Dissenting Opinion by
Mr. Chief Justice Bell :Philadelphia is not a City governed solely by a May- or — it elects, inter alia, not only a Mayor but also an equally important body — a legislative body known as City Council with 7 couneilmen-at-large and 10 special councilmen elected to represent the people in 10 districts, including the 7th Councilmanic District here involved. When Mayor Dilworth resigned and Councilman Tate took his place, this created a real, not an imaginary vacancy in City Council.
Richardson Dilworth was elected Mayor of the City of Philadelphia and James H. J. Tate was elected to the office of Councilman from the 7th Councilmanic District, at the municipal election held in November, 1959, each for a term of four years. When Council met on January 3, 1960, Councilman Tate was duly elected President of City Council. On January 14, 1962, Dilworth resigned as Mayor effective February *52412, 1962.* The next day, Tate obtained by resolution of City Council, a leave of absence from Council. Thereupon Councilman Paul D’Or tona was selected by his colleagues to take Tate’s place and took the oath of office as “President pro tempore of the Council”. The same day Tate was sworn in as acting Mayor. Since February 13, 1962, Tate has been either Mayor or Acting Mayor of Philadelphia. During this time Tate has always been called Mayor, is paid the salary and emoluments' of Mayor, and has never acted as Councilman.
Mayer, a taxpayer and elector of Tate’s 7th Councilmanic District, presented a petition in mandamus to compel the holding of a special election to fill Tate’s vacancy in the office of Councilman. Mayer’s legal standing and right to sue to obtain proper representation is clear from the recent decision of the Supreme Court of the United States in Baker v. Carr, 369 U. S. 186. Respondent contends (and the lower Court held) that there was no vacancy in the 7th Councilmanic District on the ground that Tate is still a Councilman and can resign from the mayoralty whenever he desires and still return and assume his position as President of City Council. Respondent further contends that Tate as Mayor likewise doubles as Councilman from the 7th Councilmanic District and therefore plaintiff and all the electors of that District are still legally and adequately represented by Mayor Tate. This, I believe, creates a “make-believe” world, and with these conclusions I disagree.
I believe that Tate is Mayor of the City of Philadelphia. I am convinced that there is a vacancy in the 7th Councilmanic District and that the electors of that *525District are entitled to a real and not an imaginary representative in City Council. I am further convinced that the offices of Mayor and of City Councilmen under the Charter and the governmental organisation of Philadelphia are absolutely incompatible, and except during temporary illness or temporary absence of a Mayor, the two positions cannot be filled by one person.
The majority and I agree that the most important question here involved has to be determined by the Philadelphia Home Rule Charter. We thereafter part company for the two-fold reason that I believe (1) that the language of the Philadelphia Home Rule Charter must receive a reasonable interpretation, since that is by common sense, by the Statutory Construction Act and by decisions of this Court a well-recognized presumption, and (2) that the Charter must be considered as a whole instead of merely Section 3-500. Interpreted in the light of the foregoing principles, a vacancy exists in the 7th Coimcilmanic District, and an election to fill the vacancy should be held on November 6, 1962.
The enabling Act of April 21, 1949, P. L. 665, 53 P.S. §13101 et seq., authorized the City to adopt its own Charter subject to certain limitations therein specifically prescribed, including, in Section 17, “the power and authority to prescribe the elective city officers, who shall be nominated and elected only in the manner provided by, and in accordance with, the provisions of the Pennsylvania Election Code and its amendments . . .”
The Act of May 23,1949, P. L. 1656, 25 P.S. §2778.1, amended the Election Code by adding Section 628.1 which provides for elections to fill vacancies in the office of a member of the Council by a special election, without limiting it to the election provided for other city officers, including the Mayor. The Philadelphia Home Rule Charter provides in Section 2-101 with respect to the election of a councilman pertinently as follows:
*526“The Election of Couneilmen. . . . one councilman shall be elected from each councilmanic district and seven from the City at large. Each elector shall have the right to vote for one district councilman and for five councilmen-at-large. . . . Should a vacancy occur in the office of any councilman, the President of the Council shall issue a writ of election to the board of elections having jurisdiction over elections in the City for a special election to fill the vacancy for the balance of the unexpired term, which election shall be held on a date specified in the writ, but not less than thirty days after its issuance. The President of Council may fix as the date of the special election, the date of the next primary, municipal or general election.”
The majority hold that the President of City Council shall be an acting Mayor until a permanent vacancy in the office of Mayor has been filled by a popular election. The majority derive this conclusion from the following provision of the Charter: “Section 8-500. Mayor. An election to fill a vacancy for an unexpired term in the office of Mayor shall be held at the next municipal or general election* occurring more than thirty days after the vacancy occurs, unless the vacancy occurs in the last year of the term, in which event a Mayor [not an “acting” Mayor] shall be chosen** by the Council by a majority vote of all its members. Until the vacancy is filled, or in case of the Mayor’s temporary disability, the President of the Council should act as Mayor; and if the President of the Council shall resign or be unable to act, then the Chairman of the Finance Committee of the Council shall act as Mayor.”
If Section 3-500 were the only pertinent provision, which it is not, I would hold that it is ambiguous and the intent of the Charter, giving it as we must a reasonable construction, was that if the Mayor resigned or *527died shortly after his election, the Mayor* shall be chosen by the City Council'* and such choice was to be Mayor for the unexpired term. By construing the word “act” in Section 3-500 alone and narrowly, the majority hold that Tate becomes only an acting Mayor. But Section 3-500, although susceptible of that as well as the opposite construction, does not stand alone. The people of the City of Philadelphia provided in their Charter and are entitled to certain specified council-manic representatives which the majority utterly deny them and hold in effect that they can be denied this representation for a period of two years or more.
Respondent further contends, we repeat, that Mayor Tate can resign whenever he desires and return to his position as President of City Council. This contention is so obviously unfair to the people of that Council-manic District and is, I believe, so far fetched and unrealistic as to be absurd.
A much closer and more perplexing question is raised by the contention of the respondent-appellee, namely that mandamus will not lie to determine the legal issue here presented because the time of election is discretionary. It is well settled law, as stated in Garratt v. Philadelphia, 387 Pa. 442, 448, “. . . (1) that mandamus lies where there is a clear legal right in the plaintiff and a corresponding duty in the defendant, and the act requested is not discretionary but only ministerial, and (2) that mandamus will not lie to control an official’s discretion or judgment where that official is vested with a discretionary power. However, the discretion is reviewable and reversible where it is arbitrarily or fraudulently exercised or where, as here, it is based upon a mistaken view of the law: Maxwell v. Farrell School District Board of Directors, 381 Pa. 561, 112 A. 2d 192, and cases therein cited.” This law was quoted or reiterated in Maxwell v. Farrell School *528District Board of Directors, 381 Pa. 561, 112 A. 2d 192; Zaccagnini v. Vandergrift Borough, 395 Pa. 285, 150 A. 2d 538; Travis v. Teter, 370 Pa. 326, 87 A. 2d 177; Mellinger v. Kuhn, 388 Pa. 83, 130 A. 2d 154.
Respondent contends that the President of City Council has the discretion to call a special election to fill Tate’s vacancy if any exists* at any primary or general or municipal election which is held within the next two or more years, or in his sole discretion whenever he may desire. While this question was not raised in the Court below and could not be considered by this Court if it had been raised by appellant, it can be considered if raised by appellee. Sherwood v. Elgart, 383 Pa. 110, 115, states: “Appellants contend this question [of unconstitutionality] cannot now be raised because of the general rule laid down in Montgomery C. Bar Assn. v. Rinalducci, 329 Pa. 296, 298, 197 A. 924 and Smith v. Yellow Cab Co., 288 Pa. 85, 135 A. 858: ‘. . . Matters not raised in, or considered by, the court below cannot be invoked on appeal even though they involve constitutional questions.’ That is not applicable because it applies only to appellants. The rule here applicable is that a correct decision will be sustained if it can be sustained for any reason whatsoever; in other words we will not reverse in such a case even though the reason given by the Court below to sustain its decision was erroneous: Derry Council, No. 40 v. State Council, 197 Pa. 413, 420; Com. to use v. Wing, 253 Pa. 226, 230; Corgan v. Geo. F. Lee Coal Co., 218 Pa. 386, 392; Brew v. Hastings, 206 Pa. 155, 162; 2 R. C. L. 189; State H. for C. I. v. Consolidated W. S. Co., 267 Pa. 29, 39.”
Section 2-101 of the Philadelphia Home Rule Charter, supra, provides that the President of City Council may call a special election to fill a councilmanic va*529caney at “the next primary, municipal or general election.” In my judgment this must be (a) reasonably construed and (b) construed together with every other pertinent provision of the Charter. In Sherwood v. Elgart, 383 Pa. 110, the Court said, p. 114: “To fail to give effect to all of the provisions of a statute or to give them an unreasonable or absurd construction would violate the fundamental rules of statutory interpretation: Sterling v. Philadelphia, 378 Pa. 538, 541, 106 A. 2d 793; American Brake Shoe Co. v. District Lodge 9 of the International Association of Machinists, 373 Pa. 164, 172, 94 A. 2d 884; Statutory Construction Act of May 28, 1937, P. L. 1019, Art. IY, §§51, 52; 46 PS §§551, 552.”
The primary election in May, 1962, having gone by, the next General Election is November 6, 1962, and the next Municipal Election is May 21, 1963. Respondent apparently further contends that because of the word “may”, the President of City Council may, we repeat, call a Special election three years later or at any time he desires. A reasonable construction of these words, especially when considered together with the entire Charter, would not give the President of City Council the discretion to postpone this special election for a period of two years, or at his discretion at any time in the third year he desires; a reasonable construction requires that the special election must be held this year. It follows that the President of City Council had the discretion to call an election to fill the vacancy in the May Primary of 1962 or in the November General Election of 1962. Irrespective of whether Tate is Mayor or acting Mayor, the President of City Council, having failed to call for an election to fill the vacancy in the next Primary, i.e., in May, no longer has any discretion but merely a ministerial duty of calling a special election at the next regular election, to wit, November 6, 1962; and his act, being merely ministerial, mandamus will lie.
*530To deprive Philadelphia citizens, electors and taxpayers of the 7th Councilmanic District for two or more years of representation in the City Government is repugnant to our “Republican Form of Government” and to the basic American spirit of fairness, equality and justice for all. The deplorable result reached by the majority can be justified only by the clearest language in our Federal or State Constitutions or in a Legislative act or in the Philadelphia Home Rule Charter. No such language exists, hence I would require an election to fill the councilmanic vacancy.
For these reasons I would reverse the Order of the Court below and direct it to issue a mandamus compelling the President of City Council to issue a writ of election for a special election to be held on November 6, 1962, to fill the Councilmanic vacancy in the 7th Councilmanic District.
Mr. Justice O’Brien joins in this dissenting opinion.The next election for Mayor of Philadelphia will take place on November 5, MBS, Cali v. Philadelphia, 406 Pa. 290. The provisions of the Election Code with respect to an election necessitated by a vacancy in the office of Mayor and in the office of Councilman are very different.
See Cali v. Philadelphia, 406 Pa., supra.
Not an acting Mayor, but a Mayor.
Not an acting Mayor, but a Mayor.
Unless the vacancy occurred in the fourth year.