Dauphin County Grand Jury Investigation Proceedings

On June 22, 1938, the Attorney General of the Commonwealth presented a petition to the Court of Quarter Sessions of Dauphin County setting forth that by virtue of his office he had, on the previous day, superseded the district attorney of that county in the conduct of the then contemplated investigation by the Grand Jury of charges made against certain public officials and private citizens, and praying for an order requiring the district attorney to turn over to him all documents and evidence bearing upon the case. A rule was granted which, on June 27, 1938, was discharged by the court below. Thereafter, on July 30, 1938, an act was passed by the General Assembly, being Act No. 3 of the special session, which provides: "Section 1. In any investigation or proceeding whatsoever pending before any court of oyer and terminer and general jail delivery, or before any court of quarter sessions in any county of this Commonwealth, the Attorney General of the Commonwealth may, at any stage of the investigation or proceeding, in his absolute discretion, supersede and set aside the district attorney of the county. Section 2. If in any such investigation or proceeding, the court before which it is pending shall find, after hearing, that the Attorney General has failed or is unable to perform his duties impartially, such court may order the Attorney General to stand aside, and in such event shall appoint an attorney at law resident in another county of the Commonwealth of Pennsylvania to supersede and act in lieu of the Attorney General. . . ." The act provides that it "shall apply to all investigations or proceedings now pending, as well as to all future investigations or proceedings."

Following the enactment of this statute, the Attorney General, on August 3, 1938, again notified the district attorney of Dauphin County that he was superseding him in the conduct of the Grand Jury investigation and that he, the Attorney General, would conduct the proceedings on behalf of the Commonwealth. On the same day he filed a petition in the court below setting forth this action on his part, and praying for an order of the court directing the district attorney to deliver to him all documents in his possession, and further praying that he, the Attorney General, should thereafter be recognized as the officer in sole charge of the proceedings on the part of the Commonwealth. On August 8, 1938, the court dismissed the petition and refused its prayer. From that order we have the present appeal by the Attorney General.

In Com. ex rel. Minerd v. Margiotti, 325 Pa. 17, 30, in defining the common-law powers of the Attorney General, we said, speaking through Mr. Justice SCHAFFER: "We conclude from the review of decided cases and historical and other authorities that the Attorney General of Pennsylvania is clothed with the powers and attributes which enveloped Attorneys General at common law, including the right to investigate criminal acts, to institute proceedings in the several counties of the Commonwealth, to sign indictments, to appear before the grand jury and submit testimony, to appear in court and to try criminal cases on the Commonwealth's behalf, and, in any and all of these activities to supersede and set aside the district attorney when in the Attorney General's judgment such action may be necessary." This summary followed a comprehensive review of the origin and evolution of the office of the Attorney General, both in England and in our own Commonwealth, which amply vindicated the conclusions reached. The general power to supersede the district attorney was reasserted in these very proceedings, in the opinion by Mr. Chief Justice KEPHART, 332 Pa. 289.

It is obvious, then, that Act No. 3 merely confirms in statutory form the possession by the Attorney General of a power which had theretofore been enjoyed by him under the usage and traditions of the common law. And, while it is true that district attorneys are constitutional officers (Constitution, Article XIV, section 1), it is well established that since the Constitution does not prescribe the duties of the district attorney the legislature may regulate the performance of such duties and provide for cases in which it would be improper for the elected officer to act:Commonwealth v. McHale, 97 Pa. 397, 406; Commonwealth v.Havrilla, 38 Pa. Super. 292, 295; Commonwealth v. Lehman,309 Pa. 486, 491, 492.¹

The court below was of opinion that Act No. 3 could not validly apply to the pending proceedings because, by the order of June 27, 1938, the Attorney General's right to supersede the district attorney had been, at least inferentially, denied, and, no appeal having been taken from that order, the legislature could not compel the judicial reversal of a decision previously made by the court. While the principle thus asserted is not only sound but even vital to our constitutional system of the division and independence of executive, legislative and judicial powers, it has, in our opinion, no application to the present situation. Act No. 3 is general in its terms. It does not affect any rights of litigants or any final judgment or decree. While retroactive in the sense that it was made applicable to then pending proceedings, it did not purport to set aside the order previously made therein by the court, nor did the Attorney General seek to have that original order reversed by virtue of the authority of the act. What the Attorney General did was to give to the district attorney a new notice of supersession, thus starting a fresh proceeding under the provisions of the statute; from this he would not automatically be precluded merely because another application, made prior to the statutory enactment, had failed.

We are thus brought to the real question in the case, — is there any restriction whatever upon the power of the Attorney General to supersede the district attorney of a county? Is the extent of the discretion possessed by him at common law and now fortified by act of assembly so illimitable as to be beyond the pale of judicial review? We have no difficulty in reaching the conclusion that, from the legal standpoint, such discretion may be abused, and, if so, its exercise cannot be sustained. Just as a district attorney is a quasi-judicial officer (Commonwealth v. Nicely, 130 Pa. 261, 270; Snyder's Case,301 Pa. 276, 288), so, likewise, is the Attorney General when acting officially in proceedings in the criminal courts. To him, therefore, is peculiarly applicable the familiar doctrine that courts and all judicial and quasi-judicial officers must exercise discretionary powers upon the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary action. From early sources of English law we learn (as quoted in 1 Tomlin's Law Dict. 561) that "When any thing is left to any person to be done according to his discretion, the law intends it must be done with sound discretion, and according to law; and the Court of B. R. [King's Bench] hath a power to redress things that are otherwise done, notwithstanding they are left to the discretion of those that do them": 1 Lil. Abr. 477; and that "Discretion is to discern between right and wrong; and therefore whoever hath power to act at discretion is bound by the rule of reason and law. 2 Inst. 56, 298." In our own state it was said as long ago asPaschall v. Passmore, 15 Pa. 295, 304: "The very term [discretion] itself, standing alone and unsupported by circumstances, imports the exercise of judgment, wisdom, and skill, as contradistinguished from unthinking folly, heady violence, and rash injustice. When technically employed in legal instruments, its proper acceptation is inseparable from the idea of dispassionate conclusion, having due regard to the rights and interests of others." There is to be found in our law books not merely a current, but a torrent, of authorities to the same effect, among which may be citedSchlaudecker v. Marshall, 72 Pa. 200, 206; Camp v. CornExchange National Bank, 285 Pa. 337, 348, and Campbell v.Bellevue Borough School District, 328 Pa. 197, 202. No implication can be drawn from the former opinions of this court that the power of the Attorney General to displace the district attorney is not limited to the proper legal exercise of a sound discretion. Nor does Act No. 3 effect — even if it constitutionally could effect — a change in this respect. It is true that the statute uses the phrase "absolute discretion," but, while the adjective supplies emphasis, it cannot be judicially interpreted to connote other than a discretion consistent with those immutable principles which govern the administration of justice, that is, a discretion reasonably based upon the attendant pertinent circumstances from which its exercise arises, and which is the only range of discretion permissible to a judicial or quasi-judicial officer. In construing an act of the legislature it is incumbent upon the court to give it an interpretation, if possible, which will prevent its conflict with the Constitution. Indeed, this principle has been embodied in the Statutory Construction Act of May 28, 1937, P. L. 1019, section 52 of which provides: "In ascertaining the intention of the Legislature in the enactment of a law, the courts may be guided by the following presumptions among others: (1) That the Legislature does not intend a result that is absurd, impossible of execution or unreasonable; (2) That the Legislature intends the entire statute to be effective and certain; (3) That the Legislature does not intend to violate the Constitution of the United States or of this Commonwealth."

Whether the discretion vested in the Attorney General has been abused or has been exercised within proper legal limitations is necessarily a question for the determination of the court.

As far as the printed record discloses, neither the petition filed in court by the Attorney General nor the notice of supersession which he gave to the district attorney alleged any reason for setting him aside, nor was any evidence received upon that subject.²

While Act No. 3 authorizes the Attorney General to supersede the district attorney irrespectively of any question of the Attorney General's own disqualification to conduct the proceedings, it introduced an innovation in the law by providing that if the Attorney General, after such supersession, is unable to perform his duties impartially, he may be set aside by the court, which shall then appoint an attorney at law from another county of the Commonwealth to act as prosecutor. The learned judge of the court below points out clearly in his opinion that the Attorney General cannot with propriety conduct the proposed Grand Jury investigation. It is true that the statute provides that the court shall determine this question "after hearing," but in this case no taking of testimony was necessary since the facts disqualifying the Attorney General appeared upon the face of the record. By the phrase "unable to perform his duties impartially," the act obviously refers to a situation where such inability arises from obligations and loyalties so conflicting as virtually to render impossible the satisfactory performance of duty. The Attorney General is an appointee of the Governor and subject to dismissal by him. Under such circumstances ordinary sentiments and impulses would necessarily tend to interfere with the Attorney General's freedom of action, even though he might not in fact succumb to the temptations which would confront him. To permit him to conduct the investigation in such a case would be contrary to all standards of professional ethics, as the Attorney General himself commendably recognizes, for, in the brief presented by him to this court, he disclaims any intention of handling the proceedings personally. In the event, therefore, that the court below shall decide that the district attorney has been properly superseded, it will thereupon appoint an attorney at law resident in another county to perform his functions.

The order of the court below dismissing the Attorney General's petition for the delivery to him of the documents in possession of the district attorney of Dauphin County and praying that he, the Attorney General, should be recognized as the officer in sole charge of the proceedings on the part of the Commonwealth, is affirmed. All documentary evidence shall be available to the Grand Jury and to the Investigating Committee of the House of Representatives in conformity with the opinion this day handed down in re Investigation by the September, 1938, Dauphin County Grand Jury. The record is remitted to the court below for the purpose of permitting the Attorney General formally to present to the court his reasons for superseding the district attorney, with the right to the latter to be heard thereon, the court thereupon to determine the question whether the district attorney has been superseded by a valid exercise of the legal discretion vested in the Attorney General, and, if it shall be determined that he has been properly superseded, to appoint an attorney at law resident in another county of the Commonwealth to supersede and act in lieu of the Attorney General.

¹ There have been several previous statutes regulating the temporary displacement of district attorneys, beginning with the Act of March 12, 1866, P. L. 85, including the Act of May 2, 1905, P. L. 351, and the Act of June 7, 1923, P. L. 498, sec. 907, and culminating in the Act of April 9, 1929, P. L. 177, sec. 907.

² The Attorney General, however, in his oral argument before this court, as well as in the court below, did challenge the disinterestedness and qualifications of the district attorney to discharge his duties in the Grand Jury investigation, referring, in that regard, to the supplemental petition of the Governor for a writ of prohibition in these proceedings, in which the Governor charged that "the district attorney of Dauphin County has been actuated by political and partisan motives in his conduct in this matter up to this time," and that he allegedly said that "although he was particularly investigating two contractors, the particular persons were immaterial as he was investigating 'those Democrats.' " It was also asserted, in addition to other complaints made against the district attorney, that he had subpœnaed a number of witnesses without the consent of the judge of the court below and against his express orders.