Commonwealth ex rel. Hite v. Swank

Mr. Justice Ag-new

delivered the opinion of the court, July 3d 1872.

According to the practice recognised by this court, in Murphy v. Farmers’ Bank, 8 Harris 415, the respondent has moved to quash this writ. Subject to this motion, he also filed his answer to the writ; and the parties have been heard on the motion to quash, and also upon the questions involved in the answer. We shall, therefore, dispose of both matters in one opinion.

In view of the power of amendment, the objection that the suggestion does not set forth the facts with sufficient legal precision is not tenable. The suggestion is defective in the want of an averment of the title of the relator to exercise the duties and receive the fees of the clerk of the District Court of Cambria county. But the relator has set forth the source of his title, by stating his election and commission as prothonotary of the Court of Common Pleas of Cambria county and clerk of the Court of Quarter Sessions. He ought then to have averred that the Act of 13th April 1869, creating the District Court of Cambria county, conferred upon him as such prothonotary and clerk the right to perform the duties and receive the fees appertaining to the clerk of the District Court. But having set forth the foundation of his title, the averment may be supplied by amendment, which we now permit to be made. The case of The Commonwealth v. Commercial Bank, 4 Casey 373, is a direct authority on this point.

The objection that the writ can issue only at the suggestion of the attorney-general, and not of a private relator, is not sustained. This would be true according to The Commonwealth v. Cluley, 6 P. F. Smith 270, and the cases cited on p. 272, had the relator here shown no private interest in himself. But primá facie, he has an interest to oust the defendant in the apparent title conferred upon him by the act, to perform the duties and receive the fees of the office. Whether he or any one else has a truly valid title to the office of clerk of the District Court, is not a question upon this motion to quash, there being a primá facie title in the relator.

The objection that this writ should have been issued out of the Court of Common Pleas, is not tenable. Whether the relator is a county officer or not, is immaterial, this couyt having jurisdiction in all cases, and the Common Pleas having only concurrent jurisdiction in the cases enumerated in the Act of 14th June 1836. We may in our discretion, and sometimes do decline to entertain original jurisdiction, and leave it to be exercised by the Common Pleas in the cases over which their jurisdiction extends. We do not think it would be proper to decline it in this ease.

The ouster of the relator from the office of clerk of the District Court of Cambria county by a former proceeding, is answered by his subsequent election as prothonotary and clerk of the courts of Cambria county. It may eventually appear that neither he nor the respondent has a valid title to that office; but on the motion to quash, his primá facie title is sufficient to maintain the suggestion.

The motion to quash is refused, and this brings us to consider the merits of the answer.

That the respondent has no title to the office of clerk of the District Court of Cambria county, and is exercising the functions of such alleged office unlawfully, are entirely clear to our minds. In point of fact, the Act of 1869 does not create the office of clerk of the District Court as an independent office or post. It merely directs that the duties appertaining to the clerkship of the District Court shall be performed by the prothonotary of the Court of Common Pleas and clerk of the Quarter Sessions of Cambria county. This is its whole effect. But were the office an independent and existing one, under the terms of the law, no provision has been made for filling it by election. It is contended that this defect in the law is supplied by the third section of the sixth article of the constitution, directing that prothonotaries and clerks of the several courts, recorders of deeds ■ and registers of wills, shall, at the times and places of election of representatives, be elected by the qualified electors in each county, or the districts over which the jurisdiction of the courts extend, and shall be commissioned by the governor. They shall hold their offices three years, if they shall so long behave themselves well, and until their successors be duly qualified. These provisions are fundamental and undoubtedly govern all prothonotaries and clerks of courts, whose offices are established by the legislature under the last clause of the first section of the fifth article. But they do not supply the place of the legislation necessary to provide for the election of a person to fill the particular office thus established. They do not ascertain the year in which he shall be elected, the notice to the electors to elect the persons to hold the elections, and make the return, and the time, place and manner of declaring the result and certifying it to the governor. In short, the act is totally-wanting in any provision for the election of the officer, and the time when his term shall begin. For aught to be found in the law, the sheriff might have deferred his proclamation until 1872, or the electors, or a majority, might have waited till a later period. It is clear, therefore, that the respondent has not been lawfully elected to any office created by law, and that he is unlawfully exercising the functions of clerk of the District Court, and must be ousted therefrom.

In order to prevent the disastrous consequences resulting from the acts of an unauthorized tribunal, it is proper we should also add that we see no authority to hold this court by any judges having lawful commissions; and that without further legislation of the most careful and thorough kind, the Act of 1869 cannot be carried into effect. Some of its provisions, blending the action of the District Court and the Court of Common Pleas, are objectionable, but we do not refer to such. The fundamental error of the legislation is in the organization of the court itself, which is not only unconstitutional, as decided in the case of The Commonwealth v. Conyngham, 15 P. F. Smith 76, but is wanting in any provision to correct the error. Had the proviso, that the court should be composed of the judges of the Common Pleas, not been inserted in the 7th section to qualify the enactment, it might have been argued, that there was an inchoate organization of the court by vesting its powers and jurisdictions in a president and two associates, to be supplied in some other manner. There might then be some plausibility in the idea that the places could be filled by appointment, until an election to fill the vacancy. But even this thought is neutralized by the fact that no provision has been made for an election, under the constitutional amendment of 1850. The appointment would fall in December, or we should have the anomaly of the office of a judge of a court of record existing by appointment indefinitely and without any term in the incumbent known to the constitution. It is evident that when, by the proviso, the legislature directed that the court should be organized by the president and associate judges of the courts of Cambria county, it excluded all others from the office. The proviso, it is true, is not according to the constitution, and the judges of the courts of Cambria county cannot fill the office, but its effect was to qualify the enactment so that no others could fill it without further legislation ; no substitute having been provided. The court, not being one of those created by the constitution itself, has nothing to stand upon except the law which created it, and this being defective in its vital point, it is left without any legal organization. Nothing short of supplementary legislation can cure this defect. It is to be regretted that the legislature had not acted on the suggestion of the governor, and repealed the Act of 1869.

It is proper we should now say before closing, that in a case like this, requiring the immediate interposition of the court, where no independent office exists, and no provision for filling it by election has been made, and especially in view of the unorganized condition of the court itself, we will not go beyond the primfi facie right of the relator to make the suggestion, but will proceed to give judgment against the respondent at once, and stop here. We shall not give judgment for the relator except for costs.

And now, July 3d 1872, the court do find the respondent, George T. Swank, Esq., guilty of unlawfully holding the place and exercising the powers and functions of clerk of the District Court of Cambria county, and do, therefore, give judgment, that the said George T. Swank be ousted and altogether excluded therefrom, and from the exercise of said powers and performance of said functions; and that the said J. K. Hite, the relator, do recover his costs from the said George T. Swank.