Commonwealth v. Hyneman , 242 Pa. 244 ( 1913 )

Opinion by

Me. Justice Beown,

The Constitution is the supreme law of the State, and the duty of the judiciary is to determine whether any legislation violates or fails to conform to its provisions. It forbids the legislature to do certain things, and expressly authorizes others. When the legislature does what is forbidden, or undertakes to do what is authorized, but in a way that is violative of the constitutional direction, the duty of the courts to pronounce such legislation void is not to be evaded. In doing so judges speak not for themselves, but for the people, so that the compact which they made with one another for their own self-government may continue to be supreme in all legislation. That supremacy is to be maintained only through the judiciary, and, in the discharge of the abiding duty resting upon courts to maintain that supremacy, there is involved a responsibility so great that no statute ought to be declared void except for clear and palpable violation or disregard of the Constitution. “An act of the legislature is not to be declared void, unless the violation of the Constitution is so manifest as to leave no room for reasonable doubt”: Commonwealth ex rel. O’Hara v. Smith, 4 Binn. 117. This utterance of a hundred years ago has been repeated times without number, down to the present hour, without shadow of turning. In Sharpless v. Mayor of Philadelphia, 21 Pa. 147, it is thus emphatically reannounced: “We can declare an act of assembly void, only when it violates the Constitution clearly, palpably, plainly; and in such manner as to leave no doubt or hesitation on our minds.” At the same time it is to be remembered that the Constitution is not to receive a technical construction, but is to be studied in the light of ordinary language, and such a construction is to be placed upon it as we may infer was placed upon it by the people whose bond it is: Cronise v. Cronise, 54 Pa. 255; Philadelphia, Morton & Swarthmore Street Railway Company’s Petition, 203 Pa. 354. Bearing these rules in mind, we proceed to consider and dispose of the very important question before us.

On March 29, 1913, the governor of the Commonwealth approved an act of assembly entitled “Act providing for another judge in each of the Courts of Common Pleas of Philadelphia County.” The two sections of the act are as follows: “Section 1. Be it enacted, etc., That it shall be the duty of the governor to appoint to each of the five Courts of Common Pleas of Philadelphia County a competent person, learned in the law, to be a judge, in addition to the judges now composing said courts. The five persons so appointed shall hold their offices until the first Monday of January next, and shall have the same powers, authority, and jurisdiction, and receive the same compensation, as the other judges of the said courts, respectively. Section 2. That on the day of the next municipal election, and thereafter at such time and times as may be prescribed by the Constitution of this Commonwealth, the qualified electors of the County of Philadelphia shall elect five competent persons, learned in the law, to serve as additional judges of the said Courts of Common Pleas, one in each court, who shall be commissioned and hold office for the term provided by the Constitution, and shall have the same powers, authority and jurisdiction, and receive the same compensation as the other judges of the said courts, respectively.” In pursuance of this act Samuel M. Hyneman, the defendant, was appointed to the office of judge of the Court of Common Pleas No. 1, in and for the County of Philadelphia, for a term beginning June 4, 1913, and ending on the first Monday of January, 1914. He took the oath of office required by the Constitution on June 9, 1913, and has since continued and is now in the possession and exercise of the said office. This proceeding was instituted to determine his right to hold that office, the right to do so being challenged on the ground that it was created in violation of Section 6, Article V, of the Constitution, as amended in 1911. The first section, as so amended, is as follows with regard to the County of Philadelphia: “In the County of Philadelphia all the jurisdiction and powers now vested in the District Courts and Courts of Common Pleas, subject to such changes as may be made by this Constitution or by law, shall be in Philadelphia vested in five distinct and separate courts of equal and co-ordinate jurisdiction, composed of three judges each. The said courts in Philadelphia shall be designated respectively as the Court of Common Pleas, number one, number two, number three, number four, and number five, but the number of said courts may be by law increased, from time to time, and shall be in like manner designated by successive, numbers. The number of judges in any of said courts, or in any county where the establishment of an additional court may be authorized by law, may be increased from time to time, and whenever such increase shall amount in the whole to three, such three judges shall compose a distinct and separate court as aforesaid, which shall be numbered as aforesaid. In Philadelphia all suits shall be instituted in the said Courts of Common Pleas without designating the number of the said court, and the several courts shall distribute and apportion the business among them in such manner as shall be provided by rules of court, and each court, to which any suit shall be thus assigned, shall have exclusive jurisdiction thereof, subject to change of venue, as shall be provided by law.”

By the third section of the judiciary article of the Constitution this court is given original jurisdiction in cases of “quo warranto as to all officers of the Commonwealth whose jurisdiction extends over the State”; and a Common Pleas judge is such an officer: Commonwealth ex rel. Attorney General v. Dumbauld, et al., 97 Pa. 293.

The right of the defendant to continue in his office depends upon the validity of the act of the legislature under which he was appointed. The touchstone by which that validity is to be tested is the above-quoted section of the Constitution. A clear, dominant thought of the framers of the Constitution, and of the people who adopted and amended it, was that each Court of Common Pleas of the County of Philadelphia should be composed of three judges. While the number of these courts may be increased from time to time, each additional court must be composed of three judges. Three judges are the unit of a Court of Common Pleas in the said county. The number of judges in any one of these courts may be increased from time to time, as the public needs or the prompt administration of justice may require, but the sentence in Section 6 of the judiciary article authorizing such increase provides consistently with what precedes — “whenever such increase shall amount in the whole to three, such three judges shall compose a distinct and separate court as aforesaid, which shall be numbered as aforesaid.” What is the unmistakable meaning of these words? If they mean, as learned counsel for defendant contend, an increase in any one of the existing courts, why were the words “in the whole” inserted? The meaning contended for would have been expressed by the omission of those words, for the sentence would then read thus: The number of judges in any of said courts, or in any county where the establishment of an additional court may be authorized by law, may be increased from time to time, and whenever such increase shall amount to three, such three judges shall compose a distinct and separate court as aforesaid, which shall be numbered as aforesaid. But the sentence is not so written, and the phrase “in the whole” cannot be regarded as mere idle words. They were inserted for some purpose, and that manifest purpose was to provide that, whenever three judges should be added to the judicial force of the Courts of Common Pleas of Philadelphia County, such three judges without regard to the particular court or courts in which they might be made additional judges, should constitute the unit of a new, distincl. and separate court, to be established by the same legislature that created the third additional judge. In establishing such a distinct and separate court, to be composed of the three additional judges, the first two appointed would merely be transferred to the new court, there to meet the third and proceed with him to organize that court in accordance with the legislative directions. Neither of the first two judges would be ousted from Iiis office, but each would go from his court to another of the same jurisdiction, to which he knew at the time be was appointed or elected as an additional judge he would go, under the Constitution, whenever he should become one of the three newly created judges. But for the words, “whenever such increase shall amount in the whole to three,” the Act of March 29, 1913, would not be violative of the Constitution; but these words are there, and not without a purpose. That purpose was the creation of a distinct and separate court, whenever the increase in the whole number of judges in the county should amount to three. No transposition of the words “in the whole” is needed to understand their meaning. Standing just as they are, with no transposition of a word in the same sentence, they are susceptible of but one meaning. If the defendant is to be permitted to hold his office, they must either be eliminated altogether or be read as referring only to each separate and distinct Common Pleas Court. That this court has no power to eliminate or disregard them, not even the most zealous advocate of the Act of 1913 would pretend; and to ask us to say that they ought to be read as meaning an increase of three in any one court is an assumption that neither the intelligent framers of the Constitution nor the people who ratified it understood the use or meaning of plain words. If they had intended to say that an increase of three “in the whole” meant an increase in the number of judges in any one court, it would have been so written in the Constitution, awkward as the expression might be; for how could an increase of three in any one court be anything but a whole increase of three in that court? It is not so written in the Constitution, and we dare not give any other meaning to the words “in the whole” than the whole number of judges in the county. In so doing the clear intendment of the sixth section of the Constitution is given effect, to wit, for every three judges there is to be a distinct and separate court. It may be that, if the act under consideration had provided for an increase of but three judges — one in each of three of the existing five courts — they would, upon their appointment, have automatically become Court of Common Pleas No. 6 in and for the County of Philadelphia, for the constitutional provision is that, “whenever such increase shall amount in the whole to three, such three judges shall compose a distinct and separate court as aforesaid”; but with five new judges created at one time, who is now to say which three of them are to compose a distinct and separate court? This surely could not be a question for ns, especially in view of the mandatory words of the Act of 1913, that, at the next municipal election, “the qualified electors of the County of Philadelphia shall elect five competent persons, learned in the law, to serve as additional judges of the said Courts of Common Pleas, one in each court.” If the act could be upheld, there would be one additional judge elected to each of the five existing courts.

.Under the construction which we are asked to place upon the section of the Constitution under consideration, there might be ten additional judges created for the County of Philadelphia — two for each.of the existing courts — and a sixth court could not be established until eleven additional new judges had been created. The mere statement of this proposition ought to be all sufficient to carry conviction to any one that such a condition was never contemplated, the clear intendment of the Constitution, if “studied in the light of ordinary language,” being that every three judges in that county shall constitute a court.

It may be said that & difference of opinion among us as to the constitutionality of the Act of March 29, 1913, ought of itself to create a doubt in the minds of a majority to be resolved in favor of the constitutionality of the act. The answer to this is, that the supreme duty resting upon every member of the court in every case, without regard to the character of the question involved —from performance of which duty he cannot shrink — is to record his considerate judgment, when reached without doubt or hesitation and after having given all due consideration to the conflicting views of colleagues. In many notable cases, familiar to all, where federal or state legislation has been pronounced unconstitutional, dissenting opinions have been filed by learned judges who differed from the majority — in some instances a bare majority of the court — but such difference of opinion has never been regarded as a sufficient reason for inducing the majority to change their view or withhold their judgment. A very recent illustration of this is Adinolfi v. Hazlett, 242 Pa. 25, in which an opinion was filed at the last session of this court, pronouncing an act of assembly unconstitutional, though one of the five judges who heard the case filed a dissenting opinion.

The number of judges in the County of Philadelphia may be increased by the legislature from time to time, but only in the way the Constitution permits. This is conceded. The direction of that instrument was not followed in the passage of the Act of 1913, and the judges appointed under it do not, therefore, have a tenure to their offices.

And now, to wit, July 10, 1913, after hearing and upon due consideration, judgment is entered for the Commonwealth; and it is further ordered and adjudged by the court that the said Samuel M. Hyneman be and he is hereby ousted from the office of judge of the Court of Common Pleas No. 1 of the County of Philadelphia, and from the franchises, fees and emoluments thereof, and that he pay the costs of this proceeding.