McGinley v. Scott , 401 Pa. 310 ( 1960 )

Opinion by

Mr. Chief Justice Jones,

These appeals involve a question as to the power of the Pennsylvania State Senate to adopt a resolution at a regular session in an even-numbered year creating a committee of its members for the purpose of making certain specified investigations unrelated to either revenue or appropriations. The 1960 Session of the Pennsylvania Legislature has not yet adjourned sine die but is in recess and is scheduled to reconvene on October 12, 1960.

After the House of Representatives had recessed on June 17, 1960, the Senate adopted a resolution providing for the appointment of a committee of five of its members for the purpose of conducting an investigation into alleged election law frauds in Philadelphia and the conduct of the district attorney of Philadelphia County in respect of such putative offenses.¹ The resolution empowered the committee to hold hearings, take testimony and subpoena witnesses and records; it also required the committee to report its findings and recommendations to the Senate as soon as possible for remedial legislation or other appropriate action. The members of tbe committee were duly appointed by tbe president pro tempore of tbe Senate, as contemplated by tbe resolution, and are tbe defendants in tbe present suit.

Tbe same day that tbe members of tbe committee convened in Philadelphia for tbe purpose of their appointment and began examining witnesses (viz., August 23, 1960), tbe plaintiff, a taxpayer and resident of Philadelphia, filed bis complaint in this case in a court of common pleas of Philadelphia County seeking to restrain tbe members of tbe committee from taking any action, as authorized by tbe resolution, and to enjoin tbe members of tbe committee from making any expenditures of funds of tbe Commonwealth of Pennsylvania. Tbe court granted a rule on tbe defendant committee members to show cause why a preliminary injunction should not issue, returnable August 29, 1980.

On August 26, 1960, the defendants, represented by tbe Attorney General, filed preliminary objections to the complaint, asserting that the Court of Common Pleas of Philadelphia County was without jurisdiction to restrain the defendants from performing any official act, either in their capacity as State officers or as the representatives of an instrumentality of the State, and that jurisdiction of the complaint was exclusively in the Court of Common Pleas of Dauphin County. The defendants also demurred to the complaint on the ground that it did not allege a cause of action cognizable in equity; that the resolution constituting the committee was in accordance with and under the authority of the Pennsylvania Constitution; and that the committee has full constitutional authority to hold hearings and perform all the duties and functions prescribed by the resolution.

Argument was had in the matter on August 31, 1960, before the court below which, on September 12, 1960, filed an opinion and accompanying order overruling defendants’ preliminary objections and enjoining the defendants preliminarily from performing the ^duties imposed upon them by the resolution. The order gave the defendants twenty days within which to answer the complaint on the merits. The Attorney General forthwith appealed the order to this court on September 13, 1960, and contemporaneously petitioned for advancement of the argument. With notice to counsel for the plaintiff, we entered an order on the same day listing the appeal for argument in Pittsburgh on September 26, 1960, which has been had.

The defendants’ preliminary objection that the suit could be brought only in the Court of Common Pleas of Dauphin County is well taken and must be sustained, not, however, because the Court of Common Pleas of Philadelphia lacked jurisdiction, either of subject matter or person, but because the venue of the controversy is exclusively in Dauphin County.

Jurisdiction of subject matter relates to the competency of a court to hear and determine controversies of the general nature of the matter involved, which, in this instance, is a suit in equity for an injunction to enjoin and restrain acts allegedly contrary to law. Jurisdiction of the person is ordinarily acquired by service upon him of the court’s process within the territorial limits of its authority. Venue is the right of a party sued to have the action brought and heard in a particular judicial district. Jurisdiction of subject matter can never attach nor be acquired by consent or waiver of the parties, while venue may always be waived.

Section 13 of the Act of June 16, 1836, P. L. 784, 17 PS §281, conferred general equity jurisdiction on all of the courts of common pleas of the Commonwealth, as follows: “The several courts of common pleas shall have the jurisdiction and powers of a court of chancery ... in such . . . cases as the said courts have heretofore possessed such jurisdiction and powers under the Constitution and laws of this commonwealth.” This jurisdiction unquestionably embraces the power of every court of common pleas of the Commonwealth to prevent or restrain “the coihmission or continuance of acts contrary to law, and prejudicial to the interest of the community, or the rights of individuals.” See Zerbe Township School District v. Thomas, 353 Pa. 162, 168, 44 A. 2d 566, and cases there cited.

However, Equity Buie 1503(c) of the Pennsylvania Buies of Civil Procedure prescribes that “An action against the head of an executive or administrative department, a departmental administrative board or commission or an independent administrative board or commission, or an officer or instrumentality of the Commonwealth may be brought in and only in Dauphin County.” This Rule was adopted and promulgated by virtue of the authority conferred upon this Court by Section 1 of the Act of June 21, 1937, P. L. 19S2, as amended, 17 P.S §61, which, in presently material part, provides that, “. . . the Supreme Court of Pennsylvania shall have the power to prescribe by general rule the forms of actions, process, writs, pleadings, and motions, and the practice and procedure in civil actions at law and in equity for the courts of common pleas . . . Provided, That such rules . . . shall neither abridge, enlarge, nor modify the substantive rights of any litigant nor the jurisdiction of any of the said courts . . .” (Emphasis supplied).

It is plain enough, therefore, that what Rule 1503(c) prescribes is the venue of actions of the type therein referred to, and is not a limitation or a restriction upon the equity jurisdiction of the courts of the Commonwealth outside of Dauphin County. Manifestly, if the holding were to be otherwise, the rule would automatically be invalidated as an excessive exercise of our rule-making power under the Act of 1937, supra.

Thus, venue, unlike jurisdiction, being a matter of procedure, and not substance, is within the competency of the Procedural Rule’s prescription. “Essentially venue is an incidence of procedure. It is part of that body of law which bounds and delineates the forum and the manner and mode of enforcing a litigant’s rights. It is distinguishable from and is not within the field of law, known as substantive, which recognizes, creates and defines rights and liabilities and causes of action.”: Hadlich v. American Mail Line, 82 F. Supp. 562, 563 (1949).

The Act of May 26, 1931, P. L. 191, 12 PS §§101-105, upon which the plaintiff relies, was suspended absolutely by the Rules of Civil Procedure and is without bearing upon the meaning and intent of Rule 1503(c).² The Act of 1931 was made applicable to a “State officer” which the Act defined, in Section 1, as “the head of any administrative department or the chief executive officer of any independent administrative board or commission of the Commonwealth.” Rule 1503(c) contains no such limitation and provides that “An action against ... an officer or instrumentality of the Commonwealth may be brought in and only in Dauphin County.” There appears to be no rational ground for differentiating between members of the legislative, executive and judicial branches of government in order to determine who is included in the definition of “officers ... of the Commonwealth.” A State Senator has been held to be such an officer (see Commonwealth v. Clark, 123 Pa. Superior Ct. 277, 294, 187 Atl. 237) and legislative committees are instrumentalities of the Commonwealth, within the meaning of Rule 1503(c).

A court’s determination that the venue of an action lies within its judicial district, being interlocutory, is not of itself appealable. However, the question of venue is present here on the defendants’ appeal from the preliminary injunction entered against them. Section 1 of the Act of February 14, 1866, P. L. 28, 12 PS §1101, expressly makes the granting of a preliminary injunction appealable. On such an appeal, we look only to see if there were any apparently reasonable grounds for the action of the court below and, ordinarily, will not further consider the merits of the case or pass upon the reasons for or against such action unless it is plain that no such grounds existed or that the rules of law relied on are palpably wrong or clearly inapplicable: Lindenfelser v. Lindenfelser, 385 Pa. 342, 343-344, 123 A. 2d 626. It is apparent that no reasonable grounds exist for the action of the court below, since it erroneously interpreted the law pertaining to the venue of the action.

So much suffices for the vacation of the decree entered by the court below and the dismissal of the plaintiffs complaint and, if only private litigants were concerned, we would proceed no further. But, this is a public matter and, if the disposition of these appeals were to be confined to our decision on the procedural issue of venue alone, the important substantive questions raised and fully argued before us by counsel for the plaintiff and by the Attorney General representing the appellant committee members, could immediately be relitigated in the Court of Common Pleas of Dauphin County, whose final decree would then be appealable to this court and we would again have before us with consequential delay the same fundamental problems. In that situation, and inasmuch as an early final decision on the merits by this court would appear to be in the public interest, we shall now consider and pass upon the substantive questions raised on these appeals, as well as the scope of the resolution which the record brings before us.

Article II, Section 4, of the Pennsylvania Constitution provides that “At regular sessions convening in even-numbered years the General Assembly shall not enact any laws, except laws raising revenue and laws making appropriations.” The court below concluded that the Senate resolution here involved is an unconstitutional attempt by the Senate to enact a law. With that conclusion we cannot agree. Article II, Section 4, restricts the type of “laws” that may be enacted by the legislature at a regular session in an even-numbered year. It has no reference to, nor does it limit, any power of either House of the General Assembly except in respect of the enactment of laws. For example, this constitutional provision does not, as counsel for the plaintiff concedes, restrict the power of the Senate to approve appointments made by the Governor. Neither does it limit the right of the legislature to authorize committee investigations for any proper purpose. The right to investigate in order to acquire factual knowledge concerning particular subjects which will, or may, aid the legislators in their efforts to determine if, or in what manner, they should exercise their powers, is an inherent right of a legislative body, ancillary to, but distinct from, such powers. It is immaterial that laws drafted as a result of the legislative investigation can not be passed at the session at which the committee was constituted.

Moreover, the differences between laws and resolutions are fundamental. A law is a bill that has been passed by a majority of the members of both Houses of the General Assembly and has either been signed by the Governor or has not been acted upon by him within the time prescribed by the Constitution after its passage by the legislature, or if it has been vetoed by the Governor, has again been passed by both Houses with an approving vote of at least two-thirds of the members of each House. Resolutions, on the other hand, may be adopted by either one, or both, of the Houses of the General Assembly and do not require the Governor’s signature or approval to validate them and are not subject to veto by the Governor. In Scudder v. Smith, 331 Pa. 165, 170, 200 Atl. 601, this court, in pointing out the difference between a law and a resolution, said: “Section 1 of Article III of the Constitution provides: ‘No law shall be passed except by Bill, and no Bill shall he so altered or amended on its passage through either House as to change its original purpose.’ In the Southwark Bank v. The Commonwealth, 26 Pa. 446, 450, this court said: ‘A bill is the draft or form of an act presented to the legislature, but not enacted. An “act” is the appropriate term for it after it has been acted on by, and passed, the legislature. It is then something more than a draft or form. It has a legal existence as “an act” of the legislative body, because it becomes a law, without further action from any other branch of the government, if the executive takes no measures to prevent it.’ A ‘Bill’ has been defined to be ‘a form or draft of a law presented to a legislature for enactment’: Webster’s New International Dictionary. A ‘Joint Resolution’ has been defined by the same authority to be ‘A resolution adopted jointly by the two branches of a legislative body.’ A ‘resolution’ by the same authority has been defined as ‘A formal expression of the opinion or will of an official body or a public assembly, adopted by vote; as a legislative resolution.’ When the Constitution provided that ‘no law shall be passed except by bill,’ it meant by ‘a form or draft of a law submitted to the legislature for enactment’; it did not recognize a mere ‘formal expression of opinion’ as adequate to the creation of a law.”

The difference between a law and a legislative resolution is plain enough; and, it is only “laws” that come within the Constitutional restriction of Article II, Section 4. We accordingly hold that the Senate resolution involved in this case is not a “law” within the purview of Article II, Section 4, of the Pennsylvania Constitution, and that the adoption of the resolution at the 1960 regular session was not thereby prohibited.

The clause in the Senate resolution which assumes to direct the committee members to investigate “into the actions of the District Attorney of Philadelphia County with respect [to charges of alleged election frauds in that county]” is beyond the constitutional power of the State Senate to authorize. And, it is not only within the unquestionable province, but is the bounden duty, of the judiciary to so declare when occasion requires.

As already mentioned, the justification for a legislative investigation, whether conducted by one or both of the houses of the General Assembly, is the ascertainment of facts and other relevant information to aid the members of the legislative bodies in formulating, drafting and enacting remedial or other beneficial laws. Such is the predominant legally permissible purpose of a legislative investigative committee. There are, however, several ancillary purposes. For instance, the Senate may properly, as it sometimes does, constitute a committee of its members to investigate the qualifications of gubernatorial appointees whose confirmation requires Senate approval. The House may also investigate the conduct of any governmental official in furtherance of a possible exercise of its constitutional jurisdiction to institute impeachment proceedings. Article VI, Section 1, of the Pennsylvania Constitution expressly provides that “The House of Bepresentatives shall have the sole power of impeachment.” And, in this same connection, Section 2 of Article VI provides that “All impeachments shall be tried by the Senate ... [and] no person shall be convicted without the concurrence of two-thirds of the members present.” Thus, the members of the Senate actually sit in judgment on the truth or falsity of impeachment charges. It Avould not only be unthinkable but an unconstitutional denial of procedural due process for the Senate to investigate into the conduct of an official and then sit in judgment on his guilt or innocence of impeachment charges arising out of the investigation.

Moreover, the legislature could, not constitutionally enact any law to suspend or remove from office or otherwise punish in any way the district attorney of any county even if an investigation should happen to reveal that the particular district attorney was in some manner derelict in his duty. A district attorney is a constitutional officer, elected by the people of the county which he serves (Article XIY, Sections 1 and 2 of the Pennsylvania Constitution) and, for any misfeasance or malfeasance in the discharge of his public duties, the criminal law, with its penal sanctions, provides the appropriate procedure for an adjudication of his guilt or innocence.

Since the Senate is without constitutional power to investigate the conduct of a particular district attorney, the proposed investigation of the district attorney of Philadelphia County, pursuant to the resolution here involved, if carried out, would not only serve no useful purpose but would do violence to the principles of our constitutional form of government. There is no such thing in this country as “parliamentary sovereignty.” And, legislative investigations must be kept strictly within their proper bounds if the orderly and long-established processes of our coordinate branches of government are to be maintained.

While we do not approve the decree of the court below, as our order of reversal evidences, we wish to make it clear, in view of the illy considered, or at least unthinking, criticisms lately leveled at the court below for its decision in this very case, that the lower court’s action was not a “judicial impertinence” but was within its judicial authority.

Decree vacated and complaint dismissed; the parties to pay their respective costs.

1 The resolution in full reads as follows:

“Resolved, That the President Pro Tempore of the Senate appoint five members of the Senate who shall constitute a committee to investigate into the charges of election frauds in Philadelphia, and also investigate into the actions of the District Attorney of Philadelphia with respect thereto, and be it further

“Resolved, That the committee shall also investigate similar charges in any other county in which a district attorney has failed or refused to take action or has appeared to have acted in a negligent manner and the Chairman of the Committee has received written notice or complaint of such charges; and be it further

“Resolved, That the committee may hold hearings, take testimony and make its investigations at such places as it shall deem necessary within this Commonwealth. It may issue subpoenas under the hand and seal of its chairman, commanding any person to appear before it and to answer questions touching matters properly being inquired into by tbe committee and to produce such books, papers, records and documents as the committee deems necessary. Such subpoenas may be served upon any person and shall have the force and effect of subpoenas issued out of the courts of this Commonwealth. Any person who wilfully neglects or refuses to testify before the committee or to produce any books, papers, records or documents shall be subject to the penalties provided by the laws of the Commonwealth in such cases. Each member of the committee shall have power to administer oaths and affirmations to witnesses axipearing before the committee; and be it further

“Resolved, That the committee report its findings, together with its recommendations, for remedial legislation or other appropriate action as soon as possible.”

2 The Act of 1931 is basically a venue statute. In dealing with such statutes, in cases where the differentiation of “venue” and “jurisdiction” was not material to the decision, courts have at times inappropriately used the terms interchangeably. See, e.g., Merner v. Department of Highways, 375 Pa. 609, 101 A. 2d 759.