Pipa v. Kemberling

Argued September 30, 1936, reargued March 11, 1937. John L. Pipa, Jr., a member of the bar of this state and appellant herein, has appealed from an order of the court below quashing a writ of alternative mandamus by which he sought to compel the commissioners of that county to pay him for services rendered and expenses incurred as a special attorney appointed by the Attorney General under Section 907 of the Administrative Code of April 9, 1929, Article IX, P.L. 177, 239, 71 P. S. § 297.

We have concluded that the order quashing the writ should be affirmed but not for the reason assigned by the learned president judge of the court below, viz., that it had not been established that appellant had taken the required oath of office and filed the same in the office of the prothonotary of Snyder County. Following the oral argument in this court, it was stipulated in writing by counsel for the respective parties that the oath required by the act under which the appointment was made was taken by the appellant before, and filed with, the Attorney General.

We think the underlying question in this case was raised by the tenth paragraph of appellees' return to the alternative writ, in which they denied the "right and authority in law of the Attorney General . . . . . . to require compensation for [appellant] to be paid by the County of Snyder as fixed by the said Attorney General, together with his expenses." If this contention is sound, and we think it is, all the other questions raised and considered below disappear from the case.

Section 907 of the Administrative Code of 1929 provides: "Special Attorneys in Criminal Cases. — When the president judge, in the district having jurisdiction of any criminal proceedings before any court of oyer and terminer, general jail delivery, or quarter sessions, in this Commonwealth, shall request the Attorney General to do so, in writing, setting forth that, in his judgment, the case is a proper one for the Commonwealth's intervention, the Attorney General is hereby authorized and empowered to retain and employ a special attorney or attorneys, as he may deem necessary, properly to represent the Commonwealth in such proceedings, and to investigate charges, and prosecute the alleged offenders against the law. Any attorney, so retained and employed, shall supersede the district attorney of the county in which the case or cases may arise, and shall investigate, prepare, and bring to trial the case or cases to which he may be assigned. He shall take the oath of office required by law to be taken by district attorneys, and shall be clothed with all the powers and subject to all the liabilities imposed upon them by law. The compensation for services rendered, and necessary expenses incurred by such attorney or attorneys, shall be fixed by the Attorney General."

By this section authority is expressly conferred upon the Attorney General to fix the compensation of any special attorney appointed under its provisions, but the code is silent as to the source of payment.

The circumstances leading up to the request, in writing, of the president judge of Snyder County to the Attorney General for the appointment of a special attorney need not be detailed.

It is only necessary to note that the request was made at the instance of the district attorney of the county and that the president judge requested the Attorney General to retain and employ such attorney or attorneys as he might deem necessary "to properly represent the Commonwealth in investigating, preparing and bringing to trial Lester, Bertha and Zella Gill, or such of them as the evidence appears to warrant, on charges of being accessories before the fact to the murder of Charles Gable . . . . . . said cases being in the judgment of [the president judge] proper ones for the intervention of the Commonwealth and the Attorney General."

The material provision of the appointment made by the Attorney General on May 8, 1935, reads: "I hereby retain and employ as special attorney to represent the Commonwealth in the above proceedings, to investigate the charges therein and prosecute the alleged offenders, John L. Pipa, Jr., of Shamokin, Pennsylvania. Mr. Pipa will receive such compensation from the County of Snyder as shall hereafter be fixed by me and also his actual expenses incurred by him in performing his duties under this appointment."

Following the trial and acquittal of the Gills, the Attorney General made the following order: "Now, December 14th, A.D. 1935, by virtue of the power vested in me as Attorney General, by Act of Assembly of the Commonwealth of Pennsylvania, I hereby fix the fees of John L. Pipa, Jr., Esquire, Special Attorney in the above-captioned case, for professional services rendered in the preparation and trial of said case, at $1,360.50. This bill includes professional services and his expenses in full, and also includes a bill of Claudine G. Heckert for stenographic services in the amount of $60.50, and Leo Moerschbacher, Special Investigator, in the sum of $100.00. All of which is hereby certified to the Commissioners of Snyder County for payment."

Had the Attorney General authority in law to impose this liability upon the County of Snyder over the objection and protest of its commissioners?

The constitutionality of Section 907 of the Administrative Code of 1929, was upheld by our Supreme Court in Com. v. Lehman,309 Pa. 486, 491-3, 164 A. 526, in which case it was pointed out that this section of the code is merely the last of several statutes regulating the temporary displacement of a district attorney, beginning with the Act of March 12, 1866, P.L. 85, 16 P. S. § 3432, (authorizing the proper court to direct private counsel, under certain circumstances therein prescribed, to conduct prosecutions) and including the Act of May 2, 1905, P.L. 351, 71 P. S. § 817-819, and the Administrative Code of June 7, 1923, Article IX, P.L. 498, 550.

In the course of the opinion the historic development in this Commonwealth of the office of Attorney General and the office of district attorney was thus described: "Prior to the Act of May 3, 1850, P.L. 654, 16 P. S. § 1691, the Attorney General was represented in each county by his deputy who conducted criminal prosecutions; by that statute the office of district attorney was created and that officer was charged with the performance of the duties theretofore performed by the deputy attorney general. Thereafter the prosecutor was elected instead of appointed, but the power of general supervision vested in the Attorney General over the performance of a district attorney's duties in the county was not taken away; that power remained, and it is a matter of general information that the power has been exercised from time to time when necessary. In part, this supervision is now regulated by section 907 of the Administrative Code."

Section 907 of the Administrative Code of 1929 (which replaced section 907 of the similar code of 1923) and the above cited Act of 1905, both relate to the appointment of special attorneys by the Attorney General at the request of the president judge of the judicial district in question. With a single exception, the language is substantially the same in each of these legislative enactments. That exception is found in the third section of the Act of 1905, which reads:

"Section 3. The compensation for services rendered, and necessary expenses incurred, by the attorney or attorneys, so retained and employed, shall be fixed by the Attorney General,and paid by warrant drawn by the Auditor General upon the StateTreasurer." (Italics supplied)

Neither the Administrative Code of 1923 nor that of 1929 contained the language we have above italicized in the Act of 1905, nor did either expressly repeal the Act of 1905, though each contains a general clause repealing inconsistent legislation.

The question of the implied repeal of the Act of 1905 by the Code of 1929 was raised, but not decided, in our case of Com. exrel. v. Irvin, 110 Pa. Super. 387, 394, 168 A. 868. In that case the bill of the special attorney had been approved by two of the judges of the court below and by the county commissioners. The county controller withheld his approval and that mandamus was against him. We there stated specifically that we were not deciding whether the Act of 1905 had been repealed. The only question there involved was "whether or not the county may pay," and the only matter decided was that the controller could not prevent payment of the bill which the court below had approved and the county commissioners had ordered to be paid. Here, the situation is entirely different; payment by the county is vigorously resisted by the commissioners.

It seems to us that the question here involved need not, and indeed should not, turn upon the narrow issue of repeal by implication of the Act of 1905.

One thing is certain. There is nothing in the Code of 1929, or in any other legislative enactment called to our attention, which places the duty of payment upon the county. Moreover, Section 907 of the Code does not stand alone; it is a part of Article IX, relating to the Department of Justice. By Section 903 of that article it is provided, inter alia, that the Department of Justice "shall have the power, and its duty shall be" . . . . . . (b) "To represent the Commonwealth, or any department, board, commission, or officer thereof, in any litigation to which the Commonwealth or such department, board, commission, or officer, may be a party, or in which the Commonwealth or such department, board, commission, or officer, is permitted or required by law tointervene or interplead." (Italics supplied)

Then, in paragraph (b) of Section 906, the Attorney General is authorized "to appoint and fix the compensation" of "special attorneys, to represent the Commonwealth."

Neither in these sections nor in sections 213, 214 and 216, dealing generally with state officers and employees, is it specifically mentioned that they shall be paid by the Commonwealth — obviously because such special attorneys and other appointees are state officers and therefore entitled to be paid out of its treasury.

When we turn to Section 907 we find it referring to the Commonwealth's "intervention"; "properly to represent the Commonwealth," and "shall supersede the district attorney of the county."

We can see no reason for holding that the "special attorneys" appointed under Section 907 are in any different class or position, in so far as payment of their compensation is concerned, than are the "special deputy attorneys general" and "special attorneys" appointed under Section 906.

The fact that by the Code the special attorneys provided for in Section 907 were placed in the same class as the other special attorney's whose appointment is provided for in Article IX, probably accounts for the omission from Section 907 of the specific provision of the Act of 1905 directing that they be paid by the Commonwealth.

In every case in which "intervention" by the Commonwealth is proper, the Attorney General either intervenes personally, as in the recent case of Com. ex rel. Minerd v. Margiotti, 325 Pa. 17,188 A. 524 or by the appointment of a personal representative, as in the present case. The appointment may be made either under Section 906 or 907, as the nature of the case and the particular circumstances may require.

We think the conclusion inescapable that when the legislature undertook to codify the laws relating to the administration of the state government, it placed the personal representatives of the Attorney General, whose appointments are authorized by Section 907 of the Code, in exactly the same class as those authorized to be appointed under Section 906. Under each section the Attorney General was expressly authorized to fix the compensation of his appointees, and as the compensation of those appointed under Section 906 was, beyond question, to be paid by the Commonwealth, there was no occasion for repeating in Section 907 the express direction of the Act of 1905 relative to the source of payment.

For these reasons we agree with the contention of the appellant that in the rendition of the services for which he now claims compensation he was acting as a state, and not as a county, officer.

It logically follows, however, that he must look to the Commonwealth, and not to the County of Snyder, for his compensation. Under the conclusion we have reached, the appellees are not concerned with the propriety of including in his bill the items for stenographic services and the assistance of a special investigator.

Upon the whole case, we are of opinion that the Attorney General was without authority in law to direct and require that any part of appellant's compensation be paid by the County of Snyder.

Order affirmed.