Commonwealth v. Wyman

Opinion, Mr. Chief Justice Paxson: It has been ascertained, in the manner required by law, that the city of Allegheny has now a population which entitles it, under the classification acts of 1874 and 1889, to become a city of the second class. Prior to the last census it was a city of the third class. It now passes from the one class to the other, by [520] reason of its growth in population, without shock or disturbance. It is the first event of the kind in the political history of the' state, and is not without interest. It is conceded that up to the present time the city of Allegheny has been governed by the special act of March 31,1870, P. L. 717, entitled “An Act to reduce the charter of the city of Allegheny, and the several acts amendatory thereof, into one act.” By that act, the powers of the municipal government were vested in the mayor and select and common councils. The select council was composed of two members from each ward, to serve for a term of two years, which term was increased by the act of 1881 to four years. There being thirteen wards in the city, the number of select councilmen has hitherto been twenty-six. It is also conceded that the city of Allegheny, while it has been a city of the third class, under the classification acts aforesaid, has never accepted the provisions of the general city laws of 1874, and hence, as was decided in Henry Street, 123 Pa. 347, was not governed by their provisions, but remained subject to the said special act of 1870. The transition from the one class to the other works no change in its government except such as the law makes necessary to adjust it to the class into which it goes. It repeals no ordinances; it vacates no offices except those which it abolishes, and makes no vacancies to be filled except by the creation of new offices. The offices of mayor, and of select and common councils are common to each class of cities. The mere fact of the transition does not necessarily unseat the persons legally filling such offices at the time it occurs, but they serve out their official terms for which they were elected, and their successors are elected under the laws regulating the class into which the city has moved. In the meantime, the officers, whose terms have not expired, become possessed of all the powers and are subject to all the duties pertaining to the offices held by them in cities of the class to which it has advanced. In other words, the machinery of the old government is to be used in adjusting the city to its position under the new. Were it otherwise, — were all offices to be suddenly vacated, we would have chaos. We would have a city without a mayor; without councils; without heads of departments; without police officers to preserve the [521] public peace, and no one authorized to set in motion the machinery by which the new government can be organized. The precise question for our determination, in this case, is whether it is the duty of the respondent, as mayor of the city, to issue his official proclamation, ordering the election, at the next municipal election, of one member of select council from each ward in the city. The court below was of opinion that such election was necessary, and awarded a mandamus ordering the mayor to issue his proclamation therefor. From this decision the mayor appealed. To the petition for the mandamus the mayor makes answer, inter aha, “ That each of the wards of said city has now a representative in select council whose term does not expire until the first Monday of April, 1893, and that there is therefore no vacancy in select council to be filled by the election to be held on the third Tuesday in February, 1891. He is further advised that the offices of said members of select council are not superseded by reason of the said city’s change in class.” It was contended on behalf of the relator that the last portion of § 2 of the act of May 8,1889, P. L. 133, entitled “ An Act dividing the cities of this state into three classes with respect to their population, and designating the mode of ascertaining and changing the classification thereof in accordance therewith,” requires the election of thirteen select councilmen at the approaching municipal election. The portion of said act referred to is as follows: “ At the municipal election, occurring not less than one month after the date of such certificate, the proper officers shall be elected to which the said city will become entitled under the change in classification, and upon the first Monday of April next succeeding thereto, the terms of all officers of said city then in office, whose offices are superseded by reason thereof, shall cease and determine, and the city government shall be duly organized, and shall thereafter be controlled and regulated by the laws of this commonwealth, applicable to the same under the respective classification hereby fixed and appointed.” Our construction of this language is as follows: (a) The proper officers to which the city will become entitled, under the change in classification, are for those offices created by the law for cities of the second class, and which did not exist [522] in cities of the third class; in other words, those offices which are required to be filled for the first time by the city of Allegheny. (5) Those officers whose terms are required to cease and determine upon the first Monday of April next are those whose offices are superseded, i. e., abolished, by the laws regulating cities of the second class. The term ceases, because the office itself is abolished. We regard this as the plain meaning of the act. The office of select councilman is not superseded; it remains under the new, precisely as it existed under the old government, subject only to a reduction in the number of members. The select council is now composed, as before observed, of twenty-six members, the terms of office of one half of whom, as I understand, will expire this spring. This leaves thirteen members, the precise number to which the city is entitled under the new order of things, whose terms will not expire until April, 1893. There is, therefore, no necessity for an election this year of such members. All the present members are entitled to retain their seats until the expiration of their respective terms. In this way, without jar or friction, the old order of things will pass away, and the citjr quietly take its place among the cities of the second class. It was urged, however, that a difficulty may arise under the second section of the act of June 14, 1887, P. L. 395, which provides for the division of select council into classes, and that, inasmuch as there are only thirteen members, they cannot be divided into two even classes. It might be sufficient to say that the act does not require the classes to be even, but, aside from this, no difficulty is apparent in dividing them by the members of the wards, thus : the members from the even wards to form one class, the members of the odd wards to form the other. It is true, this would compose one class of seven and the other of six. There would, however, be two distinct classes, as evenly divided as the circumstances will permitj and such an arrangement would be a substantial compliance with the law. And, if even classes be desired, an additional ward could, and in the course of time may be created as a public necessity. Aside from this, I am unable to see how the election of thirteen members of select council at the ensuing spring election [523] could remedy this objection, or meet this difficulty. Thirteen ■will divide by two as evenly now as then. In order that we may not be thought to have overlooked the point, I desire to say that we are not unmindful of the fact that the act of 1889 was claimed to be unconstitutional. We are of opinion that the title sufficiently indicates the object of the act, and that its provisions are germane to such object. A discussion of this point is not considered necessary. We are asked to express an opinion upon a further question not directly involved in this controversy. While averse to doing so in ordinary cases, we think the circumstances justify us in doing so in this instance, especially as both parties to this contention unite in this request. The fourth section of the act of 1887 provides as to cities of the second class as follows: “There shall be the following executive departments, the heads of which shall be chosen by city councils : I. Department of Public Safety. II. Department of Public Works. III. Department of Charities.” We are asked to say whether these respective officers shall be elected by the councils of the new or the old city. Upon this point we are in no doubt. The present councils are the councils of the new city, if I may use a term which does not quite accurately describe the situation. The city remains the same. It merely passes from one condition to another. It enters the new with all its ordinances; all its officers whose offices have not been abolished; all of its contracts in full force, and simply conforms for the future to the new regulations which the law declares shall supersede the old. The machinery of the latter, as before observód, must be used to start the city under its new government. We are of opinion that the present councils should proceed to elect the heads of departments. The judgment is reversed, and judgment is now entered for the respondent upon the demurrer.