Commonwealth ex rel. Attorney-General v. Conyngham , 65 Pa. 76 ( 1870 )

The opinion of the court was delivered, October 20th 1870, by

Thompson, C. J.

The writ in this case was issued upon the relation of the attorney-general, to test the right of the respondent to exercise the office of the recorder of the Mayor’s Court of the city of Scranton, in Luzerne county, under the provisions of an'act incorporating said city, passed the 23d of April 1866, and the supplement thereto, of the 30th of March 1867. At our sitting in July last, in the Eastern District, having heard the arguments in the case previously, we entered judgment on the issue made in favor of the Commonwealth, and consequently of ouster against the respondent, and reserved to the present time the announcement of our reasons for the judgment So entered, some of which we propose now briefly to state.

By the first of the above-mentioned acts, “the inhabitants embraced and residing within the territorial limits of the township of Providence, the borough of Scranton, the borough of Hyde Park, and the borough of Providence, in the county of Luzerne,” is constituted a corporation, by the name and style of the “ City of Scranton,” and divided into twelve wards. In addition to the usual powers conferred on such municipal corporations, a Mayor’s Court, is established by this act, to be holden quarterly by the mayor, recorder and aldermen, or any three of them, the mayor or recorder being one, “ with full power,” says the act, “ to hold and keep a court of record within said city, four times in each year, to continue one week each,” and longer by adjournment, if necessary.

The criminal jurisdiction of this, court is, by the act, extended to “ all such offences committed or arising within the limits embraced by the city, as are triable in other Courts of Quarter Sessions in the Commonwealth,” with the power to forfeit and issue process for the recovery of all recognisances forfeited therein, and “generally,” says the act, “to do all such matters and things within the said city, as any Court of Quarter Sessions of the peace, of and for any county within this Commonwealth, may or can do within any such county.” Thus there is established, within the city, a Court of Quarter Sessions of general jurisdiction, as fully and clearly as any other court is or can be established within any county of the Commonwealth.

In addition to this general criminal jurisdiction, it is provided in the 15th section of the act as follows-

“ That the Mayor’s Court for the city of Scranton shall have original civil jurisdiction to the same extent as is conferred by law upon the Court of Common Pleas of Luzerne county, in all cases where the defendant shall reside within the limits of said city, and also, of all amicable actions where the parties shall, by writing, institute the same in said county, and the remedies, processes, pleadings and costs, shall be similar to like proceedings in the Court of Common Pleas in said county. And the said Mayor’s Court shall also have the same chancery powers and jurisdiction, within the said city, as is now by law invested in the Courts of Common Pleas, and shall also have the same power and jurisdiction within the said city, as is now conferred by law upon the Orphans’ Court of' Luzerne county.” Jurisdiction of divorce cases was afterwards conferred by the supplement to the act of incorporation. Power is also given to this court to issue writs of certiorari to judgments of the aldermen of said city, as other Courts of Common Pleas do.

It possesses all the machinery and officers of other courts of record, viz.: a clerk, seal and records, and its judgments are revisable on appeal and writs of error from this court as are the judgments of other courts of general jurisdiction. It is, therefore, a court of record of general, civil and criminal jurisdiction within its territorial boundaries, beyond a question, and is so expressly declared. Even without this express declaration, it would, from its constitution and powers, be a court of record. Furthermore, the 19th section of the act provides for the removal of all actions, prosecutions and appeals, at the election of the parties, or either of them, from the judgments of justices of the peace pending in the Common Pleas and Quarter Sessions of Luzerne county, having arisen within the limits of the city of Scranton, into the Mayor’s Court for determination and the arbitration laws of the Commonwealth are extended to said court. These facts illustrate most clearly what we have already said, that the court in question is a court of record, of general jurisdiction, as well as a municipal court, and it follows that its judges are required by the Constitution of the Commonwealth, to be elected by the qualified electors included in the boundaries of the city, and cannot be designated and appointed by an- act of the legislature.

The respondent claimed to hold and exercise the office of recorder of the Mayor’s Court thus established, under and by virtue of the 80th section of the act, which provides “that the president judge of the 11th Judicial District of the Commonwealth, or of that district of which the county of Luzerne shall form a part, shall be the recorder of the said city,” and shall receive an annual salary of $500 for his services, payable one-half by the state and the other half by the city. This is the commission relied upon as the authority for exercising the office of recorder of the city by the respondent.

We have shown that the Mayor’s Court is not only a municipal court, but a court of general civil and criminal jurisdiction — is in fact a court of an independent judicial district. Now, in such a case, the Constitution expresses itself in no ambiguous terms. It says in sect. 2, art. 6 (Amendment of 1850):—

“ The judges of the Supreme Court, of the several Courts of Common Pleas, and of such other courts of record as are or shall be established by law, shall be elected by the qualified electors of the Commonwealth in the manner following, to wit, the judges of the Supreme Court by the qualified electors of the Commonwealth at large; the president judges of the several Courts of Common Pleas, and of such other courts of record as are or shall be established by law, and all other judges required to be learned in the law, by the qualified electors of the respective districts over which they are to preside or to actas judges.”

Here is a distinct mandate of the Constitution, requiring the election of the recorder of this court by the people of the district or city, and whatever the Constitution enjoins to be done, in a particular way, amounts to a prohibition of all other modes and methods of doing the same thing: Page v. Allen, 8 P; F. Smith 388. We have shown this Mayor’s Court of Scranton to be a court of record, not only from its nature and necessary inherent powers in view of its jurisdiction, but the express words of the act creating it. The Constitution requires the judges of “ such courts of record as are or shall be established by law, and all other judges required to be learned in. the law, to be elected by the qualified electors of the respective districts over which they are to preside or to act as judges.” That the recorder is a judge, all text-writers who speak of the office affirm. The reference in the argument of the Attorney-General clearly establishes this. In 1 Bac. Abr. 657, it is said that in the Court of Hustings, at Guild Hall, before the lord mayor and sheriffs, “ when any matter is to be argued and determined, the recorder sits as a judge, with the mayor and sheriffs, and gives rules and judgments therein.” In Respub. v. Dallas, 3 Yeates 300, Shippen, C. J., said: “In the strict legal sense of the word, the recorder is a judge; he is a justice of the peace, and he is a constituent and principal member of a court of record.” In a constitutional view, the name is nothing. If it be the recorder’s duty to act as a judge of a court, as it certainly is, under this act of incorporation, the Constitution requires that he be elected by the qualified citizens over whom he is to be the judge. In this state the recorders of the mayors’ courts have always been appointed from persons learned in the law, and have ever been recognised as judges, with fixed salaries and specified terms of office. The act in question, by indirection, recognises this as a necessary qualification. No one can be recorder, by its terms, who is not- the president judge of the Court of Common Pleas of the judicial district, for the time being, in which the county of Luzerne shall be. As such president judge-is required by the Constitution to be learned in the law, it follows, that the recorder’s office being filled by that incumbent, he will be learned in the law also.

Whether, therefore, we regard this Mayor’s Court as within the constitutional category of “such other courts of record as shall be established by law,” or that the recorder is to be regarded as a judge, or that he is required to be learned in the law, in either and all of these contingencies he, by the Constitution, must be elected. These requisites all co-exist in the constitution of this court. The provision, therefore, to confer the office of recorder upon the respondent, directly by Act of Assembly, was a clear violation of the constitutional mandate for an election. He could only fill that office by the choice of the people of the city at the polls. Nor would he have been eligible by election to have filled the office, holding, as he did, the office of president judge of the Common Pleas of Luzerne county. Section 2 of art. 5 of the Constitution prohibits judges holding “ any other office of profit under the Commonwealth” during their continuance in office, and we have seen that a salary is attached to the office of recorder in this case.

But it was contended in argument that the respondent, having been elected president judge of the Common Pleas of Luzerne county, by the electors of the territory embraced by the city of Scranton, in common with the other portions of the county, he was therefore an elected recorder in the sense of the Constitution. This argument concedes the necessity of an election. But how, by one election, he could hold two distinct and independent offices, such as president judge of the Common Pleas and recorder of the Mayor’s Court, is not so clear. We think the position totally inadmissible in its application to the question in hand, and needs no argument to refute it. By such a process every township in the county might be included in mayors’ courts, and the judicial business, diverted from its legal centre, come to be administered in isolated portions of the county. We should not fully protect and conserve the Constitution of our Commonwealth, as we are bound to do, were we capable of yielding to such suggestions. Nor ought we to be deterred from giving full scope to every of its provisions by appeals to consequences arising from its misinterpretation and consequent violation. Were such considerations to prevail, the instrument in time would disappear altogether by attrition of repeated encroachments, and its very existence become traditionary. But we by no means concede the consequences anticipated and deprecated in the argument of the respondent’s counsel. What they may be, is not before us. It is time enough to treat of them when they come before us. In nothing said in this opinion, is it in the least intended to refect on the learned and able president of the Common Pleas, who acted as recorder of the Mayor’s Court of Scranton. That he was mistaken in assuming the discharge- of those duties, we believe, but we fully accord to him the utmost conscientiousness in so doing. Thus have we given some of the reasons inducing the entry of judgment in this case in July last; more might be added, but we regard further elaboration unnecessary. We felt ourselves constrained to decide that the respondent was not legally the recorder of the Mayor’s Court of the city of Scranton, and entered judgment accordingly.