Commonwealth ex rel. Reeder v. Pattison

109 Pa. 165, 1885 Pa. LEXIS 500

• Court: Supreme Court of Pennsylvania
• Decided: May 18, 1885
• Docket: No. 13
• Status: Published

Opinion

Mr. Justice Sterrett

delivered the opinion of the court

The single question presented by this record is whether, under the admitted facts, the Constitution prescribes a rule for determining which of the present judges of the Third Judicial District should be commissioned as president of the several courts therein. If it does, every Act of Assembly inconsistent therewith must yield. If, on the other hand, the case before us has not been provided for by the Constitution of 1874, it is equally clear the Acts relied on by the relator are not only in force, but they fully sustain his contention and entitle him to a commission as president judge of the district.

In the body of the Constitution there appears to be no provision for determining the right of succession to the office in question. Indeed the office of president judge, as such, is not even recognized in the judiciary article. Judges of the inferior courts are there spoken of simply as “judges of the Court of Common Pleas,” “judges required to be learned in the law,” “ judges learned in the law,” “ additional law judges,” etc. The seventeenth section makes provision for determining “priority of commission ” in cases where two or more judges of the Common Pleas for the same district are elected at the same time. The omission to provide, in the judiciary article, for succession to the president judgeship is significant and even suggestive of a purpose to change the previously existing system, in that respect, and make provision therefor elsewhere in the Constitution. We accordingly find that provision has been made in the schedule for every contingency that can possibly arise in the several courts of the first and fifth judicial districts, and at least partial, if not full and complete provision for all other Courts of Common Pleas. The eighteenth section of the schedule declares, “The Courts of Common Pleas in the counties of Philadelphia and Allegheny shall be composed of the present judges of the District Court and Court of Common Pleas of said counties until their offices shall severally end, and of such other judges as may from time to time be selected.” After designating by name &c., the judges who, for the purpose of first organization, shall compose each of the four courts in Philadelphia, the same article further declares, “The judge first named shall be the president judge of said courts respectively, and thereafter the president judge shall be the judge oldest in commission; but any president judge re-elected in the same court or district shall continue to be president judge thereof.” This latter provision is substantially a repetition of a clause in the sixteenth article of the schedule. In like manner, after providing for first organization of the two Courts of Common Pleas of Allegheny county, the following section prescribes the same rule of succession to the president judgeship of those courts. These sections of the schedule, in connection with the provision, heretofore referred to, for determining “priority of commission,” form a complete system, providing for every contingency that can possibly happen in either of the courts of those two districts. The most prominent feature of the system is that the judge senior in continuous service in each of said courts shall be the president thereof. In 1877, upon the resignation of the president judge of the Court of Common Pleas Number One of the Fifth District, the question arose, which of the remaining judges should be commissioned to fill the vacancy. The judge holding the more recently dated commission had been longer in continuous service than the other, and the Governor, being advised by the then Attorney General that the phrase “oldest in commission,” meant “ oldest in continuous service,” without regard to the date of the commission under which he was then serving, issued the commission accordingly. So far as we know, this construction, as to the correctness of which we entertain no doubt, has ever since been adhered to by the executive department.

The sixteenth article above referred to contains a permanent clause of general application, under which president judges when re-elected become their own successors. It also provides for the special case of courts composed of two or more judges learned in the law, all of whom are elected at the same time, by declaring “ they shall decide by lot which shall be president judge.” The fifteenth article says, “Judges learned in the law of any court of record, holding commissions in force at the adoption of this Constitution, shall hold their respective offices until the expiration of the terms for which they were commissioned, and until their successors shall be duly qualified.” This of course embraces all president judges then in commission, and in effect declares that every such president judge shall hold the office until the expiration of liis term and until his successor shall be duly qualified. The next inquiry naturally suggested is, who shall be president judge of the respective courts thereafter, that is to say, when a vacancy occurs at any time after the expiration of commissions in force at the adoption of the Constitution ? The answer is found in the first clause of the sixteenth article, viz.: “The judge of such court learned in the law and oldest in commission shall be the president judge thereof.” Construing the fifteenth section, so far as it relates to president judges, in connection with the first sentence of the sixteenth section, we have substantially this provision, viz.: President judges in commission at the adoption of this Constitution shall hold their respective offices until the expiration of the terms for which they were commissioned, and thereafter the judge, of each court respectively, learned in the law and oldest in commission, shall be the president judge thereof. This general rule of succession is of course qualified by the two special provisions above referred to as contained in the first sentence of the sixteenth article. Thus construed, every provision of the article is permanent and we have a uniform rule, applicable alike to all courts of common pleas, by which to determine the succession to the president judgeship in every possible contingency. We have no doubt this was what was intended, but the thought was not as clearly expressed perhaps as it might have been. It is a mistake to suppose the word “ after,” with which the sixteenth section commences, is employed in the sense of “upon,” thereby limiting the application of the rule of succession to the single event of the expiration of each commission in force at the adoption of the Constitution. It was evidently used in the sense of “ thereafter ” referring not only to the expiration of the respective commissions then in force but to the expiration of every subsequent commission. If we construe it otherwise we are forced to the unreasonable conclusion that the first clause of the sentence is only a temporary provision, while the others are permanent.

The idea of establishing a rule, by which the judge oldest in continuous service will be president of the court, is neither new nor unnatural. In this state it was first embodied in the amendment of 1850, providing, inter alia, that the judge of this court, “whose commission will first expire shall be chief justice,” &c. The same provision is incorporated in the present Constitution ; and we have no doubt it was the intention of the framers of that instrument to apply the same rule to the several courts of Common Pleas throughout the state, and we think they have done so in language that does not fairly admit of any other reasonable construction. My first impression was otherwise, but a careful examination of all the provisions relating to the subject satisfied me that the framers of -the Constitution intended to establish a uniform system, whereby the judge oldest in commission in each of the courts of Common Pleas should be president judge thereof, subject to the temporary qualification that president judge in commission at the adoption of the Constitution should continue to serve as such, notwithstanding they might have associates, learned in the law, who were their seniors in continuous service. I now recall at least one case within the protection of that provision — a president judge who was the junior, in service, of one of his associates on the bench.

We find no error in the judgment of the court below. If the president of the Third Judicial District had been re-elected at the last general election, he would have been entitled to his commission as president judge, but, failing to be re-elected, the governor rightly commissioned his former associate, learned in the law, as president judge.

Judgment affirmed.