Dissenting Opinion by
Mr. Justice Benjamin R. Jones:I want to register my dissent from the action taken by the majority of this Court because I am- convinced that (a) the conclusion reached by the majority contravenes the clear and unambiguous language, as well as the spirit, of Section 10-107(5) of the Charter of the City of Philadelphia and (b) the manner in which such conclusion is reached cannot help but undermine the confidence of the Bench, the Bar and the public in the stability of the decisions of this Court.
*30In dismissing this taxpayer’s bill in equity, the court below did so on three grounds: (1) that this action was instituted prematurely; (2) that equity lacked jurisdiction to entertain this action, quo warranto being the sole and exclusive remedy; (3) that James H. Tate, as a candidate for election as Mayor of the City of Philadelphia, was not required by the terms of the City Charter to resign as a member of City Council. The majority of this Court, in effect, now holds, inter alia, that this action was prematurely instituted but that equity can entertain jurisdiction of this action: to that extent, the majority of this Court disagrees with the court below. Were this the sole basis for the majority ruling, in all likelihood, I would not file a dissenting opinion. While I entertain very serious doubt that equity, rather than quo warranto, is the appropriate remedy, I believe that the exigencies of the present situation and the interests of the public demand a speedy and immediate resolution of the instant controversy on its merits.
That which impels my dissent is the action of this Court, through the medium of overruling our very recent decision in Mayer v. D’Ortona, 408 Pa. 518, 184 A. 2d 582, in now holding that James H. J. Tate is not a member of the City Council and is the Mayor of the City, whereas only six months ago this Court declared on the same posture of faets that Mr. Tate was a member of the City Council and was not the Mayor, but the Acting Mayor, of the City. By its ruling, this Court now rules that Mr. Tate, as the Mayor, is not within the proscriptive provisions of Section 10-107(5) of the City Charter.
Section 10-107(5) of the Charter provides: “(5) No officer or employee of the City, except elected officers running for re-election,1 shall be a candidate for *31nomination or election, to any public office unless he shall have first resigned from his then office or employment.” (Emphasis supplied) It is beyond question that Mr. Tate was duly elected as a member of the Council of the City; that during his tenure in the office of councilman, Richardson Dilworth resigned as Mayor of the City; that an action was then instituted to determine the status of Mr. Tate in the government of the City; that, on October 10, 1962, this Court held that Mr. Tate, although the Acting Mayor of the City, retained his councilmanic office; that when Mr. Tate, then a councilman and so recognized by this Court, became a candidate for nomination to the office of Mayor, he did not first resign his councilmanic office.
The basic issue is whether Mr. Tate, at the time he became a candidate for nomination to the office of Mayor, was an “officer” of the City within the intendment of Section 10-107(5), supra. In resolving this issue, the majority of this Court, excluding Mr. Justice Cohen, initially considered Mr. Tate’s two distinct contentions: (1) that, as Acting Mayor of the City, he is within the provisions of Section 3-4002 rather than Section 10-107(5), of the Charter; (2) that Section 10-107 (5) does not apply to him since, as a member of Council, he is not an “officer” of the City. After a discussion of both contentions, the majority rejected them; with such rejection I am in agreement. The majority opinion then states: “. . . under the decision in Mayor v. D’Ortona, . . . and in the light of the Charter provi*32sions . . . Tate would have to resign as Councilman in order to be a candidate for Mayor.” With that statement I am in full accord.
However, the majority of this Court then proceeds to overrule Mayer v. D’Ortona, to change the status of Mr. Tate so recently enunciated by this Court and to declare that Mr. Tate is neither a member of Council nor the Acting Mayor but the Mayor of the City to whom the provisions of Section 10-107(5) are inapplicable. Only six months ago this Court, in a well considered opinion,- determined Mr. Tate’s status to be that of councilman and Acting Mayor: today, on the samé set of facts, this Court completely changes Mr. Tate’s status and declares him to be Mayor. With such juristic acrobatics I will have no part!
One seeks in vain in the majority opinion for any justifiable reason to overturn Mayer v. D’Ortona. Under such circumstances how can this Court reasonably expect to enjoy or retain the confidence of the Bench, the Bar and the public in the stability of its rulings? Clearly, the end does not justify the means;
An examination of the provisions of Section 10-107(5) clearly and unequivocally reveals the intent of the framers of the Charter, i.e., to prohibit an “officer” of the City from becoming a candidate for nomination or election to another public office without first resigning his then office. In my opinion, Mr. Tate clearly is a member of Council and, as such member of the Council, is an “officer” to whom the provisions of Section 10-107(5) apply and, under the provisions of that section, Mr. Tate, before becoming a candidate for nomination for the office of Mayor, was required to resign his councilmanic office. His failure to resign such office constitutes a forfeiture of that office and disqualifies him from being a candidate for the office of Mayor.
Mr. Tate is certainly not within this exception.
Section 3-400 provides: “The Mayor shall serve for a term of four years beginning on the first Monday of January following his election. He shall not be eligible for election for more than two successive terms; and he shall not during his term of office be a candidate for any other elective office whatsoever. Should he announce his candidacy for any other office, he shall be automatically disqualified to continue to serve as Mayor, and the office shall be deemed vacant.”