French v. Commonwealth ex rel. Zimmerman , 3 Foster 25 ( 1875 )

Mr. Justice Mercur

delivered the opinion of the court, June 8th 1875.

Article 5, sect. 22, of the constitution declares, “ in every county wherein the populatian shall exceed one hundred and fifty thousand, the General Assembly shall, and in any other county may, establish a separate Orphans’ Court, to consist of one or more judges who shall be learned in the law, which court shall exercise all the jurisdiction and powers now vested in, or which may hereafter be conferred upon, the Orphans’ Courts, and thereupon the jurisdiction of the judges of the Court of Common Pleas within such county, in Orphans’ Court proceedings, shall cease and determine. In any county in which a separate Orphans’ Court shall be established, the register of wills shall be clerk of such court, and subject to its directions in all matters pertaining to his office; he may appoint assistant clerks, but only with the consent and approval of said court. All accounts filed with him as register or as clerk of the said separate Orphans’ Court shall be audited by the court without expense to parties, except where all parties in interest in a pending proceeding shall nominate an auditor, whom the court may, in its discretion, appoint. In every county Orphans’ Courts shall possess all the powers and jurisdiction of a Register’s Court, and separate Registers’ Courts are hereby abolished.”

Thus this section provides for the erection of a new court; when erected all jurisdiction in Orphans’ Court proceedings is taken from the judges of the Court of Common Pleas and vested in this new court. The former clerk of the Orphans’ Court does not become clerk of the new court, but the register of wills becomes its clerk. It is not the former clerk of the Orphans’ Court that the constitution declares shall be subject to the direction of the new court; but it is the new clerk, the register of wills. It is this now clerk, and not the old one, who is authorized to appoint assistant clerks. There is nothing in the section, either expressed or implied, indicating that the clerk of the former Orphans’ Court should become clerk of the new Orphans’ Court for a single hour. The manifest design was to establish a new tribunal for the administration of that branch of the law, and provide for its new officials. The same section that takes from the judges of the Court of Common Pleas all Orphans’ Court jurisdiction, and from a register of wills all power to sit in a Register’s Court, just as clearly withholds from the former clerk of an Orphans’ Court the newly-created powers and duties appertaining to a clerk of the new court.

Hence the Act of Assembly of the 19th of May 1874, providing for the creation of a separate Orphans’ Court in the counties of Philadelphia, Allegheny and Luzerne, substantially re-enacted the constitutional requirement, and in the 5th section declared that the register of wills in each of said counties “ shall be the clerk of such court.”

It is well established and conceded that the relator had no such vested right in his office as to preclude the people from abolishing the office or abridging his term by the adoption of a new constitution inconsistent therewith. It is contended, however, such was not the intention of the present constitution. In other words, it is claimed that the relator is continued in office until the expiration of the term for which he was elected by the 26th section of the schedule. It declares “ all persons in office in this Commonwealth at the time of the adoption of this constitution, and at the first election under it, shall hold their respective offices until the time for which they have been elected oi' appointed shall expire, and until their successors shall be duly qualified, unless otherwise provided in this constitution.”

The closing language of this section clearly indicates that all persons shall not continue to hold their respective offices until the expiration of the term for which they were elected. The saving power of the schedule extends not to officers where it is “ otherwise provided in the constitution.”

The particular court of which the relator had been elected clerk being abolished, his powers and duties as such clerk necessarily fell wi[h it. The continuance of a clerk to a court, after that court has ceased to exist, would present an anomaly that finds no warrant in the constitution or laws of this Commonwealth. Neither the body of the constitution nor the schedule provides for the continuance of an office after all powers and duties are taken therefrom. So far at least as to give to the new Orphans’ Court another official as its clerk, it is, “otherwise provided in this constitution.”

Hence, if we entertained doubts (which we do not) that the office of the relator was substantially abolished and his term abridged by the constitution, it is very clear that he is not thereby transferred to the new Orphans’'Court, nor authorized to perform the duties appertaining thereto.

The respondent was duly elected and commissioned register of wills in and for the county of Luzerne. He entered on the duties of that office and continued to discharge them.. The learned judge therefore erred in rendering a judgment of ouster against him, and it must be reversed.

Judgment reversed,, and judgment in favor of the defendant, with costs.