Stander v. Kelley

Decision Date07 February 1969
Citation433 Pa. 406,250 A.2d 474
PartiesIrvin STANDER and Alexander H. Lindsay, Appellants, v. Joseph J. KELLEY, Jr., Secretary of the Commonwealth of Pennsylvania.
CourtPennsylvania Supreme Court

James E. Beasley, Philadelphia, for appellant.

William C. Sennett, Atty. Gen., Edward Fridman, Counsel General Department of Justice, Harrisburg, for appellee.

W J. Krencewicz, Shenandoah, for interested person under Rule 65.

Ira P. Tiger, Ralph S. Snyder, Samuel D. Slade, Bernard G. Segal Philadelphia, for Pennsylvania Bar Ass'n; Schnader Harrison, Segal & Lewis, Philadelphia, of counsel.



BELL, Chief Justice.

On April 23 1968, the eligible voters of Pennsylvania adopted several amendments to the Constitution of Pennsylvania. Included among these was a complete revision of Article V relating to the Judiciary. The vote approving the new Judiciary Article, which superseded the old Judiciary Article, was 910,855 in favor and 729,845 against.

The plaintiffs, taxpayers and owners of real estate in Pennsylvania, on April 11, 1968 filed a taxpayers' Complaint in Equity against the Secretary of the Commonwealth in the Dauphin County Common Pleas Court, in which the Court was asked to enjoin a vote by the electorate on the new proposed Constitutional Amendments and to hold them invalid and void.

The plaintiffs, on April 11, 1968, had originally attempted to obtain a preliminary injunction which sought to enjoin the Secretary of the Commonwealth from printing the questions pertaining to the Constitutional amendments on the ballots to be furnished the electors at the April 23, 1968 election. The Dauphin County Common Pleas Court refused to grant the Preliminary injunction, principally on the basis of the plaintiffs' laches [1] in waiting until the 'eve' of the election to bring their action. An appeal was taken to this Court, which affirmed the dismissal of the preliminary injunction on the ground that the Court below had not committed a clear abuse of discretion or a palpable error of law: Stander v. Kelley, 432 Pa. 1, 246 A.2d 649. An amended complaint was thereafter filed seeking permanent equitable relief. This too was denied by the Dauphin County Court and its Order dismissing the complaint and entering a decree in favor of the defendant serves as the basis for the present appeal.

Because of the tremendous importance of this question to all the people of Pennsylvania, we shall first point out what questions are, and what questions are not involved, and then discuss several of the contentions made by the Commonwealth and all of the principal contentions made by the appellants. [2] The broad question involved is whether the new Judiciary Article V, which in practical effect repealed Article V of the Constitution of 1874, is Constitutional or is null and void. It is unnecessary at this time and in this case to unravel the conflicts or to interpret the many ambiguities which exist in the new Judiciary Article, or the wisdom or foolishness of any of its provisions. Speaking more specifically, the questions involved are: Was the new Judiciary Article adopted by the people without violating the existing Pennsylvania Constitution of 1874, or the Constitution of the United States, or any pertinent Act of the Legislature?


The Commonwealth contends that none of the questions raised by appellants nor the Constitutionality of the new Judiciary Article itself is justiciable, because the ultimate sovereign power of our Government reposes in the people and the people have approved by their vote the new Judiciary Article. The Attorney General supports this position by a reference to Woods's Appeal, 75 Pa. 59; Wells v. Bain, 75 Pa 39; Armstrong v. King, 281 Pa. 207, 126 A. 263; Taylor v. King, 284 Pa. 235, 130 A. 407.

In Taylor v. King, 284 Pa. 235, 130 A. 407, supra, the Court considered a mandamus action to compel the Secretary of the Commonwealth to advertise a proposed Constitutional Amendment. The Court said, inter alia (page 239, 130 A. page 408):

'The Constitution of the State may be legally amended in the manner specifically set forth therein, Or a new one may be put in force by a convention duly assembled, its action being subject to ratification by the people, [3] but these are the only ways in which the fundamental law can be altered. * * *

'There may be technical error in the manner in which a proposed amendment is adopted, or in its advertisement, yet, if followed, unobjected to, by approval of the electors, it becomes a part of the Constitution. * * *'

In Armstrong v. King, 281 Pa. 207, 126 A. 263, supra, the Court held that the bonus amendment which had previously been submitted to and rejected by the people under the authority of Article XVIII of the 1874 Constitution could not again be submitted within the five-year period, and enjoined the officers of the Commonwealth from advertising the proposed amendment. The case is well stated in the Syllabus (page 207, 126 A. 263): '5. Where such proposed amendment has been adopted by two successive legislatures, has been approved by a majority of the electors, has been acted upon by those charged with administration under it, and public or private rights would be injuriously affected by setting it aside, it is too late to do so, even by a direct attack on the ground that it was submitted for approval at the wrong time, and it cannot then be collaterally attacked for any reason.' The Court said (page 214, 126 A. page 265): 'Under what circumstances, if any, a direct attack can be made on a constitutional amendment, after adoption by the people, because of a failure to comply strictly with some procedural condition leading up to the submittion, has been the subject of many and lengthy opinions, with results impossible of reconciliation.' Although unnecessary to the result reached, the Court again approved the calling of a Convention to amend the Constitution of this Commonwealth if approved by vote of the people, and stated that mere errors of procedure would not invalidate the vote of the people.

The Attorney General contends that the aforesaid cases hold that the Constitutionality of a Constitutional amendment can be challenged in the Courts Before its approval by the electorate, But never after. Although some language in these cases may support the Commonwealth, this Court, nevertheless did take jurisdiction and considered the questions raised.

Woods's Appeal, 75 Pa. 59, contains some language, as do the cases above, which supports the Attorney General's contention that a Constitutional amendment can be challenged in the Courts Before its approval by the electorate But never after. Assuming these cases are apposite, if they hold as the Commonwealth contends, the foolishness of such a holding in the present era is obvious. If there is a palpable violation or violations of the existing Constitution, the Commonwealth contends that that question or issue is Justiciable if decided by the Courts one week or One day prior to the election, But is not justiciable one day after the people have voted to approve or adopt the Amendment, no matter now clearly the provisions of the existing Constitution may have been violated. Furthermore, under the theory of the Commonwealth, a trial Court or an appellate Court could unintentionally or intentionally enable a palpable violation or violations of the Constitution of Pennsylvania, or of the Constitution of the United States, to become Constitutional and nonjusticiable, [4] if, through an overload of work, or inadvertence, or laziness, or incompetence, or illness, or for any reason whatsoever it failed to render a decision before the question was approved by the vote of the people. However, the recent decisions of the Supreme Court of the United States are analogous and controlling. They expressly and specifically hold that (1) A vote of the people cannot validate and Constitutionalize anything which violates a provision of the Constitution, and (2) This question or issue of Constitutionality is justiciable after the voters have adopted such a provision: Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663; Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481; Lucas v. 44th General Assembly of Colorado, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632; Jordan v. Silver, 381 U.S. 415, 85 S.Ct. 1572, 14 L.Ed.2d 689; cf. Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (Jan. 20, 1969); cf. also Butcher v. Bloom, 420 Pa. 305, 216 A.2d 457.

These cases demonstrate that Constitutionally ordained rights must and will be protected by the Courts against the will as well as against the vote of a majority of the people. In Lucas v 44th General Assembly of Colorado, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632, supra, the Court pertinently said (pp. 736--737, 84 S.Ct. pp. 1473, 1474): 'Courts sit to adjudicate controversies involving alleged denials of constitutional rights. * * * An individual's constitutionally protected right to cast an equally weighted vote cannot be denied Even by a vote of a majority of a State's electorate, if the apportionment scheme adopted by the voters fails to measure up to the requirements of the Equal Protection Clause. Manifestly, the fact that an apportionment plan is adopted in a popular referendum is insufficient to sustain its constitutionality or to induce a court of equity to refuse to act. As stated by this Court in West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 1185, 87 L.Ed. 1623, 'One's right to life, liberty, and property * * * and other fundamental rights may...

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