Commonwealth v. Oellers , 140 Pa. 457 ( 1891 )

Dissenting,

Mr. Justice Williams:

There is no public question involved in this case. It is a struggle between rival appointees for a few months’ possession of an office that is to be filled by the voters of Philadelphia at the next election. No personal objection is made to either. On the other hand, it is freely conceded that both are men of ability, experience, and personal integrity; so that, whichever of them may succeed, the funds of the city and the interests of the taxpayers will be secure. This case has, nevertheless, a remarkable history. The suggestion of the attorney general was filed in the court below on the second day of this present month. On the same day, a writ of quo warranto issued and was served. On the same day, a demurrer was filed, overruled and judgment entered. On the same day, a certiorari issued from this court, and the record was removed. Paper-books were prepared on the third. On the fourth, in the last hours of the session for the Middle District, the case was fully heard. Now, on the' twelfth, this court is re-convened in adjourned session for the-sole purpose of entering a final judgment. Any other case on the calendar has an equal claim to consideration and to prompt decision.

The question is raised upon the following facts: By the consolidation act of 1854, the limits of the city of Philadelphia were extended so as to include the entire county. In the merger and consolidation of the several local governments previously existing, the office of county treasurer was, among others, abolished, and most of its duties transferred to the city treasurer. Since 1854, the office of county treasurer has not been restored by any distinct legislative enactment; nor has that of city treasurer been abolished’, or its duties diminished or modified. No person has been elected to an office styled county treasurer, in the county of Philadelphia, for nearly forty years. A person has been regularly elected and commissioned as city treasurer during ah that time. The last person so elected and commissioned was John Bardsley. He gave bonds as city treasurer, and entered upon the duties of the office, which had been very clearly and distinctly defined by the recent legislation ■ known as the Bullitt Bill, or new city charter. On the thirtieth of May last he sent his resignation to the city government.^* It was accepted by the 'councils, and a person was appointed to fill the vacancy so made, who has qualified and entered upon the duties of the office. The governor has also appointed a person to the same vacancy, claiming that the office is not that of city treasurer, but that of county treasurer.

If the office is a city office, then it is admitted that the power to appoint resides in the councils. Our question then is, what kind of a treasuryship did John Bardsley hold ? Hid he hold the office of city treasurer, which is unquestionably an existing office and to which he was elected and commissioned, or did he hold the office of county treasurer, which was abolished in 1854 and to which he was neither elected nor commissioned? The latter branch of the alternative is affirmed, and the position rests on two considerations :

1. The constitution in enumerating county officers names a county treasurer as one.

2. The act of 1876 declares that in cities of the first class, the office of city treasurer shall for certain purposes “ be regarded as ” a county officer.

As to the first of these, it is only necessary to say that, at the adoption of the constitution, the office of county treasurer in Philadelphia had been abolished. If, as we have repeatedly held is not the case, such constitutional provisions are self-enforcing, it is nevertheless true that in this city this one has not been obeyed by the election of such an officer, and I cannot understand by what modification of the cy pres doctrine the state can seize and appropriate that city office whose functions most nearly resemble those of the vacant county office.

As to the second, the answer seems to me equally plain. The act of 1876 relates to existing county officers in large counties having a population of one hundred and fifty thousand or more. Its title declares its object and scope fully. It is “ to carry into effect § 5 of article XIV. of the constitution, relative to salaries of county officers.” To do this, it requires such officers to pay over the fees collected by them to the state or county, as the case may be, and provides, in lieu thereof, a fixed salary as compensation for their services. That of county treasurer in the counties affected is fixed at ten thousand dollars per annum. But there was one county in the state whose boundaries were at the same time the boundaries of a city including exactly the same territory. In this county the legislature knew that there was no county treasurer, but that the same functions were exercised by the city treasurer. They did not intend to leave the old system of fees to survive in the city whose lines were co-incident with those of the county, any more than it would have survived in the county. Accordingly, the seventeenth section of the act of 1876 makes a special provision for cities whose lines include an entire county, and declares that in such cities “ all the officers known therein as city treasurer, city controller, city commissioners, shall severally be regarded as county officers,” and as such have the same salary, and pay over fees collected by them, in the same manner “ as if they had been elected or appointed as county officers and had been designated as such.” In other words, the city officers enumerated shall, for the purpose of fixing Their salaries and requiring them to pay over fees collected by them, be regarded as county officers, so as to be included in the operation of the act as fully as if they “ had been elected ” and “ been designated ” as county officers. This does not profess to change the character, powers, or designation of those officers, or the manner of their election or appointment. It changes only their compensation, and the manner in which it is received by them. This it does by extending the law relating to county officers so as to include them in the same manner as if they had been elected and designated as county officers, instead of having been, as the fact was, elected and designated as city officers. The title of the act gives no hint of any other purpose., If its provisions would, by any fair interpretation, abolish the office of city treasurer, or revive that of county treasurer, or change the mode of election or appointment of the city treasurer, it would be to that extent clearly unconstitutional, because no such purpose is expressed by or included in the title. If John Bardsley held a county office he holds it still. He has resigned only the treasurership of the city, and this he has surrendered to the only body having power to fill the vacancy.

My own conclusions may be formulated thus:

1. The office of city treasurer is an existing office in the city of Philadelphia. Its existence is shown and its powers are defined by several acts of assembly, beginning with the consolidation act and including the new charter of 1885.

2. The office of county treasurer is not an existing office in Philadelphia county. It was abolished in 1854, and has never been restored or treated as surviving for any purpose whatever.

3. Both these propositions are assumed by the act of 1876, and are the basis on which its provisions rest. It treats the city treasurer for one purpose only as though he was a county officer, and distinctly recognizes the fact that for other purposes he is not one.

4. The vacancy occasioned by the resignation of the office of city treasurer by John Bardsley is properly filled by the appointment of the respondent by the city councils.

For these reasons, I would affirm the judgment of the court below. In so doing, the authority of Taggart v. Commonwealth, 102 Pa. 354, is not disturbed. In that case, there was no specific provision in the act of 1854 for filling a vacancy in the office of city controller, and the case is therefore distinguishable from this.

* Bardsley’s resignation, was transmitted on May 21st, to take effect on May 30th.; it was accepted by councils on May 28tb.