Reid v. Smoulter , 128 Pa. 324 ( 1889 )

Opinion,

Mr. Justice Clark:

The general rule laid down by the learned judge of the court below as to the effect of an amendatory statute, is undoubtedly correct. A statute amendatory of another, declaring that the former shall read in a particular way, must, in general, be held to repeal all provisions not retained in the altered form. All matters not incorporated into the amendment, the latter must be held to have repealed. The authorities referred to in the opinion of the court are full upon this point, and many more might be cited in support of this general rule of construction. But assuming this, and that the amendatory section of the act of 1887 is actually merged in the original statute of 1874, a question arises, we think, upon the power of the legislature to repeal the provisions as to the salary of the assistant clerk of any separate Orphans’ Court, duly established, without making any other provisions in that behalf.

The 22d section of the 5th article of the constitution provides that “in every county wherein the population 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 vested in, or which may hereafter be conferred upon the Orphans’ Courts; and thereupon the jurisdiction of the judges of the Courts of Common Pleas within such county, in Orphans’ Court proceedings, shall cease and determine.” It further provides that “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,” and that “he may appoint assistant clerks, but only with the consent and approval of said court.” By the 31st section of the Schedule, it was made the duty of the general assembly, at its first session, or as soon as may be after the adoption of the constitution, to pass such laws as might be necessary to carry the same into full force and effect.

At the time of the adoption of the constitution, the only counties of the commonwealth containing a population exceeding 150,000 were the counties of Philadelphia, Allegheny, and Luzerne; and in obedience to this mandate of the constitution, provision was made by the act of May 19,1874, for the establishment of separate Orphans’ Courts in each of the three counties named; the salaries of the clerk and of the assistant clerk were adjusted, and separate Orphans’ Courts were thereupon duly organized under the constitution and laws of the commonwealth in the said several counties. The legislature in the passage of this act of May 19, 1874, simply complied with a command of the constitution, and thereby caused this provision of the constitution to come into effect. That act withdrew from the judges of the Court of Common Pleas of these respective counties the right to exercise the power of an Orphans’ Court, and vested these powers in. an independent and exclusive jurisdiction. We think it would not have been competent for the legislature, by a repeal of this act, to defeat and set aside the constitutional tribunals thus established; for these courts, although put into actual operation by the legislature, were created by and now exist under the authority of the constitution itself. Having done what the constitution required, it would not have been in the power of the legislature wholly to undo it. The constitution itself set up this system of separate Orphans’ Courts, and it is for the legislature to regulate and maintain, not to destroy it. The constitution is the paramount law; it is above legislatures and courts; wh.at is therein ordained and established cannot be set aside by a simple act of legislation.

James McGreevy, Esq., the clerk of the Orphans’ Court of Luzerne county, had an undoubted right, by and with the consent and approval of that court, to appoint Henry A. Reid the assistant clerk. This right was vested in him by the very terms of the constitution, and upon receiving the appointment and becoming duly qualified, Henry A. Reid was entitled to perform the duties of that office, and to receive the emoluments thereof. It will not be seriously contended that the legislature had any power to pass upon the necessity for the appointment, for this discretion is expressly committed to the clerk, who is to act with the consent and approval of the court. Nor will it be pretended that the assistant clerk might be removed from his office' by a simple act of legislation; there was no power competent to remove him, save the tribunal which conferred the appointment.

If the legislature may repeal the act adjusting the salary, without making any further or other provision in that behalf, it may practically abolish the office. If the assistant clerk may thus be deprived of the office, the clerk of the court and the judge are both liable to the same fate, and in this way, that might be done by indirection which could not be done directly. It is true that the salary is a matter which, by the constitution, is submitted to the discretion of the legislature. In the exercise of that discretion, by the act of 1874 the salary was fixed at $1,500, and this rule of compensation will continue until, by some other statute, it is changed. The salary first fixed may perhaps be increased or diminished, subject to the restriction of the 13th section of the 3d article of the constitution, as the legislature should from time to time see fit to provide, but to repeal .the provision for a salary altogether, is to remove the clerk from his office.

It may be said, however, that after the organization of the separate Orphans’ Court of Luzerne county, the county of Lackawanna was taken from Luzerne, thereby reducing its population, according to the census of 1880, below 150,000, and that in consequence thereof, although within the power of the legislature, the constitution did not require the continuance of a separate Orphans’ Court in Luzerne county. It may be, that, in view of the reduction of the population, it would have been competent for the legislature to restore the jurisdiction to the judges of the Court of Common Pleas, in all matters pertaining to the Orphans’ Court. We will decide that question when it arises, but the legislature did not do so. The judges of the separate Orphans’ Courts, as constituted under the act of 1874, at the time of the passage of the act of 1887, were and still are the judges of the only court having jurisdiction of the estates of decedents and minors, in the county of Luzerne, and it would be clearly incompetent to repeal the act authorizing the payment of these salaries, or the salaries of the clerks of that court, without making any other provision for them, or to expel them from office, without cause, and without providing the means for the exercise of these powers by some other lawfully constituted tribunal.

The constitution creates the office of assistant clerk, and the legislature fixes the salary; but the latter cannot deprive him of his office by refusing him his salary. In Commonwealth v. Gamble, 62 Pa. 343, there was an effort to remove a judge from his office by doing away with his district; and, although the apportionment of the districts was clearly within the power and discretion of the legislature, yet it was held that as the judge held his office under the constitution the general assembly could not, by a mere legislative act, remove him from the exercise of the duties and" jurisdictions attaching to his office. So in this case, the adjustment of the salary is given to the legislature, yet as the clerk derived his office directly from the constitution, the legislature cannot expel him from it by repealing the act fixing the amount of his salary.

We are of opinion that the act of April IB, 1887, P. L. 22, already referred to, is not in conflict with the constitution, because special or local in its operation. The constitution recognizes a class of counties, in each of which it is the duty of the legislature to establish a separate Orphans’ Court, and the act plainly applies to all the counties of this class. Nor do we regard the title as defective; it is entitled “ An act to amend the fifth section of an act relating to the organization and jurisdiction of the Orphans’ Court, and to establish a separate Orphans’ Court in and for counties having more than one hundred and fifty thousand inhabitants, and to provide for the election of judges thereof, approved May 19, 1874, as to appointment of assistant clerks of the said court, and fixing the salaries of the same,” etc. Under all the cases, this is amply sufficient. We are clearly of opinion, however, that the act of 1874, so far as it relates to Luzerne county, is not repealed thereby.

The order discharging the rule to show cause is therefore reversed, and judgment entered for the plaintiff below, that an alternative mandamus be issued. Record remitted for further proceedings.