Commonwealth v. Oellers

*471Dissenting,

Mr. Justice Mitchell:

The authority of the governor to fill a vacancy in the office of treasurer of Philadelphia rests solely upon the act of May 15, 1874, P. L. 205. If not found therein, it is admitted that it does not exist. That act provides for an appointment by the governor in case of a vacancy in any office created by the constitution or laws of the commonwealth, “ where provision is not already made by said constitution and laws to fill said vacancy.” Hence, if there is any existing provision for filling the vacancy, the governor obtains no power to do so by the act of 1874.

The office of city treasurer of Philadelphia, as it has in substance existed since 1854, was created by the consolidation act of February 2,1854, P. L. 21. That act prescribes the mode of his election, his bond and oath of office, his duties, powers and liabilities. The office as it exists to-day is defined and regulated by the city charter under the act of June 1, 1885, P. L. 37, popularly known as the Bullitt Bill. Under this act the office is a department of the city government of which the city treasurer is the head, and the act provides that “ he shall be elected and give security,” and his duties shall remain “ as now provided by law; ” that is, as already seen, by the act of 1854. It is not claimed by any one that the constitution, or any other statute than those cited, makes any express provision for the definition, limitation or regulation of the office. Turning, then, to the act of 1854, we find that the case of a vacancy is fully, exactly and specifically provided for in § 10, by which “ any vacancy in said office shall be filled by the city councils, by viva-voce vote in joint meeting.” There is no doubt or ambiguity about this provision, nor is there any pretence that any subsequent act has, in express terms, repealed or supplied it. Why, then, is it not a sufficient “ provision already made ” by the law, to exclude the only power given to the governor by the act of 1874?

It is said that the office has been made a county office by the constitution, § 1 of article XIV., which declares that “ county officers shall consist of sheriffs, .... treasurers,” etc. It is argued by appellee that this clause worked no change in the position of the city treasurer, inasmuch as there were, in all the counties except Philadelphia, treasurers who unquestionably *472were county officers to whom this provision would apply, and the constitution, while aiming at an unbending cast-iron uniformity in many things in which the people had hitherto been free to consult their own diversities of situation and interest, nevertheless did not intend to affect existing local and special laws, except in cases expressly named. And such has been the uniform construction by this court. If the present question were open I should deem this the sound view, but I am constrained by the case of Taggart v. Commonwealth, 102 Pa. 354, to consider the question closed. By that decision, from the authority of which I do not desire in any way to derogate, though I think it was wrongly decided, it was settled that the section of the constitution cited made the officers named therein county officers, though they retained their titles of city controller, city treasurer, etc. But this of itself does not advance the argument a single step. The change of position from a city to a county office is a mere change of schedule, so to speak; a change from one class to another, not necessarily involving any change in the office itself. To determine the effect of the change in this respect, we must look at matters of substance, at the mode of election, the powers and the duties of the officer, by whatever name he may be called. And when we so look we find nothing. By the wording of the constitution the electtion for a county officer was put in November, while that for a‘ city officer is in February. But the constituency which elects, and the functions of the officer when elected, remain the same. As already shown, these were and are, before the constitution of 1874 and since, established, defined and regulated by the acts of 1854 and 1885. The constitution did not repeal the act of 1854, nor in any way affect § 10, except by making the treasurer elected under it a county instead of a city officer, a change which in no wise affected any matter of substance in regard to him or his office. The distinction between the county of Philadelphia and the city of Philadelphia is, from any point of view, of the most technical and shadowy kind, and, with regard to this particular office, it has no existence except in theory. The county has no taxes, no taxpayers, no treasury and no treasurer, which are not the taxes, taxpayers, treasury and treasurer of the city. It suited the doctrinaire tendency of the constitutional convention to make the office one of the county *473list for tlio sake of nominal uniformity, but the change in no manner affected the practical substance of the office or the officer, and so clear has this been to all eyes, that no change has been made even in his title. He is still, under the constitution as under the act of 1854, legally known as the city treasurer, and under that title, county officer though he be, that act prescribes the scope of his office, its powers, duties and liabilities, and expressly and specifically the mode in which a vacancy shall be filled. He has been transferred from one class to another, but in all other respects he and his office are unchanged.

A strenuous effort was made on behalf of appellant to get away from this conclusion by harping on the forty-sixth section of the same act, and the decision of this court in Taggart v. Commonwealth, supra. But that section has no application to this case. The act provided for the election, duties, etc., of seven principal executive officers of the city, viz., mayor, marshal of police, city treasurer, receiver of taxes, controller, commissioners, and solicitor. Section 7 provides, in case of a vacancy in the office of mayor, that councils shall forthwith, in joint meeting, elect viva voce a qualified person to serve, etc. Section 10, as already discussed, provides expressly for filling a vacancy in the office of treasurer. No specific provision is made as to the other five principal officers; they are lumped together as elective officers of the city in § 46, and the method of filling the vacancies is not the same as in the case of the treasurer, though also by the councils. This part of the section, in its very terms, is excepted from application “ where other provision is made for filling the vacancy,” and has no relevancy to the mayor or the treasurer. It might have been repealed at any time without in any way affecting the mode of filling a vacancy in either of those offices. Herein is the essentia] and very obvious distinction between the present case and Taggart v. Commonwealth.

In that case the office in question was the city controllership, as to which there was no specific provision for a vacancy. It could be filled by councils only as a city office, under the general terms of § 46, and hence that case, by a very narrow construction, which disregarded the substance of the law and stuck in the very outside of the bark, hold that when it theoretically ceased to be a city office it was taken out of the terms of the *474act of 1854, and, there being no other law regulating the vacancy, the appointment went to the Governor under the act of 1874. Section 46 continued in force notwithstanding the constitution, and its application to the case of an admitted city office is not disputed. All that Taggart’s case decided was, that the city controller was not within its terms. But, as to the citj'- treasurer, § 10 of the act of 1854, also still in force, provides specifically for the filling of a vacancy. The act of 1874, therefore, by its own terms, has no application.

There remains only to be noticed the act of March 31, 1876, P. L. 13, which, it is argued, makes the city treasurer a county officer. This may be very briefly dismissed. First, I have endeavored to show that the mere nominal change from a city to a county office, while the whole scope and functions of the office continue unchanged under the old law, does not in any degree abrogate the specific provision of that law for filling a vacancy. If this is so, in the case of a change by the clause of the constitution, a fortiori it is so in the case of a statute. But secondly, the act does not make any such change. The title and the body of it are alike limited to the subject of fees and salary under § 5 of article XIY. of the constitution; and § 17 of the act, which applies to Philadelphia, does not provide that the city treasurer, etc., shall be county officers, but that they shall “ be regarded as county officers ” for the purposes of the act, to wit: shall be salaried and pay their fees into the public treasury. The act has no wider scope, and therefore no application to this case. Thirdly, even if the act could he regarded as having a broader effect and as changing the treasurer from a city to a county officer, .and waiving the question of constitutionality which would be raised in that view, such effect would be repealed by the act of 1885, already cited, which clearly makes him the head of a city department. Of course, if he is made a county officer by the constitution, the act of 1885 cannot turn him back into a city officer, but the argument from the constitution must stand by itself. It cannot get any aid from the act of 1876, because that act, if it meant to make such a change, is clearly repealed by the later act of 1885, on the same subject. The fact is, as already discussed, the change was a merely nominal one, which had no effect on the previously existing law, and neither the constitution, the act of 1876, nor the act of 1885, ever contemplated it in any other light.

*475For these reasons 1 would affirm the judgment.

Since writing the foregoing I have had the opportunity of hearing the opinion of my Brother Williams, and I concur in what he has said, except that I concede somewhat more weight to the decision in Taggart v. Commonwealth, as settling tlio construction that the constitution made the treasurer a county officer. That is the only difference in our views upon this case.

Mr. Justice Green:

I concur in dissenting from the opinion of the majority of the Court.