Buckley v. Holmes

Opinion by

Mr. Chief Justice Brown,

By the Act of May 19, 1874, P. L. 206, the Orphans’ Courts-of the State are made courts of record. Under-Section,25. of Article V of the Constitution, “any vacancy happening by death, resignation or otherwise, in any court of record, shall be filled by appointment by the Governor,’to continue till the first Monday of January next succeeding the first general election, which shall occur three or more months after the happening of such vacancy.” This provision remains unchanged, and, but for certain amendments' to-others.-in, the .Constitution, it could not be questioned that the successor of Judge Dallett — who died August 23, 1917, — would, be an appointee of the'Governor, to serve until the first Monday-of January after the general election in 1918, when a successor- would be elected by the electors of the county.

Section 2, Article VIII, of the Constitution, as originally adopted, provided that the general election should be held annually on the Tuesday following the first Monday of November, and section three of the same article directed that all elections for city, ward, borough and township officers, for regular terms of service, should take place on the third Tuesday of February. These two provisions have been changed by the fifth and sixth amendments of 1909, and now read as follows: “Section 2. The general election shall be held biennially on the Tuesday next following the first Monday of November in each even-numbered year, but the General Assembly may by law fix a different day, two-thirds of all the members of each house consenting thereto: Provided, That such election shall always be held in an even-numbered year.” “Section 3. All judges elected by the electors of the State at large may be elected at either a general or municipal election, as circumstances may require. All elections for judges of the courts for the several judicial districts, and for county, city, ward, borough, and township officers, for regular terms of service, shall be held on the municipal election day; namely, the Tuesday next following the first Monday of November in each odd-numbered year, but the General Assembly may by law fix a different day, two-thirds of all the members of each house consenting thereto : Provided, That such election shall always be held in an odd-numbered year.”

The February election has been abolished, and there is now but one election each year, held on the Tuesday following the first Monday of November. The general election is biennial in each even-numbered year; the municipal, on the same day in odd-numbered years. The first question to be considered is, at which of these elections are Orphans’ Court judges elected?

By the amendments of 1909 it was intended to get rid of the spring election and to continue the constitutional provision for the election of local or municipal officers on a day different from that on which general State of4 ficers are elected. While judges of the several judicial districts are State officers, they are compelled to reside in the districts for which they are elected, and the duties which they regularly perform are local. It was doubtless for this reason that they were included, under the sixth amendment of 1909, in the class of officers to be elected at municipal elections. If this be true of Common Pleas judges, it is certainly no less true of an Orphans’ Court judge, whose jurisdiction is peculiarly local. Every act of assembly creating a separate Orphans’ Court speaks of it as the court of the county in which it is established, and the same is true of the acts creating additional Orphans’ Court judges in the Counties of Allegheny and Philadelphia. Vide Acts of June 13, 1883, P. L. 97; March 28, 1895, P. L. 31; April 11, 1901, P. L. 71; May 2, 1901, P. L. 117 ; July 11, 1901, P. L. 655; July 11, 1901, P. L. 657; May 25, 1907, P. L. 260; May 5, 1881, P. L. 12; April 28, 1887, P. L. 72; March 22, 1907, P. L. 26. An Orphans’ Court judge is not a judge of a designated judicial district of the State, but of a court of the county in which he resides. If it be one of two, three or four, constituting a single judicial district, he is not a judge of .that district, with jurisdiction extending all over it, as does that of each of the Common Pleas judges within it. His jurisdiction, is limited to the county in which his court exists. This being true, he is not a judge within the strict meaning of the words, “judges of the courts for the several judicial districts” appearing in the sixth amendment of 1909; but it does violence to that amendment to hold that it was not intended thereby to include Orphans’ Court judges, as well as Common Pleas judges,, in the class of officers to be elected' at municipal elections in odd-numbered years. Keeping in mind the manifest intention of the sixth amendment, to which we have alluded, it seems to be quite clear that the Orphans’ Court judges of the State are to be elected at the same time that elections are held “for judges of the courts for the' several judicial districts, and for county, city, ward, borough and township officers, for regular terms of service.” Unless this be so, Orphans’ Court judges are in the anomalous situation of having no time fixed for their election. They are made elective by the Constitution, but, as amended, it will be searched in vain to find any other provision than amendment six of 1909 under which they can be elected.

The second question for determination is, Shall Judge Dallett’s successor be elected this year or in 1919? As already observed, Section 25 of Article V of the Constitution has never been changed. It remains just as it was originally adopted. It is a section of “The Judiciary” article, and specifically provides that any vacancy happening by death in any court of record shall be filled by appointment by the Governor, “to continue till the first Monday of January next succeeding the first general election, which shall occur three or more months after the happening of such vacancy.” This means that if the vacancy happens within three months preceding the next election at which judges are elected, the appointee shall hold his office until the first Monday of January following the second election for judges held after the death which caused the vacancy. By Section 8, Article IV, of the Constitution, known as “The Executive” article, it is provided that the Governor shall fill, by appointment, vacancies in certain offices, including “a judicial office”; and a further provision is that “in any such case of vacancy, in an elective office, a person shall be chosen to sai.d office at the next general election, unless the vacancy shall happen within three calendar months immediately preceding such election, in which case the election for said office shall be held at the second succeeding general election.”. This provision was entirely consistent with Section 25 of Article V. Has that section been made inoperative by the amendment of 1909, amending Section 8 of Article IV ? That section, as amended, declares that, in case of vacancy in an elective office, the person appointed by the Governor to fill it shall be succeeded by some one chosen on the next election day appropriate to such office, unless the vacancy shall happen within two calendar months immediately preceding such election, in which case the election for said office shall be held on the second succeeding election day appropriate to such office. Judge Dallett died within three calendar months of the election to be held for judges this year, but more than two calendar months prior thereto. He was a judge of a court of record, and specific provision is'made in Section 25 of Article V of the Constitution for the filling of that vacancy by appointment by the Governor of a person who shall hold office until the first Monday of January following the next election after this year for judges other than those elected by the electors of the State at large. That year will be 1919. True, section eight provides for appointment by the Governor to fill vacancies “In a judicial office.” “A judicial office,” however, is a general term and includes courts of record and courts not of record. The specific provision in the judiciary article of the Constitution for filling vacancies in courts of record has, as already stated, not been changed by amendment, and even if there were an irreconcilable conflict between it and the general provision of Section 8 of Article IV, as amended, a cardinal rule of construction applicable to constitutions as Avell as statutes, requires that the specific provision shall prevail: 6 Amer. & Eng. Ency. of Law (2d Ed.), 927. “ ‘Where there are in an act specific provisions relating to a particular subject, they must govern in respect of that subject, as against general provisions in other parts of the statute, although the latter standing alone would be broad-enough to include the subject to which the particular provisions relate. Hence, if there are two acts, of Avhich. one is special and . particular, and clearly includes the matter in controversy, Avhi-lst the other is general, and Avould, if standing alone, include it also, and if, reading-the general provision side by side with Hire particular one, the inclusion of that matter in the former would produce a conflict between it and the special provision, it must be taken that the latter was designed as an exception to the general provision’: Endlich on the Interpretation of Statutes, Section 216; Felt v. Felt, 19 Wis. 193; State v. Goetze, 22 Wis. 363; Crane v. Reeder, 22 Mich. 322. ‘Where a general intention is expressed, and the act also expresses a particular intention incompatible with the general intention, the particular intention is to be considered in the nature of an exception’: Dwarris on Statutes”: Thomas v. Hinkle, 126 Pa. 478.

The amendment of Section S, Article IV, of the Constitution, does not purport to be a new provision. It recites the original section, and the meaning now to be given to the words, “in a judicial office,” is the same as if the section had not been amended. This is conceded by learned counsel for appellees, who also frankly admits that “It necessarily follows that when Article IY, Section 8, was amended, and the words in a judicial office remained unchanged, they cannot be given such an enlarged meaning as to render Article V, Section 25, wholly nugatory; and hence now, as before the amendment, Article Y, Section 25, governs and the vacancy caused by the death of Judge Dadlett is not to be filled at the present time.”

And now, October 15, 1917, the decree of the court below is reversed, the bill is reinstated, and it is ordered, adjudged and decreed that the defendants, and each of them, be perpetually enjoined and restrained from printing upon the official ballot for the election to be held November 6,1917, any name or names whatsoever of persons nominated for the office of judge of the Orphans’ Court of Philadelphia County, other than those nominated at the primary held September 19, 1917, to fill the vacancies caused by the expiration of the terms of office of the Honorable Joseph F. Lamorelle and Honorable Edward A. Anderson, the costs below and on this appeal to be paid by the County of Philadelphia.