Commonwealth ex rel. Chase v. Harding

Chief Justice Agnew

delivered the opinion of the court,

The principal question, and turning point of this case is, whether the new county of Lackawanna became a separate judicial district under the fifth section of the fifth article of the new constitution immediately upon its erection, and by that fact; or whether it remains within the Eleventh Judicial District, according to the provision in the 13th section of the Act of 17th April 1878 (Pamph. L. 17). and must- be organized under it. The 5th section of the 5th article reads thus; “ Whenever a county shall contain forty thousand inhabitants it shall constitute a separate judicial district, and shall elect one judge learned in the law; and the General Assembly shall provide for additional judges as the business of the said district may require. Counties containing a population less than is sufficient to constitute separate districts shall be formed into convenient single districts, or, if necessary, may be attached to contiguous districts, as the General Assembly may provide. The office of associate judge, not learned in the law, is abolished in counties forming separate districts; but the several associate judges in office when this constitution shall be adopted shall serve for their unexpired terms.” This section, it will be seen, has no relation to new counties, but operates on all counties, old and new, according the number of inhabitants in them, and affects existing districts, as already arranged by law. The new constitution found the state already districted, and therefore to be re-districted before it could take effect. Under this section the organization of separate districts consisting of a single county, and that of single districts composed of several counties are different; the former having but one judge who holds all the courts alone, and additional law judges when necessary for the dispatch of business; the latter having three judges, one of whom, the president, is learned, and the other two not learned in the law; the president being a judge of every county in his district, and the associate judges only of one county. The number of inhabitants in a county is an unknown fact, except as it may become known through the decennial census taken by the United States. This connects the question with the 14th section of the schedule, which will be noticed presently. Now it is obvious that as the 5th section referred to operates upon an existing arrangement of districts throughout the state, and as counties having-a population less than forty thousand are necessarily comprehended with others in districts having a president judge, who presides in each and every county of the district, a most uncertain and confusing state of judicial affairs, followed by ruinous consequences, would happen, if, whenever a county reached the number of forty thousand inhabitants, it became ipso facto a separate judicial district, by the simple mandate of the 5th section of the 5th article, and without preparatory legislation. Its organization would change instanter; the associates not learned in the law, elected and commissioned long after the adoption of the constitution, dropping out; and the president of the whole district becoming the sole judge in the new district. There would arise perplexing questions of jurisdiction likewise, if the fact of the required population determines the operation of the constitution, and not its legal ascertainment by an act of legislative power. If the fact determines, then the time of the fact also governs, and who shall (outside of the legal mode) determine when this took place ? And if it had taken place long before the change in organization took place, what effect will the acts of associates have, acting after their offices expired by virtue of the very terms of the same section ? It is evident that if the constitution executes itself, without legislative aid to determine the number of inhabitants and prepare the way for the passage of the county, having the required population, from the old into the new relation, the confusion would be inextricable, and the consequences ruinous. It is also obvious, as the constitution is not confined to new counties, but applies to old and new, that the latter must follow the same rule.

Now we are prepared to see the relevancy and effect of the 14th section of the schedule, which seems to be out of place, but which has no ambiguity in its interpretation. It reads thus: “ The General Assembly shall at the next succeeding session after each decennial census, and not oftener, designate the several judicial districts, as required by this constitution.” The italics I have made mark its operation. The duty recurs after each census, but not oftener. It is evident the convention intended to confine the arrangement of districts to decennial periods when the census would authoritatively, and with certainty, declare the population of each county. These counties having reached the constitutional requirement, can be declared by law to have arrived at the period of separation from all others judicially, and the way prepared for passing into the new relation. Thus the provisions of the 5th section of the 5th article, and the 14th section of the schedule harmonize with each other, and the separation of a county from all others to form a district by itself, under a new and different organization of its courts, becomes a matter of certainty, and innocuous adaptation to other relations and counties; and this shows also that the argument founded upon the estimate of the population, by the commissioners appointed under the Act of 17th April 1878 is inapplicable. The purpose of that estimate is declared by the act itself. The report of this commission is expressly stated to show whether the new county can be erected “ without conflicting with the constitutional provisions as to territory, population and the nearest distance of the boundary line to the county seat.” The estimate is but a part of their report for this special purpose, and was not intended by the legislature for a different purpose, while no provision was made in the act for the execution of a different purpose, the 13th section, on the contrary, retaining the new county within the.Eleventh Judicial District. It is manifest that an estimate is not a census, and is to precede the erection of the county, and not to affect its character as a judicial district after it has been erected. Thus it is evident the estimate was no foundation for the exercise of any executive function, either by way of declaring the county a separate judicial district or of appointing its officers. The power of separation is legislative, to he exercised at the time when the constitution provides, and not executive.

It follows from these views that when the new county came into existence as a part of the Eleventh Judicial District, having a president judge already in commission, there was no vacancy in that office to be filled, and nothing upon which the commission of the governor could take effect. He might as well attempt to issue a commission to fill Judge Pearson’s place in Dauphin county. Having no power to appoint, the commission to Judge Bentley was waste paper and void. He is not even a defacto judge, there being no office to be filled, no commission to be issued, and no authority in the governor to act. Even a de facto officer must have some color to act. There was no separate district, and the character of the county in its judicial aspects had not been changed. The Act of Assembly gives no color, but the contrary, and the commission has not the sanction of law. It is better, therefore, to grant the mandamus at once than to suffer new complications to arise by delay.

But the mandamus cannot go to the judge of the Orphans’ Court, whose jurisdiction after separation is necessarily confined to his own .county, Luzerne. The new county is not entitled to a separate Orphans’ Court, but under the constitution the judges of the Common Pleas become the judges of the Orphans’ Court, and the register of wills will be entitled to all the ordinary powers of the office at law, and he does not become the clerk of the Orphans’ Court, as in a county entitled to a separate Orphans’ Court. The 22d section of the 5th article makes the creation of a separate Orphans’ Court a subject of express legislative power; while the Act of 17th April 1878 has not only provided no such Orphans’ Court, but has said nothing about the judge of the Orphans’ Court in the provision for organization. There can be no assumption, therefore, of the creation of a separate Orphans’ Court in the new county. The effect of the erection of the new county was to make the judges of the Common Pleas the judges of the Orphans’ Court, to confer on the register of wills the actual power, and to limit the jurisdiction of Judge Rhone to his own county. He cannot constitutionally be a judge in two counties, one of which is not entitled to a separate Orphans’ Court. The mandamus cannot go to him. But while Lackawanna is not a separate judicial district, its organization presents more difficulty, owing to its peculiar relations. The constitution has made no provision for the effect of the division of a separate judicial district consisting of a single county. The organization of such a separate district is constitutionally different from that of a county connected with others. In the separate district one judge learned in the law fills all the courts without associates. Additional law judges may be given for the dispatch of business, but not ordinary associates. But a county connected with others is entitled to three judges, one the president of the courts of all the counties in his district, and the other two associates, not learned in the law, in the single county, and not in the others. This raises the question, how far the additional judges 'of Luzerne county can be made temporarily associate judges of Lackawanna county, a seeming anomaly. It is clear that the 13th section of the Act of 1878 retaining, “ for the time being,” the new county in the Eleventh Judicial District, and directing the judges of that district to organize the courts of the new county, does carry in the additional as well as the president judge. This compels us to meet the difficulty already presented, the want of any constitutional provision for the separation of a separate single county district into two parts, one of which is not entitled to a separate judicial district organization. It is evident, under the new constitution, that there is no such thing as a separate single county judicial district, consisting of two counties entitled to different organizations. The thing is not only an anomaly, but contradictory. The power to divide Luzerne county, though a separate judicial district, is undoubted; and, therefore, the repugnancy existing in the constitutional provisions for erecting new counties, and creating separate judicial single county districts, must be resolved upon the general powers conferred upon the legislature. The power to create new courts to supply the wants of the state is undoubted: 1st sect. 5th art.; Green’s Case, 8 P. E. Smith 226. The power to create new counties is clear, under the 1st section of the 2d article. The prohibitions in the 13th article do not touch this question, while they imply all other unexcepted necessary powers. We have, therefore, a case within the general powers of legislation, not forbidden by any special provision, and necessary for temporary organization, to comply with the mandate of the 11th section of the Declaration of Rights, that all courts shall be open, and all persons shall have remedy by due course of law and justice administered without denial or delay. Now, in substance, this is nothing more than to hold that the effect of the 13th section of the Act of 1878 is to suspend the erection of the new county, as to judicial purposes, until a proper provision can be constitutionally made for the organization of the new county in the mode the constitution provides for such a county. If this cannot be done, then a constitutional anomaly has arisen for which there is no remedy, and a single county, constituting a separate judicial district, cannot be divided; a consequence we cannot admit, in view of the general legislative power over the subjects of the courts and new counties. We are of opinion, therefore, that the temporary organization of the courts of Lackawanna county, under the 13th section of the Act of 1878, is constitutional and proper, and that the rule for a Tnn.ndfl.wms as to the judges of the Court of Common Pleas of Luzerne county must be made absolute, but must be discharged as to the judge of the Orphans’ Court.

Before the opinion was filed in this case, Hon. Benjamin S. Bentley petitioned the Supreme Court as follows:

“ That he is president judge of the several courts in and for the county of Lackawanna; that in accordance with the Act of Assembly, said county was erected, containing a population of more than 40,000. That thereby its judicial connection with the county of Luzerne was severed, and a vacancy created in the office of president judge of the several courts of record. That on the petition of members of the bar and many citizens of Lackawanna county, Governor Hartranft appointed and commissioned petitioner to be president judge of the several courts of record in and for the county of Lackawanna. That the petitioner accepted the same, took the oath of office, and changed his residence in obedience to the requirements of the constitution, by removing from the city of Williams-port, Lycoming county, Pa., to the city of Scranton, in the county of Lackawanna. That he relinquished the practice of the law and placed his business permanently, in other hands. That he organized the several courts of said new county of Lackawanna, fixed and determined the number of terms and return-days, and all things necessary in the premises.

“ And your petitioner cannot but feel that he is entitled, as a matter of courtesy, if not of right, to be put upon record as a party, and be heard in any proceeding affecting him personally and officially in so large a degree.

“ Your petitioner, therefore, prays that he be made a party in this proceeding, that a re-argument be granted, and a rule to show cause why the mandamus heretofore issued shall not be vacated.

On the 21st of November 1878, this court refused the petition, in an opinion saying,

Per Curiam.

Since the opinion was written in this case,- a,nd before filing it, Mr. Bentley has petitioned us to be permitted to become a party, and to be heard against the mandamus heretofore ordered to be issued, and under which the judges of Luzerne county have already acted. We fail to perceive any mode by which he can become a party to the legal proceedings against the judges of ' Luzerne county. Yet we have examined the reasons set forth in his application with care to see whether we ought to have arrived at a different conclusion in the mandamus case and find none.

Nevertheless, we look upon his case as one of hardship, deserving legislative relief for the injury he has suffered by accepting a commission not asked for, and erroneously issued without fault on his part.

The prayer of his petition is refused.