Commonwealth v. Potts

• Decision Date: 20 October 1873
• Citation: 79 Pa. 164
• Parties: Commonwealth <I>ex rel.</I> Attorney-General <I>versus</I> Potts.
• Court: Pennsylvania Supreme Court

Page 164

79 Pa. 164

Commonwealth ex rel. Attorney-General versus Potts.

Supreme Court of Pennsylvania.

October 7, 1873.

October 20, 1873.

October 7th 1873.

Before READ, C. J., AGNEW, SHARSWOOD, WILLIAMS and MERCUR, JJ.

Quo Warranto from the Supreme Court, issued May 12th 1873, by the Commonwealth, upon the suggestion of the Attorney-General, against James Potts, that the respondent unlawfully was exercising and claimed to exercise the office of President Judge of the District Court of Cambria; the writ called on him to show by what authority he claimed to exercise the office.

L. D. Gilbert, Deputy Attorney-General, and Dimmick, Attorney-General, for Commonwealth, cited: The Commonwealth v. Swank, antea, p. 154.—When part of a statute is unconstitutional, that which is constitutional can have effect only when enough remains to be intelligibly acted upon: Clark v. Ellis, 2 Blackf. 8; Campbell v. Bank, 8 Howard (Miss.) 625; Robison v. Bidwell, 22 Cal. 379; McCready v. Sexton, 29 Iowa 356; Lathrop v. Mills, 19 Cal. 513; Sants v. State of Iowa, 2 Iowa 165; People v. Hill, 7 Cal. 97; State v. Commissioners, 5 Ohio 497; Commonwealth v. Clapp, 5 Gray 97; Slawson v. City of Racine, 13 Wis. 398. Where a law is plain and unambiguous, whether expressed in general or limited terms, there is no room for construction, and a resort to extrinsic facts is not permitted to ascertain its meaning: Bartlett v. Morris, 9 Porter (Ala.) 266; 3 Blatch. C. C. R. 325. Where several acts upon the same general subject are inconsistent or doubtful in meaning, they should be examined together, and the probable intent of the legislature, as ascertained from the acts in their connection and from the attending circumstances, should be carried into effect: Le Roy v. Chalotta, 2 Abb. (U. S.) 448; State v. Stewart, 47 Mo. 382. Where there is an apparent conflict but no direct inconsistency between statutes relating to the same subject, they should be regarded in pari materia and as one statute, so as to give them such an exposition as will sustain what appears to have been the main intent of the law-makers: Board of Commissioners v. Cutler, 6 Ind. 354. Even the title and preamble of a statute will not be referred to as explanatory of it where there is no ambiguity as to its intent in the statute itself: Eastman v. McAlpine, 1 Kelly 157; Comparison of statutes can be made only when the statutes are in pari materia; Church v. Crocker, 3 Mass. 17, 21; Thayer v. Dudley, Id. 296; Holland v. Makepeace, 8 Id. 418; Holbrook v. Holbrook, 1 Pick. 248; Mendon v. Worcester, 10 Id. 235; State v. Baldwin, 2 Bailey 541. Where the parts of a statute are so materially connected and dependent as to warrant a belief that the legislature intended them as a whole, and that if all could not be carried into effect the legislature would not pass the residue independently, if some parts are unconstitutional and void, all the provisions which are thus dependent are void, &c.: Warren v. Charlestown, 2 Gray 84; Hitchings v. _____, 5 Id. 482; State v. Commissioners, 5 Ohio 497; Reed v. Omnibus Railroad Co., 33 Cal. 212; Lathrop v. Mills, 19 Id. 513; Slawson v. Racine, 13 Wis. 398. A statute should be interpreted so as to act prospectively and not retrospectively, unless the language is so clear as to preclude all questions as to the intention of the legislature: Neff's Appeal, 9 Harris 243; Steckel's Appeal, 14 P. F. Smith 493; Becker's Appeal, 3 Casey 52.

J. Scott and H. D. Foster, for respondent.—A statute may be unconstitutional as to one part and valid as to the residue: Clark v. Ellis, 2 Blackf. 8. A constitution is paramount to the power of a legislature, and every act of the legislature repugnant to it is absolutely void: Vanhorne v. Dorrance, 2 Dall. 308. If an act repealing a former act be decided by a court to be unconstitutional and void, the former act remains in full force and virtue: Commonwealth v. Mann, 5 W. & S. 403. Can the rights and powers of a judge de facto, with color of title, be questioned in any form, except by quo warranto at the suit of the Commonwealth? Clark v. Commonwealth, 5 Casey 129. In answer to the writ the existence of the vacancy is explicitly averred and relied upon and is admitted by the demurrer. The Commonwealth is therefore estopped from denying the vacancy: Commonwealth v. Primrose, 2 W. & S. 407. If, then, there was a vacancy, the Act of the 27th of April 1852, Pamph. L. 465, 1 Br. Purd. 817, pl. 11, makes provision for filling it: Commonwealth v. Maxwell, 3 Casey 444.

Mr. Justice AGNEW delivered the opinion of the court, October 20th 1873.

It is true this case is not ruled absolutely by that of The Commonwealth v. George T. Swank, decided in Harrisburg in 1872, antea, p. 154, the respondent now not then being a party, yet the ground on which his claim rests to the office of President Judge of the District Court of Cambria county was fully considered. The opinion then expressed was rendered necessary to prevent ruinous litigation and uncertainty in the administration of justice within the district, and cannot be treated as a mere obiter dictum, or a thing said by the way.

It is unnecessary to repeat all we said of the unauthorized character of the court, as organized by the Act of April 13th 1869, P. L. 894. The pith of the opinion in this respect is contained in the following sentences: "It is evident that when, by the proviso, the legislature directed the court should be organized by the President and Associate Judges of the courts of Cambria county, it excluded all others from the office. The proviso, it is true, is not according to the Constitution, and the judges of the courts of Cambria county cannot fill the offices, but its effect was to qualify the enactment, so that no others could fill it without further legislation; no substitute having been provided, the court, not being one of those created by the Constitution itself, has nothing to stand upon except the law which created it, and this being defective in its vital part, it is left without any legal organization."

It is now contended that the legislature, having created...