Bachman v. McMichael

• Decision Date: 07 November 1913
• Docket Number: 635
• Citation: 242 Pa. 482,89 A. 573
• Parties: Bachman v. McMichael
• Court: Pennsylvania Supreme Court

89 A. 573

242 Pa. 482

Bachman v. McMichael

No. 635

Supreme Court of Pennsylvania

November 7, 1913

Argued October 24, 1913

Appeal, No. 635, Miscellaneous Docket No. 2, sur petition for writ of alternative mandamus in case of Samuel C. Bachman v Charles B. McMichael, William C. Ferguson and Howard W Davis. Demurrer to petition overruled.

Petition for a writ of alternative mandamus to be issued by the Supreme Court to the judges of the Court of Common Pleas, No. 3, for the County of Philadelphia, requiring them to show cause why they should not take exclusive jurisdiction of a cause assigned in the regular course of that court.

The opinion of the Supreme Court states the case.

John G. Johnson, for Samuel C. Bachman, petitioner -- The words "until otherwise directed by law," in the earlier and the last Constitution, are used in each with an entirely different context.

No interpretation of the meaning of words like those in the present Constitution, made under the context of the antecedent Constitutions, is applicable in the present.

The decisions under the earlier Constitutions were the direct result of an interpretation of those Constitutions which held them to confer express power to alter the Constitution of the specified establishment: Commonwealth v. Smith, 4 Binney 117; Commonwealth v. Flanagan, 7 Watts & Sergeant 68; Commonwealth v. Nathans, 2 Pa. 138; Kilpatrick v. Commonwealth, 31 Pa. 198; Foust v. Commonwealth, 33 Pa. 338.

Express power is conferred upon the legislature to increase the number of the courts. This carries with it the negation of any power to decrease. The increase, however, by the legislature, is subject to the provision requiring that the new courts shall be designated by successive numbers.

The power to increase the number of judges is further subject to the restriction that whenever it "shall amount in the whole to three, such three judges shall compose a distinct and separate court as aforesaid, which shall be numbered as aforesaid."

Nothing can be more widely different in context than Article V, Section 6, in the Constitution of 1874, and Article V, Section 4, in the prior Constitution. In the latter, a temporary establishment is provided for, subject to contrary direction by law. In the former, the provision is a permanent, continuing one.

It is absolutely required, without any restriction or qualification as to the existence of the courts, that they shall be at least four in number, composed of at least three judges; that they may be increased, but that this increase shall be by the addition of courts: Commonwealth v. Green, 58 Pa. 226; Morgan v. Reel, 213 Pa. 81; Commonwealth v. Hipple, 69 Pa. 9; Commonwealth v. Bell, 4 Pa. Superior Ct. 187; Myers v. Commonwealth, 79 Pa. 308.

Alex. Simpson, Jr., for defendants. -- There is nothing in Section 6, of the Constitution, in antagonism, or suggested antagonism to Section 4.

The two sections are dealing with different matters, and each is complete in itself. Section 6 is dealing with the plan which the Constitution is providing for their commencement thereunder; that is, so long as there are separate Courts of Common Pleas, the plan is provided for their continuance as of three members each. Section 4 is dealing with the system itself, that is, it shall be the old system as constitutionally changed by Section 6, "until otherwise directed by law."

Any other construction would make the words "until otherwise directed by law" in Section 4, absolutely meaningless; for if that section had said only "The Courts of Common Pleas shall continue as at present established, except as herein changed," then, as Section 6 furnishes a complete plan for the change, not only for the beginning with four courts of three judges each, but for all future judges who might be added to the courts, nothing else is needed for the opposite construction of that herein claimed.

The contention of the defendants is immeasurably strengthened by numerous decisions of this court under the Constitutions of 1790 and 1838, which contain language almost identical with that of Article V, Section 4, of the existing Constitution: Com. v. Allegheny County, 32 Pa. 218; Cronise v. Cronise, 54 Pa. 255; Booth v. Miller, 237 Pa. 306; Moers v. Reading, 21 Pa. 188; Com. v. Mathues, 210 Pa. 372; Pittsburgh v. Railroad Co., 205 Pa. 13; Com. v. Zephon, 8 W. & S. 382; Com. v. Martin, 2 Pa. 244; Kilpatrick v. Com., 31 Pa. 198; Foust v. Com., 33 Pa. 338; Com. v. Gamble, 62 Pa. 343; In Application of the President Judges of the Eighth and Tenth District, 64 Pa. 33; Com. v. Hipple, 69 Pa. 9; Myers v. Com., 79 Pa. 308; Com. v. Bell, 4 Pa. Superior Ct. 187; Morgan v. Reel, 213 Pa. 81; Gottschall v. Campbell, 234 Pa. 347; Com. v. Johnson, 236 Pa. 412; Com. v. Hopkins, 241 Pa. 213.

Before FELL, C.J., BROWN, MESTREZAT, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE BROWN:

By the sixth section of the judiciary article of the Constitution, which went into effect January 1, 1874, there were established in Philadelphia County four distinct and separate Courts of Common Pleas of equal and coordinate jurisdiction, and in pursuance of the provisions of that section, the legislature in 1903 increased the number of said courts to five. On June 11, 1913, the governor of the Commonwealth approved an act consolidating these five Courts of Common Pleas into one. The question for determination in this proceeding is the constitutionality of that act. If it be legislation not forbidden by the Constitution, this petition must be dismissed but if, no the other hand, it is forbidden by that instrument, the relief prayed for cannot be withheld.

The determination of the question before us depends upon the meaning to be given to the words of the fourth and sixth sections of Article V, of the Constitution. They are as follows: "Section 4. Until otherwise directed by law the Courts of Common Pleas shall continue as at present established, except as herein changed; not more than four counties shall, at any time, be included in one judicial district organized for said courts." "Section 6. In the counties of Philadelphia and Allegheny all the jurisdiction and powers now vested in the District Courts and Courts of Common Pleas, subject to such changes as may be made by this Constitution or by law, shall be in Philadelphia vested in four, and in Allegheny in two, distinct and separate courts of equal and co-ordinate jurisdiction, composed of three judges each; the said courts in Philadelphia shall be designated respectively as the Court of Common Pleas Number One, Number Two, Number Three and Number Four, and in Allegheny as the Court of Common Pleas Number One and Number Two; but the number of said courts may be by law increased, from time to time, and shall be in like manner designated by successive numbers; the number of judges in any of said courts, or in any county where the establishment of an additional court may be authorized by law, may be increased from time to time, and whenever such increase shall amount in the whole to three, such three judges shall compose a distinct and separate court as aforesaid, which shall be numbered as aforesaid. In Philadelphia all suits shall be instituted in the said Courts of Common Pleas without designating the number of said court, and the several courts shall distribute and apportion the business among them in such manner as shall be provided by rules of court, and each court, to which any suit shall be thus assigned, shall have exclusive jurisdiction thereof, subject to change of venue, as shall be provided by law. In Allegheny each court shall have exclusive jurisdiction of all proceedings at law and in equity, commenced therein, subject to change of venue as may be provided by law." It is insisted that the legislative authority for the passage of the Act of June 11, 1913, is found in the above quoted fourth section of the judiciary article, the contention being that its words mean that the five distinct and separate Courts of Common Pleas constitutionally established in Philadelphia must cease to exist when "otherwise directed by law" -- by an act of the legislature. In support of this view we are referred to Com. v. Zephon, 8 W. & S. 382; Com. v. Martin, 2 Pa. 244; Kilpatrick v. Com., 31 Pa. 198; Foust v. Com., 33 Pa. 338; Com. v. Gamble, 62 Pa. 343, and other cases in which our predecessors discussed the legislative power over the organization and control of courts as conferred by the Constitutions of 1790 and 1838. Those discussions, though interesting, are not helpful to us in this proceeding, for we do not regard them as pertinent to the sections of the present Constitution upon which reliance is placed in support of the validity of the Act of 1913. The Constitution of 1790 provided that "until otherwise directed by law" the several Courts of Common Pleas in the Commonwealth should be established in the manner therein stated. It temporarily established those courts, to be changed whenever the legislature might so direct. No other meaning could have been given to its words, "until it...