Glancey v. Casey , 2 Pa. Commw. 250 ( 1971 )

Pee Cueiam

Opinion,

Plaintiff, the President Judge of the Municipal Court of Philadelphia, brings this action in mandamus on behalf of himself and his fellow judges against the Auditor General and State Treasurer to compel the payment of warrants alleged to cover the judges’ proper salaries during the period January 1, 1969, to and including June 30, 1969. During that period, the plaintiffs served as judges of the Municipal Court of Philadelphia, “successor” to the Magistrates’ Court, having been duly appointed by the Governor in accordance with the Constitution of 1968. As required by the Constitution of 1968, all had been magistrates in the City of Philadelphia and had been paid by the City of Philadelphia a salary of $12,500 per year, with the chief magistrate receiving $2500 additional, as fixed by the state legislature in the Act of June 15, 1937, P. L. 1743, as amended, 42 P.S. 1138. After their appointments and prior to new legislation, either fixing the new salaries or increasing the old salaries, the plaintiffs submitted vouchers to the defendants requesting compensation at the following rates:

President Judge — $21,000.00 annually, payable $1,-750.00 per month;

Law Judges — $20,000.00 annually, payable $1,666.-67 per month;

Lay Judges — $16,000.00 annually, payable $1,375.-00 per month.

The defendants declined to honor the vouchers as drawn but approved and made payments to the plaintiffs at the rate previously authorized by the Legislature to be paid by the City to the plaintiffs as magistrates. This was done apparently on the basis that the new Constitution provided for payment by the Commonwealth at a rate “as provided by law”. See Article V, section 16(a). Acts were introduced in the Legislature in 1969, variously amended but ultimately passed as the Act of October 17, 1969, P. L. 259, 17 P.S. 711, which fixed the compensation of the plaintiffs at the rates specified in the vouchers but made the salary effective from July 1, 1969. The complaint prays that the defendants be ordered to pay the vouchers for the period January 1, 1969 through June 30, 1969, “crediting against said vouchers the sums already paid to the Judges for the said period.”

Prior to the passage of the Act of October 17, 1969, P. L. 259, 17 P.S. 711, but while it was pending before the Legislature, the plaintiffs brought an action in the Supreme Court of Pennsylvania to direct the defendants to pay the vouchers here in issue. An answer was filed which, in addition to the other matters of defense, pled in paragraph 10 that a bill for the payment of salaries as prayed for in the complaint “had passed the House of Eepresentatives on June 17, 1969, and had passed first consideration in the Senate on July 22, 1969, and (was) presently on second consideration in the Senate.” A copy of the Act was attached to the answer. The implication was that there was no need for such extraordinary judicial action when the Legislature was performing its duty, albeit in a slow process. The Supreme Court of Pennsylvania entered an order on August 18, 1969, “Petition denied”. On September 9, 1969, the Senate amended the bill to make its payments begin on July 1, 1969, rather than January 1, 1969. As thus amended, the bill passed and was signed by the Governor on October 17, 1969.

It might be argued that the above decision of the Supreme Court was res judicata. It clearly would be but for the intervening amendment and passage of the Act of October 17, 1969, P. L. 259, 17 P.S. 711. It is forcefully argued by defendants that such a decision by the Supreme Court is binding precedent on this Court.

The plaintiff seeks an extraordinary remedy in at least two respects — it asks this Court to declare an Act of the Legislature unconstitutional but not to strike it from the law. It would have the Act continue to operate in all respects but the one here in question and would have this Court substitute January 1 for July 1 in the Act. No precedent has been cited for such a decision nor have we been able to find any. As an alternative to achieve the same result, the plaintiff would have this Court determine that no salary or an inadequate salary had been supplied by the Legislature for the period January 1 to and including June 30, 1969, and to exercise the broad general powers of the judiciary to order the fiscal officers of the Commonwealth to pay judicial salaries which the Legislature had failed to supply in accordance with its constitutional responsibility. No precedent has been cited for this proposition. The case appropriately relied upon by plaintiffs is Commonwealth ex rel. The Attorney General v. Mathues, 210 Pa. 372, 59 A. 961 (1904). The report of this case occupies 59 pages in the official reports. Procedurally, it is not unlike the instant case in that it was an action originating in the Common Pleas Court of Dauphin County sitting as the Commonwealth Court. The action was brought for the benefit of the judges of the Commonwealth by the Attorney General of the Commonwealth against the State Treasurer who refused to pay the judges an increase in salary voted by the Legislature and approved by the Auditor General. The Commonwealth Court awarded the writ of mandamus and was sustained by the Supreme Court. The big distinction between the Mathues case and the instant case is that in the Mathues case, the Legislature had spoken to award the increase and the Court was directing the State Treasurer to comply with the legislative mandate. In the instant case, the plaintiffs would have this Court direct the State Treasurer and the Auditor General to disregard the legislative mandate.

There is substantial precedent for the courts of common pleas to order the county officials to pay reasonable court expenses in the absence of legislation or action by the local authorities. These cases are collected and ably discussed by Justice Allen M. Stearne in Leahey v. Farrell, 362 Pa. 52, 66 A. 2d 577 (1949).

The right to this relief can be justified only on the broad grounds of separation of powers and the inherent right of the judiciary. In our opinion, just as the cause may be, the appropriate forum in which it can be resolved in favor of the plaintiffs is the forum selected originally by the plaintiffs, i.e., the Supreme Court of Pennsylvania. The Constitution, in Article Y, section 2, provides “. . . in this (Supreme) Court shall repose the supreme judicial power of the Commonwealth”. Surely, it should take nothing less than the supreme judicial power of the Commonwealth to direct the Auditor General and the State Treasurer to pay warrants “provided by law”, which law is supplied by the supreme judicial authority itself rather than by the supreme legislative authority, i.e., the Legislature.

Accordingly, the preliminary objection to the plaintiff’s complaint in mandamus in the nature of a demurrer is sustained and judgment is entered for the defendants.