PHILADELPHIA v. HEMPHILL, 421 Pa. 489 (1966)

218 A.2d 770

Philadelphia v. Hemphill, Appellant.

Supreme Court of Pennsylvania.April 19, 1966.
April 20, 1966.

Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN, O’BRIEN and ROBERTS, JJ.

Appeal, No. 300, Jan. T., 1966, from judgment of Court of Common Pleas No. 5 of Philadelphia County, March T., 1966, No. 2082, in case of City of Philadelphia and Paul D’Ortona, President of City Council v. Alexander Hemphill, City Controller. Judgment affirmed.

Mandamus.

The complaint alleged that the defendant is the City Controller of the City of Philadelphia, that on March 17, 1966 there was introduced into the Council of the City of Philadelphia a bill to authorize the creation of a $20,000,000 loan for improvements to the Philadelphia

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Gas Works “all being capital expenditures” which received first reading on March 24, 1966; that the Act of June 25, 1919, P. L. 581, Art. 17, § 8, as amended, required, as a prerequisite to an increase of the indebtedness of the City of Philadelphia, a certification by the City Controller that the proposed expenditures are “capital expenditures as distinguished from current expenses” and that the defendant City Controller had refused to give the necessary certification despite an opinion from the City Solicitor that “You are required to issue the certification required.” The complaint, filed on March 31, 1966, asked for a summary judgment against the defendant commanding him to follow the opinion of the City Solicitor and to give the statutory certification. A separate petition for summary judgment was filed and at a hearing held on April 4, 1966, defendant’s answer to this petition was filed at the bar of the Court. On the following day the Court entered summary judgment against the defendant, opinion by REIMEL, P. J., and ordered him to “forthwith certify that the proposed expenditures provided for in Bill No. 1722 are ‘capital expenditures as distinguished from current expenses’ pursuant to Article XVII, § 8 of the Act of June 25, 1919, P. L. 581, as amended, and that he recognize, honor and be bound by the opinions of the City Solicitor in any matter affecting the official conduct of the office of the City Controller.” Defendant appealed.

Alexander Hemphill, appellant, in propria persona, with hi Gilbert Stein.
Edward G. Bauer, Jr., City Solicitor, with him Levy Anderson, First Deputy City Solicitor, and Matthew W. Bullock, Jr., Second Deputy City Solicitor, for appellees,

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William T. Coleman, Jr., with him Robert W. Maris, an Dilworth, Paxson, Kalish, Kohn Dilks, for amicus curiae.

ORDER PER CURIAM, April 20, 1966:

Judgment affirmed.

DISSENTING OPINION BY MR. CHIEF JUSTICE BELL:

It is unfortunate that this question and issue were not amicably resolved by the parties and the doubts and fears of the Controller, as to whether the proposed loan was for “capital” expenditures, removed. With a little give and take, this could easily have been done.

The Act of June 25, 1919, P. L. 581, as amended, July 11, 1923, 53 P.S. 12558, pertinently provides: “It shall be lawful for such city to borrow money or incur debt, in accordance with the terms of existing law, for the purpose of acquiring property, erecting buildings, . . . . or for any other improvements of a permanent or a temporary kind, or for capital outlay of any kind: . . . Provided, That all of the such proposed expenditures . . . are certified to the Council by the city controller to be capital expenditures as distinguished from current expenses, prior to the authorization of such debt . . . The certificate of the city controller shall be final and conclusive as to the character of the proposed expenditures. . . .”

It is crystal clear that the statute gives the Controller discretion to determine whether proposed expenditures are “capital” expenditures as distinguished from current expenditures, and further provides that the Controller’s certificate shall be final and conclusive as to the character of the proposed expenditures. This is not merely a ministerial duty, this is a duty coupled with a discretion.

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“Mandamus lies to compel a ministerial act but not to review discretion, except where it is arbitrarily or fraudulently exercised or where it is based upon a mistaken view of the law: Garratt v. Philadelphia, 387 Pa. 442, 448, 127 A.2d 738; Travis v. Teter, 370 Pa. 326, 330, 87 A.2d 177; Maxwell v. Farrell School District Board of Directors, 381 Pa. 561, 566, 112 A.2d 192.” Commonwealth v. Caplan, 411 Pa. 563, 567-568, 192 A.2d 894. Accord: Commercial Properties, Inc. v. Peternel, 418 Pa. 304, 309, 211 A.2d 514.

On the present state of the record I find no arbitrary or fraudulent exercise of the Controller’s discretion on the issue of “capital” expenditures, nor was it based upon a mistaken view of the law.

For these reasons I dissent to the present Order of this Court which affirmed the Order of the Court below which required the City Controller to certify that certain proposed expenditures were “capital” expenditures.

Mr. Justice ROBERTS joins in this Dissenting Opinion.