Daly v. Hemphill ( 1963 )

Dissenting Opinion by

Me. Justice Cohen :

Article Y, §1 of the Pennsylvania Constitution provides: “1. Judicial power. The judicial power of this Commonwealth shall be vested in a Supreme Court, in courts of common pleas, courts of oyer and terminer and general jail delivery, courts of quarter sessions of the peace, orphans’ courts, magistrates’ courts, and in such other courts as the General Assembly may from time to time establish.” Thus the magistrates’ courts are designated as courts in which the judicial power of this Commonwealth is vested.

Article V, §12 of the Pennsylvania Constitution further contains constitutional directives pertaining to the magistrates’ courts in Philadelphia, and further emphasizes the constitutional scheme of including the magistrates’ courts in the judicial system. McNair’s Petition, 324 Pa. 48, 187 Atl. 498 (1936), reaffirms the recognition in this Commonwealth of the office of magistrate as a judicial office.

The corrupt and maladministration of the offices of magistrate which existed prior to 1937 and the investigations which disclosed the improper activities on the part of certain magistrates undoubtedly lead to the enactment of the Magistrates’ Court Act of 1937 providing for the appointment of a chief magistrate by the governor. This violation of the independence of the judiciary, both from the executive and legislative, was unquestioned—not because of its acknowledged constitutionality but rather—because the atmosphere of the time called for a revision of the laws pertaining, to the functioning of the Magistrates’ courts in Philadelphia.

The designation of a chief justice of our Court, the president judge of the various courts of common pleas, the president judge of the orphans’ courts, presiding judge of the county courts, are all accomplished either in conformance with a mandate of the Constitution or by a procedure which leaves them free from the intrusion of either the executive or legislative branch of our government.

I would determine this litigation by striking down the appointment of the chief magistrate by the governor of our Commonwealth as an unconstitutional intrusion.

Directing my attention to the opinion of the majority, this appeal raises two questions: (1) whether the Magistrates’ Court Act of 1937, as amended, confers the general power to appoint employees upon the board of magistrates or upon the chief magistrate; and (2) if the general power of appointment resides in the board of magistrates, whether the legislature in sections 36 and 38 of the Act has specifically granted to the chief magistrate the power to appoint stenographers and stenographic clerks. I would hold that the power of appointment resides in the board of magistrates except where, as in sections 36 and 38 of the Act, the legislature has specifically provided otherwise.

A reading of the Magistrates’ Court Act of 1937 makes it clear that the board of magistrates and not the chief magistrate possesses general executive and rule-making powers. It is the board which has the power to prescribe rules and regulations for the conduct of the magistrates’ courts. It is the board which has the power , “to investigate . . . any and all matters pertaining to the courts presided over by the magistrates, the administration thereof, and the official conduct of any person or persons connected therewith, and take such lawful action in respect thereto as it may deem- necessary and proper in the premises.” (Emphasis supplied)..

The majority-relies on the denomination of the chief magistrate as the “administrative representative and executive head of said board.” Its extended and strained discussion of the term “executive” ignores the important fact that the chief magistrate is only the executive head of the board of magistrates—similar to the executive head of a corporate board of directors— and not the executive head of the whole magistrates’ system. As executive head of the board, his powers, except where otherwise specifically provided in the Act, are those conferred upon him by the board of magistrates. In this connection, it is quite significant that - the legislature has specifically granted to the chief magistrate the power to appoint a. chief clerk and a deputy stenographic clerk. If, as the majority contends, the chief magistrate had general power to make appointments, these specific grants of power would be totally unnecessary.

The majority also makes the argument that the legislature, aware of the prior practice under the Magistrates’ Court Act of 1937, incorporated this practice sub silentio into the Traffic Court Act of 1957. Without commenting on the validity of this type of argument, I would merely point out that the prior practice whereby the chief magistrate made appointments was based not upon an assertion by the chief magistrate of such power under the 1937 Act, but rather was based on a delegation of power to him from the board of magistrates through its rule-making powers, which is frankly admitted by the majority. Hence this argument of incorporation cuts against the result reached by the majority.

Of course, the legislature in the Magistrates’ Court Act has specifically granted certain powers to the chief magistrate as well as to the individual magistrates. I agree with the majority’s interpretation of sections 36 and 38 of the Act (if constitutional) as giving the chief magistrate power to appoint stenographers and stenographic clerks.

Accordingly, I dissent.