Daly v. Hemphill

• Decision Date: 04 June 1963
• Citation: 191 A.2d 835,411 Pa. 263
• Parties: John F. DALY, Chief Magistrate of Philadelphia v. Alexander HEMPHILL, Controller of the City of Philadelphia, and Francis A. Lalley, Finance Director of the City of Philadephia, and Philip M. Poorman, Treasurer of the City of Philadelphia, Appellants (two cases). John REESE and Charles Dougherty v. Alexander HEMPHILL, Controller of the City of Philadelphia, and Francis A. Lalley, Finance Director of the City of Philadelphia and Philip M. Poorman, Treasurer of the City of Philadelphia, Appellants. Appeal of Luther BLACK, an intervening defendant.
• Court: Pennsylvania Supreme Court

Page 835

191 A.2d 835

411 Pa. 263

John F. DALY, Chief Magistrate of Philadelphia v. Alexander HEMPHILL, Controller of the City of Philadelphia, and Francis A. Lalley, Finance Director of the City of

Philadephia, and Philip M. Poorman, Treasurer of the City of

Philadelphia, Appellants (two cases).

John REESE and Charles Dougherty v. Alexander HEMPHILL, Controller of the City of Philadelphia, and Francis A. Lalley, Finance Director of the City of

Philadelphia and Philip M. Poorman, Treasurer of the City of

Philadelphia, Appellants.

Appeal of Luther BLACK, an intervening defendant.

Supreme Court of Pennsylvania.

June 4, 1963.

Rehearing Denied in No. 212, July 1, 1963.

James L. Stern, Deputy City Solicitor, Herbert B. Newberg, Ellis A. Horwitz, Asst. City Solicitors, Levy Anderson, First Deputy City Solicitor, Edward G. Bauer, Jr., City Solicitor, Philadelphia, for appellants.

Edward R. Becker, Stanley M. Greenberg, William A. Meehan, Edwin E. Naythons, Philadelphia, for appellees.

Herbert S. Levin, Philadelphia, for intervenor, Luther Black.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

ROBERTS, Justice.

Appellee, John F. Daly, was appointed Chief Magistrate of the City of Philadelphia by the Governor on February 11 1963. ¹ Shortly thereafter, Chief Magistrate Daly removed thirteen employees who had served the magistrates' courts in various capacities. ² In addition, he appointed appellee Reese as a bailiff in the divisional police court and appellee Dougherty as a writ server in Traffic Court. The Chief Magistrate notified appellants, the City's auditing and disbursing officers, of the dismissals and appointments, and requested that only payroll vouchers verified and signed by him be approved for payment. Appellants refused to comply with this request.

For at least twenty-five years prior to this proceeding (and perhaps for ten years longer), there had been no challenge to the authority of a Chief Magistrate to appoint and dismiss employees such as are here involved. In 1937, the Board of Magistrates directed by rule that: 'The Chief Magistrate shall appoint all persons necessary and as are provided for by law.' On January 11, 1963, however, by resolution, the Board of Magistrates, for the first time, created a personnel committee to assume the power of appointment and discharge of employees and provided specifically:

'No certification of the payroll shall be effective without the joinder of the Chief Clerk, the Chief Magistrate and the Secretary of the Board of Magistrates; provided, however, that if the Chief Clerk or the Chief Magistrate or both of them shall be unable or unwilling to approve * * * without such cause as shall appear to a majority of the members of the Board of Magistrates in their sole discretion to be good cause then and in that event, the Secretary [apparently selected by a majority of the Board] shall approve the payroll and his signature alone shall be sufficient * * *.'

On the basis of this resolution, appellants refused to accede to Chief Magistrate Daly's request.

A complaint in equity was filed by appellee Daly to enjoin appellants from interfering with the performance of his duties as Chief Magistrate. Simultaneously, the two employees appointed by him instituted actions in mandamus against appellants. Subsequently, the thirteen dismissed employees were granted permission to intervene. These actions were consolidated below and will be considered here as one appeal. The City filed preliminary objections in the nature of a demurrer. Counsel agreed that since only questions of law were involved, the disposition of these objections would be a final appealable order and that the filing of exceptions would be waived. The court below dismissed the preliminary objections, enjoined appellants from interfering with the actions of the Chief Magistrate, and ordered them to pay the salaries of appellees Reese and Dougherty.

Prior to determining whether or not there is authority in the Chief Magistrate to appoint and remove employees, it is necessary to resolve a contention raised by appellant-intervenor Black (one of the dismissed employees) that Section 32 of the Magistrates' Court Act of 1937, ³ which provides that '* * * the Governor shall select from among the [elected] magistrates a chief magistrate * * *,' ⁴ is an unconstitutional infringement upon the judicial power vested in the magistrates' courts ⁵ in violation of the principle of separation of powers, and that the Governor, therefore, is without authority to appoint or remove a Chief Magistrate. As basic support, appellant-intervenor relies upon Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935), in which the Supreme Court of the United States held that the President lacked the power to remove a member of the Federal Trade Commission, a quasi-judicial body, who had been appointed by the preceding President. The authority of that decision on the separation of powers is unquestioning. Pennsylvania has long adhered to the doctrine of separation of powers. An encroachment upon the judicial power by the legislature, or such encroachment by legislative delegation of power to the executive, would be a violation of that principle. See, e. g., Commonwealth v. Knox, 172 Pa.Super. 510, 94 A.2d 128 (1952), aff'd per curiam, 374 Pa. 343, 97 A.2d 782 (1953). However, no such encroachment upon judicial power has been shown here to exist.

Should the Governor choose to remove a Chief Magistrate, the latter no longer serves in the capacity of Chief Magistrate, but he does retain his judicial position undisturbed until the expiration of his elected term. In Humphrey, however, had the dismissal been effective, the commissioner would have been removed from the FTC prior to the completion of his statutory term of office. Further, the duties of the Chief Magistrate, beyond those performed as magistrate, are purely administrative and executive responsibilities dealing with the non-judicial functions of the magistrates' courts, and are not part of the judicial power. The assignment of magistrates to Traffic, Court ⁶ and to divisional police courts ⁷ must be in accordance with a rotation system merely administered by the Chief Magistrate. Likewise, provision by him for appointment of stenographers ⁸ and the appointment of the chief clerk and deputy stenographic clerk ⁹ and no more within the judicial power than the fixing of compensation of court employees upheld in Leahey v. Farrell, 362 Pa. 52, 66 A.2d 577 (1949), or the legislative direction placing the Clerk of the Court of Quarter Sessions under jurisdiction of the city in Lennox v. Clark, 372 Pa. 355, 93 A.2d 834 (1953), or the subsequent placing of employees of the Clerk of Quarter Sessions under municipal civil service in Dwyer v. Dilworth, 392 Pa. 123, 139 A.2d 653 (1958). He serves as administrative representative and executive head of the Board of Magistrates and executes the rules and regulations which the Board is empowered or authorized to adopt. ¹⁰ Similarly, analysis of all other functions of the Chief Magistrate, apart from his judicial duties as a magistrate, leads to the same conclusion. There is no violation of the separation of powers or encroachment upon judicial independence in the appointment of a Chief Magistrate by the Governor. The grant of this authority to the Governor is well within the law-making sphere of the Legislature. ^10a

It is also contended that it is unconstitutional for the Legislature to confer any appointive powers upon the Chief Magistrate. In Lennox v. Clark, supra, strongly relied upon to support this position, the office of Prothonotary of the Courts of Common Pleas of Philadelphia was held to be an integral part of the judicial power but only by virtue of specific constitutional provision. ¹¹ The Board of Magistrates is not a constitutional entity nor is it in any sense a court or judicial forum. The Board, as such, is not invested with judicial power nor does it render judicial determinations. Rather, it is a creation of the Legislature composed of twenty-eight magistrates organized into a board for administrative purposes only. The employees here involved, just as in Dwyer v. Dilworth, supra, and Leahey v. Farrell, supra, are subject to reasonable legislative control and may be placed under the authority and supervision of a Chief Magistrate.

In seeking to attribute to the Magistrates' Act constitutional infirmity on the ground of legislative and executive interference with judicial independence, appellant-intervenor misapplies the mandate of separation of powers to the delegation and performance of executive and administrative duties which are not part of the judicial process of magistrates' courts. Such delegation neither restrains nor interferes with judicial power. The power of appointment is intrinsically and historically an executive function. See, e. g., Municipality of St. Thomas & St. John v. Gordon, 78 F.Supp. 440 (D.V.I.1948); Tucker v. State, 218 Ind. 614, 35 N.E.2d 270 (1941); Taylor v. Commonwealth, 26 Ky. 401, 3 J.J.Marsh (1830); In re Opinion of the Justices, 303 Mass. 615, 21 N.E.2d 551 (1939); State ex rel. Johnson v. Myers, 74 N.D. 678, 19 N.W.2d 745 (1945).

In this and in other cases in which a statute has been constitutionally attacked, all our courts have been governed by the rule that 'we can declare an Act of Assembly void, only when it violates the Constitution clearly, palpably, plainly; and in such manner as to leave no doubt or hesitation in our minds.' Sharpless v. Mayor of Philadelphia, 21 Pa. 147, 164 (1853). (Emphasis in the original.) This rule has been variously stated. In several cases this Court has adopted the rule laid down in the Sharpless case, supra. This language was repeated in Trantor v. Allegheny County Authority, 316 Pa. 65, 75, 173 A. 289 (1934); Kelley v. Baldwin, 319 Pa. 53, 54, 179 A. 736 (1935); Lighton v. Abington...