Commonwealth v. Oellers

Opinion, Mr. Chief Justice Paxson: The commonwealth, through her attorney general, demands to know by what authority the defendant, Richard G. Oellers, claims to hold the office of county treasurer, designated as city treasurer, of Philadelphia, and to exercise the functions thereof. It appears by the defendant’s plea that he claims title to said office by virtue of his election thereto by a viva-voce vote of the councils of said city, at a joint meeting thereof, on May 28, 1891, to fill a vacancy occasioned by the resignation of Jolm Bardsley. It is contended by the attorney general that, by the constitution and laws of this commonwealth, it was the duty of the governor to appoint a suitable person to fill such vacancy, and that, in the performance of that duty, he had appointed William Redwood Wright as such suitable person. We have thus the issue, sharply defined, whether the power to fill the vacancy in question is lodged in the city councils or in the governor. [464] If this were a new question, or one involving a new principle, we might feel it necessary to discuss it at some length. As, however, it is a mere threshing of old straw, an elaboration of it is not requisite. Every question now presented was raised and decided in Taggart v. Commonwealth, 102 Pa. 354. It is true, that contention was over the office of controller, while this is over the office of treasurer; but this makes no essential difference, as the same law applies to each. Both offices have been changed by § 1, article XIV. of the constitution, and by tiie act of March 31, 1876, P. L. 13, from a mere city or municipal office, which the legislature may destroy at will, to a county office, resting upon the organic law, and beyond the power of the legislature to abolish. We do not propose to re-open the discussion of the case upon this point. Taggart’s case was carefully considered and properly decided. We were aided by a very clear and able opinion by the late Judge Ludlow, who decided that case below, and subsequent reflection has but confirmed us in the correctness of that decision. It is not needed, therefore, to discuss this point again. It is sufficient to say, that, for the purposes of this case, we must regard the office designated as city treasurer, as a county and not a city office. The treasurer, by whatever name he may be called, is a county officer, exercising his functions over the entire territory of the city of Philadelphia, which is coextensive with that of the county, just as the sheriff, recorder of deeds, and other county officers exercise their functions over the same territory. Assuming then, as we are bound to do, that the treasurer is a county officer, we come directly to the only question in the case, in whom is the authority lodged to fill a vacancy in said office ? The law is not even doubtful upon this point. It is declared by § 2 of article XIV. of the constitution, that “ all vacancies, not otherwise provided for, shall be filled in such manner as may be provided by law.” The law which provides for the filling of such vacancies is the act of May 15, 1874, P. L. 205, which declares: “ That in case of a vacancy, happening by death, resignation or otherwise, in any office created by the constitution or laws of this commonwealth, and where provision is not already made by said constitution and laws to fill said vacancy, [465] it shall be the duty of the governor to appoint a suitable person to fill such office,” etc. Just here the point comes in which the defendant contends distinguishes this from Taggart’s case. His allegation is that the governor cannot fill this vacancy, because another mode of doing so is provided by the constitution and laws; and he points us to the tenth section of the act of February 2, 1854 (consolidation act), P. L. 21, which provides, inter alia, that “ any vacancy in said office (city treasurer) shall be filled by the city councils, by viva-voce vote in joint meeting.” This very point was made in Taggart’s case. It was raised by the pleadings, argued by counsel, and decided by the court. It is true, no reference was made to it in the opinion of Chief Justice Merche. It was fully discussed in the court below, and the case having been decided here upon the broad ground that the controller was a county officer, the point in question became of no practical importance. It»is too plain for argument that city councils cannot fill a vacancy in a county office. They might as well attempt to fill a vacancy in the office of sheriff. In view, however, of the peculiar circumstances ■ of this case, and the zeal with which this point has been again pressed upon us by the able counsel representing the defendant, a brief reference to it may not be inappropriate. As before observed, the tenth section of the act of 1854 provided for the filling of a vacancy in the office of city treasurer by a viva-voce vote of city councils. The forty-sixth section of said act contains the further provision that: “ Whenever any elective officer of said city shall die, or become incapable of fulfilling the duties of his office, his place, except where other provision is made for filling the vacancy, shall be filled by a joint vote of city councils, until the next city election and the qualification of the successor in office: Provided, That such vacancy shall exist at least thirty days before the next city election, otherwise such vacancy shall be filled at the next election thereafter.” The controller was “an elective officer of said city,” and came directly within this provision. A vacancy in his office was as fully provided for in the act of 1854 as was a vacancy in the office of treasurer. It was contended in Taggart’s case, just as it was in this, that because of such provision, the gover [466] nor had no power to fill the vacancy. We had precisely the same arguments then that we have now. It will be observed that the tenth section of the act of 1854 does not fix the term during which a treasurer elected by councils to fill a vacancy shall hold said office. It was contended that, as the term was not designated, he would be entitled to hold for the balance of the unexpired term, whatever that may be. This position cannot be sustained. It is in direct conflict with our whole system and policy in filling vacancies. In all our legislation upon this subject, it is plain to see that in filling vacancies in elective offices the policy of the law has uniformly been to return to the people, as soon as reasonably practicable, the election of a successor. Hence, in nearly if not quite all elective offices from the governor down, if a vacancy occurs more than three calendar months prior to the next election, it can only be filled until said election and the qualification of the successor. That a departure from this rule was not intended by the tenth section of the act of 1854, is manifest by an examination of the forty-sixth section thereof, which, as before observed, provides that vacancies in all elective offices of said city shall be filled only until the next city election. The tenth and the forty-sixth sections of the act of 1854 must be construed together. They are a part of the same act and the same system. Thus considered, we find that in case of a vacancy in the office of treasurer, his successor is to be elected by a viva-voce vote of councils, while in the case of every other elective officer the vacancy shall be filled by a joint vote of city councils ; in both cases the person so elected shall hold until “the next city election.” It follows, necessarily, that if the election by councils in this case has the authority of law, the defendant would hold the office until the next city election in February, 1892 (except for the accident that his term expires in January next), at which time it would not be possible to elect his successor. Being a county officer, his election can only take place at the general election, and this has been the uniform practice under the constitution and the act of 1876. The next election for county treasurer will be held in November next, and the term of the person then elected will commence on the first Monday of the following January. This would be several weeks prior to the expiration of defendant’s [467] term -under his election by councils, except for the accident above stated. The principle contended for would go to this extent. This incongruous, if not absurd result would necessarily follow any attempt to force the constitution into harmony with legislation existing at the time of its adoption. It is proper to^say, in justice to the learned judges of the court below, that their judgment was practically pro forma and entered for the sole purpose of sending the case up for an early decision. Under the circumstances, we decided to hear and dispose of it in that shape at the earnest request of both parties. The judgment is reversed and judgment is now entered for the commonwealth upon the demurrer. It is further considered and adjudged by the court that the defendant, Richard G. Oellers, be, and he hereby is ousted from the office of county treasurer, designated as city treasurer, of Philadelphia, and from the fees and emoluments thereof.