Commonwealth v. McAfee

Opinion by

Mr. Justice Moschzisker,

■ The objection to the act of March 2, 1911, is that it extends for the period of one year the terms of all judges whose commissions expire on the first Monday of January in odd-numbered years. In Com. v. Sheatz, 228 Pa. 301, referring to a term fixed by the constitution, we said, “The term of office fixed by the constitution is expressly limited to a definite number of years, and it is not within the power of the legislature, directly or indirectly, to extend it beyond the prescribed period. . . . There is an implied prohibition against the right of the legislature to add to the term where the constitution has expressly prescribed the duration of the tenure. ... It is not within the power of the legislature to ... . extend the term of the office and prevent a vacancy. . . . Holding over .... is not a new or another term but a prolongation of the elected incumbent’s term. . . .” Article 5, sec. 15, of the constitution provides that all common pleas judges shall hold their offices for the period of ten years. The schedule adopted by the people to put into effect the amendments of 1909 declares: “All judges for the courts of the several judicial districts .... holding office at the date of the approval of these amendments .... whose term of office may end in the year 1911, shall continue to hold their offices until the first Monday of January, 1912.” This schedule is a temporary part of the constitution. “It is only when the constitution fails to deal with a subject that the general assembly may legislate upon it:” Com. v. Sheatz, supra. Here, the constitution has dealt with the subject in hand so far as the judiciary is concerned, and the act of 1911 attempts to add provisions to the schedule upon the very matter covered therein. It may be that the draftsman of the schedule thought that he had provided against every ^contingency, but the words used cannot be construed to mean, that from 1911 on ad libitum the terms of all judges whose commissions might expire in an odd-numbered year shall be extended for a period of twelve months. If such was the idea it should have been expressed. While the maxim expressio unius est exclusio alterius cannot be applied so as to deprive the legislature of distinct powers not limited or taken away by the constitution itself, yet it is properly applicable in the construction of any particular part of the constitution as limiting the legislative power over the subject therein provided for. In Page v. Allen, 58 Pa. 338, with this thought in mind, we said, “The expression of one thing in the Constitution, is necessarily the exclusion of things not expressed;” and in Etter v. McAfee, 229 Pa. 315, we applied the maxim in construing the amendment of 1909 to the effect that the first election of a state treasurer for the full term of four years should be held in 1912, and we there ruled that the provision excluded a construction which would permit an election before that time. The schedule adopted in 1909 having expressly dealt with the matter, but having omitted to extend the terms of judges other than those whose commissions expired in the year 1911, the legislature, in the face of the constitutional provision definitely fixing such terms and the implied prohibition against their extension, cannot supplement the schedule in violation of such prohibition, even as a temporary expedient. Hence, the act of 1911, so far as it concerns the terms of the judges, is unconstitutional and void.

The suggestion that the difficulty can be solved by holding that the judges whose terms expire in odd-numbered years shall have successors elected at the municipal election which will occur fourteen months before the expiration of their respective terms, is likewise open to constitutional objections. Article V, sec. 26, of the constitution provides that, “All laws relating to Courts shall be general and of uniform operation.” Classification must not only rest upon a plain distinction in the subjects classified, but it must always have a substantial reason back of it amounting to more than a mere convenience. The suggested solution leads to a classification which will destroy uniformity in the election of the common pleas judges, and its effect is permanently to divide such judges into two groups, the members of one to be elected fourteen months, and of the other two months, before the expiration of the terms of their predecessors. The arrangement would be contrary to the long-established public policy of our state which allows but a short time to intervene between an election and the assumption of office. This policy has strong practical reasons back of it, particularly in the case of a judge elected from the bar, who, after being set apart for judicial work, should not be obliged or permitted, during such a considerable period, to practice his profession for a livelihood. However, these practical reasons would not. constitute insurmountable objections if the proposed classification were a natural one, or one made imperatively necessary by existing conditions. In other words, if the amendments of 1909 left the matter in such a position that the only alternative was to accept the classification, and there was nothing in the constitution plainly forbidding it, then, ipso facto, the classification and its effect would be there, and the general assembly could enact proper legislation with reference to it, or, possibly, it might be of sufficient force to annul prior legislation in conflict therewith, such as the Act of April 30, 1874, P. L. 118, which provides that the terms of office of all judges shall commence on the first Monday of January next succeeding their election. But the division is not a natural one; heretofore the only classification of judges known to our law has been founded upon differences in the work performed. The question remains, is it a necessary one; for under all our cases a new classification will not be permitted unless there is an apparent reasonable necessity to support it. A classification, for the purpose of applying a different rule or remedy as between persons in the same general category, cannot be held to be necessary, or permissible, if the situation impelling it is already provided for in our organic law; and the learned court below has held such to be the case in the present instance, taking the view that the non-elections of successors will create vacancies which it will be the right and duty of the governor to fill. If the constitution gives the governor the power to fill such a vacancy as is here under consideration, since the people failed to say so in words or by necessary implication, we cannot assume that they intended by the amendments of 1909 to change the established rule regarding the time for the election of any of the judges; on the contrary, we must assume that, they anticipated the natural legal consequences of their omission to provide for the contingency before us, and that they intended the creation of vacancies and the exercise of the executive prerogative to fill them by interval appointments. The question is, Does the constitutional provision vesting the governor with the right to fill vacancies apply to the condition which will arise in the event of the expiration of the term of the relator without the prior election of a successor? The proper determination of this case depends upon the answer to that question.

After looking at the matter from every standpoint, ,we are brought to the conclusion that the view of the court below is the correct one, and that the question must be answered in the affirmative. Article IY, sec. 8, of the constitution as amended in 1909, provides, “He (the Governor) .... shall have power to fill any vacancy that may happen .... in a judicial office .... But .... a person shall be chosen to said office on the next election day appropriate to such office. ...” The constitution expressly gives to the people the right to choose judges by election, and it gives to the chief executive the right to fill vacancies. This latter right exists whether the vacancy occurs during a term for which an incumbent has been elected or at the expiration thereof, if there is no one to fill the office. The non-election of a successor, whether it be through a neglect of the people or a failure of the law to afford a proper opportunity, creates a vacancy. “The word 'vacancy’ as applied to an office has no technical meaning. ... An existing office without an incumbent is vacant. . . . There is no basis for the distinction that it applies only to an office vacated by death, resignation, or otherwise:” 8 Words & Phrases, 7259. Fortunately we are not without our own construction of this word. An interesting dissertation on its meaning will be found in Walsh v. Com., 89 Pa. 419. There a new county had been erected. The act provided that, ''The Governor was required immediately to appoint and commission the officers for the new County, who should continue in office until the next general election,” and, at such election, ''the qualified electors shall elect” county officers. The then constitutional provision was that the governor might ''fill any vacancy that may happen .... in any elective office. . . . But .... a person shall be chosen to said office at the next general election, unless the vacancy shall happen within three calendar months immediately preceding such general election, in which case the election for such office shall be held at the next succeeding general election.” The governor appointed Walsh less than three months before the date of the ''next general election,” and the relator was elected to the same office at that election. “He contended that the design of the Legislature .... was to bridge over the interval between the creation of the County and the next election, by directing the Governor to appoint the new officers;” and “He relied on the second section of the fourteenth article of the Constitution, requiring that 'all vacancies not otherwise provided for, shall be filled in such manner as may be provided by law’ . . . .” We held that, “the word 'vacancy’ aptly and fitly describes an office when it is first created and has been filled by no incumbent,” that the law had created a vacancy in the office in question within the meaning of the section of the constitution which vested the governor with the right to fill vacancies, that the governor derived his right of appointment from the constitution irrespective of the statute, that this constitutional right could not be abridged or interfered with by the legislature, that the statute would have to be construed with reference to the constitution, that it was not to be supposed that the legislature intended to run counter to the organic law even to bridge over the interval between the erection of the county and the next general election, and that the governor’s appointee would hold the office until the qualification of a successor elected at the second general election. The meaning of the word “vacancy” was again under consideration in Com. v. Dickert, 195 Pa. 234, and it was there ruled that in case of a failure to elect a successor to the incumbent of the office in question “ a vacancy exists by reason of the expiration of the term.” In Com. v. Sheatz, 228 Pa. 301, the state treasurer elect died before qualifying, and at the expiration of the term of the incumbent there was no one to fill the office. We held that there was a vacancy and that the governor had the right to appoint. By the light of these cases, the learned court below was right in the view that the inevitable effect of the amendments of 1909 will be to cause the offices of all common pleas judges whose terms expire on the first Monday of January in odd-numbered years to become vacant, and that it will be for the governor to appoint incumbents to serve until successors are chosen by the people at the next appropriate election.

The argument that the solution arrived at will postpone the popular choice is of no avail against constitutional provisions adopted by the people themselves: Walsh v. Com., supra; Etter v. McAfee, supra; nor is the objection that it will make some of the judges appointive and others elective sound in law, for limited interval appointments to elective offices have always been part of our system, and none of these appointments will be for more than one year. The solution works no permanent division in the ranks of the judges, as the situation when thus dealt with is but a temporary one which will cease to exist after the expiration of the term of the last of the present incumbents in 1919. In the meantime the positions of thirty-nine of the 131 judges of the commonwealth may be affected, unless the people by another amendment should extend their-terms or provide that judges can be elected in any year.

The people may have supposed that the schedule of 1909 comprehended all possible contingencies and made all necessary provisions to carry the constitutional changes into effect without disturbing their right to elect immediate successors to the judges then in office. But the difficulty is, if such was their intention, they failed to say it, or so to express themselves that the legislature, without violence to other fixed constitutional mandates, could carry out their wishes in that respect. In construing any part of the constitution we are not at liberty to disregard other applicable provisions, or to supply words omitted, in order to work out a thought which the people themselves had the opportunity to give expression to had they so desired, nor can we ignore the authority of our own prior decisions. We must take the law as we find it, and we are constrained to hold that the relator’s term cannot be extended by act of assembly; further, that his successor cannot be lawfully elected in the year 1911. To permit either would disregard constitutional inhibitions and read that into the organic law which cannot be found therein; while to follow the rule laid down by the learned court below, is to conform to the constitution as it is written and as it has been heretofore construed by this court. It neither takes from nor adds to the constitution, but simply accepts a remedy there supplied in plain and, under our decisions, unambiguous, language.

The assignment of error is overruled and the judgment of the court below is affirmed.