officers?
To use a military analogy: When a division of infantry is assigned to an army corps it comes under the direction of the army corps commander but the basic duties of the infantryman always remains the same, and the division still remains under the control of the army commandér, and is still an integral part of the Department of the Army. The county officers of Philadelphia have been assigned to the municipality of Philadelphia but nothing short of an act of the State itself can change the nature of their duties and responsibilities.
*395 The immediate Utopia of one smoothly working governmental machine covering every possible function within the geographical confines of Philadelphia is not only a mirage of impractability, given the history of the county and city governments in Philadelphia, but there is a grave question as to whether that is what the people voted for.
Mr. Justice Bell in his excellent opinion quotes from the juridicially immortal Chief Justice Marshall who said: “Great weight has always been attached, and very rightly attached, to contemporaneous exposition.” And with that inducement I am persuaded to reproduce several quotations in support of the position I am advancing in this Opinion. The Bureau of Municipal Research stated on January 8,1951, in a pamphlet entitled “Citizens’ Business”:
“This does not mean that city-county consolidation will be complete the day after the amendment is finally approved.”
“The amendment does not consolidate. It enables the Legislature to consolidate.”
This same periodical said on January 22, 1951: “It has been widely believed that upon adoption of the consolidation amendment, Philadelphia could immediately extend its city charter to cover the county functions. Some have believed that if the new charter provided in advance for the county functions, the county provisions would automatically go into effect with the adoption of the amendment. Neither of these views seems correct. The plain wording of the amendment is that no changes are to take place in the county functions until the Legislature makes them or authorizes them." *
Clarence Shenton, Esquire, expert in municipal law, formerly Director of the Bureau of Municipal Research *396 and presently on the editorial staff of the Philadelphia Bulletin, wrote in that newspaper under date of September 18, 1951: “Applying the home rule provision of the Constitution to the county we would have no grant of home rule to the county, but only a power vested in the Legislature to grant such home rule, subject to such limitations as it might choose to impose.
“The Legislature has not passed any law expressing any intent to give home rule powers to the county ”
The “Pennsylvania for Consolidation” was a bi-partisan organization which included many of the leading public-spirited citizens of the State, as witness the names of Governor John S. Fine, former United States Senator Francis J. Myers, Mayor David Lawrence, Hon. Joseph S. Clark, Jr., (present mayor of Philadelphia,) former Judge Nochem Winnet, Hon. Richardson Dilworth (present District Attorney of Philadelphia), Hon. James Finnegan, present President of Philadelphia City Council, Albert M. Greenfield, former State Attorney General William A. Schnader, former State Senator Harry Shapiro, Robert T. McCracken, Esq., (who actually drafted the consolidation amendment), Rev. Daniel A. Poling, Hon. John Morgan Davis (now Judge of Court of Common Pleas), and others. A pamphlet published by this distinguished organization carried this impressive declaration: “(Consolidation) is not a final step. The Amendment simply makes the present county officers city officers. Fitting them together is a later job for the state legislature or a charter amendment, or both.”
The Pennsylvania Economy League, another noted civic organization, statedif .. . adopted, all the county officers would become city officers and would continue to be elected as they are at present until the Legislature provides otherwise. It is clear, therefore, that before any county offices can be abolished or their *397 duties consolidated . . . there must be action by the Legislature either to decide the issue, or permit the voters of Phila. under their home rule powers to make the decision.” (Bulletin of Oct. 15, 1951. No. 4).
A series of articles printed in the Philadelphia Bulletin for the information and guidance of the voting population before they voted on the consolidation amendment, carried these significant statements: “. . . The Amendment would make city officers out of all county officers and would permit the Legislature to decide how city officers performing county functions should be chosen.”
“. . . the county functions will be performed by city officers, and the Legislature will have the right to say which city officers will perform them and how they are to be chosen . . . There are words in the amendment which strongly indicate that the county officers who will become city officers will continue exactly as they are, except for the changed titles, until the Legislature maíces other arrangements .”
The present Chief Justice in the case of Hartness v. Allegheny County, 349 Pa. 248, 251 , pointed out that counties “are political subdivisions of the State, not municipal corporations.”
The word “municipal” derives from the Latin “municipalis” which in Roman law applied to a city enjoying the right of self government. A county, on the other hand, is a political subdivision or a subordinate branch of the State government.
The consolidation amendment provides that “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.” Paragraph (2) clearly shows that that law is to be provided by the State Legislature for it removes the con *398 stitutional restriction which forbids the legislature from enacting local and special laws and thus opens the way for special legislation in the premises. Thus supplemental legislation is obviously necessary to carry out the policy or principle sought to be effectuated by the amendment. The amendment itself did not consolidate, but enabled the legislature to effectuate the consolidation.
It cannot be successfully contended that the county functions have now, by virtue of the City-County Consolidation amendment, become municipal functions and therefore are encompassed in the original grant of power under the Home Rule Act. At the time the latter act was passed, the Legislature did not have the power to authorize cities of the first class to provide for “county home rule”. But even if we assume, for the sake of argument, that the Legislature could grant to the City of Philadelphia home rule on the subject of county functions before it constitutionally had the power to do so, it must first clearly appear that the Legislature did so delegate such power.
The powers of a municipality are to be strictly construed: Valley Deposit and Trust Company of Belle Vernon, 311 Pa. 495; Wentz v. Philadelphia, 301 Pa. 261; American Aniline Products, Inc. v. Lock Haven, 288 Pa. 420 .
An amalgamation of county and municipal functions in Philadelphia may eventually become a reality, but the coalescing is by no means a facile procedure, and certainly not one that can be achieved through judicial fiat. As the Courts of Common Pleas of the Commonwealth of Pennsylvania can never become municipal entities, so also county offices cannot come under the jurisdiction of a municipal executive and a municipal council without specific constitutional and statutory authority to that effect.
*399 If the constitutional requirement has already been met, it is noon-day clear that the needed legislation to effect so drastic a change in our basic American plan of government has not yet been approved by the representatives of the people in General Assembly.
Judge Gkoyek Ladner in a learned and brilliant brief filed in this ease has traced from the inception the constitutional and statutory provisions which apply to the facts before us. Only limitations of space would prevent me from incorporating large portions of his brief into this Opinion, but I earnestly recommend it to those considering further legislation on this subject.
The parent Act of the Charter is the First Class City Home Rule Act of April 21, 1949, P.L. 665, Section 17 of which reads, in part: (3421.17) “Subject to the limitations hereinafter prescribed, the city taking advantage of this act and framing and adopting or amending its charter thereunder 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 the power and authority to prescribe the elective city officers, who shall be nominated and elected . . . in accordance with . . . the Pennsylvania Election Code. . . . The charter of any city adopted or amended in accordance with this act may provide for a form or system of municipal government and for the exercise of any and all powers relating to its municipal functions, not inconsistent with the Constitution of the United States or of this Commonwealth, to the full extent that the General Assembly may legislate in reference thereto as to cities of the first class. .
It will be observed from the above that no power is' delegated to the City to'legislate or provide for other than municipal functions and for municipal officers. Then, Section 18 of that Act specifically prohibits the *400 City from exercising power “contrary to, or in limitation or enlargement of, powers granted by acts of the General Assembly, which are ... (b) Applicable in every part of the Commonwealth, (c) Applicable to all the cities of the Commonwealth.”
As counties are subdivisions of the Commonwealth, the prohibitions here against the City exercising control over county offices is obvious.
Of course, through the process of constitutional amendment the City may be assigned any governmental function the people see fit, even over county offices. But it cannot be successfully argued that the constitutional amendment approved November 6,1951, gave this power to the Charter. The Charter was adopted before the passage of the amendment. The constitutional amendment cannot, under any circumstances, work retroactively!
Although the constitutional amendment abolishes county offices it does not abolish the functions of county officers. It figuratively moves the county officers into a building owned by the municipal government, but it does not make the officers subject to the orders of the municipal landlord because, as already indicated, Section 7 of the Consolidation Amendment states as plainly as anything can be stated that “until the General Assembly shall otherwise provide, [the county officers] shall continue to perform their duties, etc.”
The majority opinion assumes that the amalgamation it states has already taken place, will effect sweeping changes which will bring about a Swiss watch tidiness and orderliness in governmental Philadelphia. It is my considered judgment that until the Legislature, or perhaps ■ even the- -City Council, passes further imperatively needed legislation to implement the consolidation amendment, confusion will run rampant in all the former county, offices,; a confusion that could ad *401 versely affect city offices as well. The majority opinion, for instance, speaks of the wisdom of having one law department for all the city departments, but, as already indicated, the duties of the former county offices have not yet been absorbed into the city government. 1 do not see the wisdom of having one “unified interpretation” of legal problems arising in different offices, under different circumstances and from different facts. Legal brains are not to be pooled in one reservoir of stultifying uniformity. Each county office has its own problems and they can better be solved by the solicitor permanently located there, (because of his experience, special study and continuing application,) than by one who from an ivory tower of remote control will dispense standardized advice to all departments, all offices, and on all situations.
Furthermore, how is this super legal bureau to be established, how will the personnel be selected, how will the work be divided, will there be special training to prepare assistants for the varying problems which will come up in the Coroner’s office, the Commissioners’ office, the Registration Commission office, and so on? If the majority opinion becomes effective without intervening legislation to work out the details of this drastic, elephantine, governmental metamorphosis, I do not see how Chaos can be prevented from knocking at the door of every former county office in Philadelphia.
The purpose of the constitutional amendment was to free the legislature from the shackles that the Constitution imposed and thus make possible the accomplishment of this much desired and needed governmental reform. But until the legislature acts, — following reports and studies on the present situation and what yet has to be done before the ideal blending of county and city ean become a. reality, — the county functions cannot constitutionally (and should not) be interfered *402 with. The harassment of county officers in this embryonic phase of consolidation can only cause chaos, distrust, and quarreling — all so entirely unnecessary.
Changes of this magnitude require time. Rome was not made in a day. A precipitate attempt to throw county and city together without the necessary preparation can undo -the wonderful work accomplished so far by the public spirited and patriotic citizens who initiated the plan to lift Philadelphia to the high position she deserves in the sisterhood of the great cities of the world.
The foundation for Great Philadelphia has been laid. The pillars must be carefully placed so that no Samsoiiian force in the years to come can. pull them down, creating greater confusion than the original one the consolidation plan was intended to correct.
Footnote: Italics throughout are mine.