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From the Newsletter of the Philadelphia City Archives, # 31 (June 1977)

THE TANGIBLE MANIFESTATION OF LAW (Part I)

By Ward J. Childs

Though William Penn envisioned his new City, lying between the banks of the Delaware and Schuylkill Rivers, as a "City of Brotherly Love" he was realistic enough to know that law, not love, is the mechanism that regulates the interactions of men. He embodied this concept in the Frames of Government of the Province of Pennsylvania, 1682 and 1701, and in the 1701 Charter of the City of Philadelphia, and it has remained a continuous strand in the webs of government of the Commonwealth and the City for nearly three centuries. Since law has its most tangible manifestation in the operation of legislative, executive and judicial branches of government, it follows that the records of these branches have some value for studying the history of the workings of the law.

Law in Philadelphia emanates from two legislative bodies. Philadelphia has its own City Council which passes laws in the form of ordinances, which are then codified in the City Code. Moreover, like the rest of Pennsylvania, the City must enforce the Acts of the Pennsylvania General Assembly. However, unlike most other jurisdictions, Philadelphia enjoys home rule. Home rule, which was adopted by the City's electorate on April 17, 1951, was made possible by Section I of Article XV of the Pennsylvania Constitution which granted to "cities of any particular class. . the right and power to adopt their own charters, and to exercise the power and authority of local self government" subject only to any restrictions, limitations or regulations imposed by the General Legislature. An enabling Act of April 21, 1949 defined these powers specifically in regard to Philadelphia. By granting home rule the General Assembly of Pennsylvania gave the City complete power of legislation in relation to municipal functions and excluded itself from legislating on those matters that were within the scope of the powers granted. Historically the very opposite had been true. Penn's Charter of 1701 had provided that Council could make "so many good and reasonable laws, ordinances and constitutions (not repugnant to the laws of England and this government)" which were necessary for the government of the City. Although the wording of this grant would seem to imply a very broad grant of legislative powers to City Council, in fact, the legislative power of Corporation was very limited. Philadelphia was the typical Seventeenth Century municipal corporation. As such it could only exercise those powers specifically granted to it. By granting legislative powers in such general terms, Penn, in actuality, had given to the Corporation almost no power at all to make laws. If Philadelphia had remained the "Greene Country Towns" that Penn had envisioned, this might not have mattered. But Philadelphia was a rapidly growing City, growing so fast, in fact, that it had outgrown its Charter and its Corporation long before the Revolution made both of them defunct. Confined in the strait jacket of the Corporation's Charter and faced with the problems of a City in which society was becoming ever more complex, the City fathers only had recourse to the General Assembly as an instrument of change. In fact, to the modern observer, it would indeed seem very strange that some of these changes were needed. In 1712, for instance, the Provincial Assembly, for the first time, gave city officials (the assessors) the power to tax. This basic governmental power had been ignored in the Charter of 1701, on the evidence of which it would seem that Penn had expected the City to pay its way by "mulcts and amercements upon breakers of . . . laws and ordinances" levied by the Mayor's Court, very much like some rural speed trap in the contemporary United States. Stranger still to the modern observer should be the manner in which the Assembly effected change. Rather than attempt to pump new life into the Corporation, the Assembly met each new urban challenge with the creation of a new independent governmental unit. During these seventy-five years of the Charter's life the Assembly brought the offices of assessors, wardens and street commissioners into existence, and in one of these instances, the street commissioners, the Assembly actually stripped authority from the Corporation.

Our purpose in this summary is not to reiterate the already over-reiterated defects of the Corporation of 1701, but to point out how historical circumstance forced the Assembly of Pennsylvania to become the actual legislative body for the City in all but the most minor things, and to use the history of the Corporation created by the Charter of 1701 as a yardstick for measuring the City's legislative independence under subsequent Charters. Using this criterion, it must be assumed that the framers of the Charter of 1789 had learned nothing at all from the experience of the previous Corporation. Although the new Charter provided for the general election of aldermen and common councilmen and the publication of ordinances as a nod to democracy, and incorporated many of the salutary improvements passed by the Assembly during the first corporation, the Act of incorporation of 1789 included no mention of the power of taxation for the Corporation and granted power of legislation to the Corporation in virtually the same words as that of Penn's Charter, eighty-eight years previously. In fact, the Charter of 1789 was as much a Seventeenth Century document as its predecessor had been. It was only a series of supplementary and special Acts of Assembly, which began in 1790 by giving the Corporation the power "to assess and levy taxes for lighting, watching, watering, pitching paving and cleansing the streets" and culminated in the popular election of the Mayor by an Act of 1839, that made the Corporation a viable "city" government as we would understand it today. Moreover, these Acts served as a starting block which allowed City Councils to zoom to political preeminence. By taking powers of appointment from the Mayor, the Act of 1839, in effect, made the joint standing Committees of Councils, established by ordinances of 1833 and 1835, the de facto executive power in city government. In the years 1789 to 1854 the City began to jell into the mold of government it would carry until 1887, and the vestiges of which would linger to 1951. The Consolidation Act of 1854 gave the Assembly's stamp of approval to these arrangements and ushered in the golden age of councilmanic power by extending the jurisdiction of the Corporation to the County at large.

Even though this was the era in which the power of the City's legislative body was at its apogee, this power still was very limited. Reference to digests of acts of the Assembly and ordinances of Councils relative to Philadelphia would show just how long a shadow was thrown by the Pennsylvania Assembly over municipal affairs. Since the City Councils were the creature of the Pennsylvania General Assembly, they could only legislate in these areas specifically granted to it by acts of the Assembly (including the City's Charters). Since Pennsylvania Courts, applying Dillon's rule on municipal Corporations, denied the existence of a specific power where none was expressed by legislature grant, Councils were unable to legislate on the assumption of the doctrine of implied powers. As a result, we find such strictly municipal areas of legislation as nuisances, police, building inspection and the vacating, widening and macadamizing of City streets as subjects of Acts of the Assembly. Moreover, so shadowy was the line of demarcation between the powers of the State and City legislative bodies relative to some municipal functions that special interest groups very often would apply to the Pennsylvania Legislature for special acts which would abrogate or render ineffectual ordinances of City Councils unpleasing to them, often to the detriment of the citizens at large. One of the more glaring instances of this was the gradual diminution of City - jurisdiction over street railways as the result of these special acts of the Legislature in the 1860s and early 1870s.

Though the abuse of special acts of Assembly was effectively stifled by Sections 6 and 7 of Article III of the Pennsylvania Constitution of 1874, the other problems continued. The Charters of 1887 and 1919 provided for a more streamlined City government. However, with the exception of Section 2 of Article III of the Charter of 1919, which permitted Council to reorganize departments, these charters were no more flexible than the three which preceded them. In fact, the stipulation in each charter that no new city departments should be created made it almost a foregone conclusion that further State legislation would be needed.

The laws in force at various periods of Philadelphia history may be found in the Statutes at Large of Pennsylvania 1676 to 1809, the Laws of the Commonwealth of Pennsylvania, usually referred to as the Pamphlet Laws, 1802-date, and published ordinances and resolutions of Councils, 1854- date. Although the City did not issue yearly Compilations of ordinances until 1854, the period of the second Charter is amply covered by the various digests of acts and ordinances relative to the City of Philadelphia which were published from the year of 1789. Ordinances may also be found in the published Journals of Select and Common Councils which date from 1835. For the period of the Charter of 1701, there is no compilation of City ordinances, and, for the time being, the researcher is referred to the Journal of Common Council, 1704-1774. The City Archives hopes to remedy this deficiency somewhat in the near future. It is currently engaged in compiling a computerized index to ordinances and resolutions, reports, communications and elections which appear in manuscript and published journals of Council for the years 1704 to 1854.

To the researcher the manner in which legislation comes into existence is often more important than the legislation itself. The original form of a bill, by whom it was introduced, how it was amended, why, and who voted for it are the usual questions asked. The progress of a bill from introduction, through referral to committee, amendment and passage into an Act or ordinance may be traced in the Votes and Proceedings of the House of Representatives of the Province of Pennsylvania. 1682-1776, which is Series 8 of the Pennsylvania Archives, the House and Senate journals of Pennsylvania 1791-1942 (these were also published in a combined Legislature Journal after 1857), and in the manuscript and published minutes and journals of City Councils, 1704 to date. Very often much of the background of a bill is provided in appendices to the journals of a legislative body, such as those of the Select and Common Councils, which include bills as introduced, petitions, communications, and reports. Since so much of the work of the City Council takes place in committees, the minutes, records of investigation and reports of standing and select committees of City Council are valuable for studying the legislature process. Manuscript minutes and published journals of City Councils 1704-date, records of councilmanic committees, manuscript and published ordinances, 1833 to date, and digests of acts And ordinances, 1811 to 1910 are included in Record Group 120 of the City Archives. The City Archives also holds a set of the Votes and Proceedings . . . and a set of Statutes at Large. The Pamphlet Laws are available at the Jenkins Law Library of the Philadelphia Bar Associations. The Free Library's Government Publications Department holds the House and Senate Journals, 1791 to 1942 with some gaps. The manuscript Minutes and Papers of the General Assembly 1777-1909 are in the custody of the Pennsylvania Historical and Museum Commission. As an adjunct to the passage of legislature by the General Assembly or by City Councils the Philadelphia newspapers are indispensable. Especially so in the nineteenth century when meetings of the Assembly and Councils are given very close attention. Since Philadelphia's Charters from 1789 to 1919 took the form of Acts of the General Assembly they may be found in the Pamphlet Laws, and the steps by which they were framed may be traced through the journals of the Pennsylvania House and Senate. In contrast the Home Rule Charter of 1951 was prepared by a commission specifically created to formulate a City Charter for Philadelphia in pursuance of an Act of April 21, 1949. The records of the City Charter Commission provide a unique opportunity to the student of municipal government to witness such a government in the making. Included are minutes of the Commission, transcripts of public hearings, reports, recommendations, and Charter drafts. Of related interest are the transcripts of public hearings of the Advisory Consolidation Commission of 1952, relative to the integration of County functions into the new City government, and the reports of the unsuccessful Philadelphia Charter Commission of 1937. The Charter Revision Commission of 1973 also failed to have its recommendations implemented, but transcripts of its public hearings, now in the custody of the City Archives, constitute an interesting critique of the Home Rule Charter after twenty years of use. The Charter of 1691, which has been published in Allinson's and Penrose's Philadelphia 1681-1887, has the unique distinction of being the only document left from the first ten years of the City's government. Its successor, the 1701 Charter, is currently on exhibit in the Mayor's Reception Room of City Hall. Finally, we must mention the proposed Charter of 1706 which was prepared by the Corporation but rejected by Penn because of differences between the anti-proprietary party in Pennsylvania and himself. In some of its sections this charter differed radically from its predecessor, particularly in regard to the City's Courts. The original of this document is in the custody of the American Philosophical Society. The Charter has been published in Volume 96, Number 4 of the Proceedings of the American Philosophical Society. The Corporation's power to legislate under the Charters of 1701 and 1789 was very limited. Certainly the same thing cannot be said about its power to enforce laws. Despite this request by the Corporation for more power for its Court, it does not seem too exaggerated a statement to say that the real power of the Philadelphia Corporation lay in Penn's grant of judicial power. In contrast to the Corporation's legislative power, the judicial grant was very specific. The Mayor, Recorder and aldermen were designated justices of the peace in the City and County and there could be no quorum of the "justices of the county courts, quarter sessions oyer and terminer and gaol delivery" without the presence of the Mayor and Recorder. Within the City the Mayor, Recorder and any two aldermen constituted a Mayor's Court with full power to try cases of treason murder, manslaughter and a variety of other felonies and misdemeanors. By an Act of 1705 the Mayor's Court, like the Court of Quarter Sessions in the County was given power to appoint Overseers of the Poor. By providing this judicial power to the Corporation, Penn had vested in it, or rather in its Mayor, Recorder and aldermen, the same power as the then most powerful of County institutions, the County Court exercising its Quarter Sessions jurisdiction. And even if we take into consideration encroachments on this power of the Quarter Sessions Court by creation of the County Commissioners and acts relative to the judiciary in the early 18th century, the Court remained very important. Examination of the records of the Clerk of Quarter Sessions and Oyer and Terminer and those of the Mayor's Court (and City Court) in records groups 21 and 130, respectively, of the City Archives would indicate the-extent and similarity of the powers of the two courts. It is obvious from the dockets of the Quarter Sessions Court 1753-1838, 1843-1879- and those of the Mayor's Court 1759-1837 that both courts exercised jurisdiction over apprentice cases, the issuance of tavern licenses, and appointment of overseers of the poor in addition to their criminal case loads. The Quarter sessions docket includes appointments of township constables; the Mayor's Court confirmation of elected constables. In contrast to the Mayor's Court Docket, the Quarter Sessions' docket includes appointment of highway supervisors and some entries of road petitions and road viewers' reports. This is not surprising, since in English legal history Quarter Sessions jurisdiction over roads stretches back, at least, to the Tudors, as do most of the other powers listed above. In fact, hearing petitions for roads, bridges and the erection of townships, appointing viewers and receiving their reports was such an important aspect of the Court's jurisdiction that such cases were docketed separately. The scope of this function is evident when we realize that road petitions in the City Archives, from 1685 to 1919 occupy 903 cubic feet, and the road docket, 1685-1953 includes 79 volumes, and this does not even take into consideration volumes of road case records, road jury records or road bond records.

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