Margiotti Appeal

75 A.2d 465, 365 Pa. 330, 1950 Pa. LEXIS 461

• Court: Supreme Court of Pennsylvania
• Decided: August 31, 1950
• Docket: Appeal, 217
• Status: Published

Opinions

Opinion by

Mr. Justice Horace Stern,

We assume — as fairly we must in the absence of evidence to the contrary — that neither the District Attorney of Allegheny County nor the Attorney General of the Commonwealth has been guilty of any improper motivations in the performance of their respective official duties in connection with the events giving rise to the present controversy. The question for this Court to determine is whether statements of the District Attorney, his actions, failure to act, delays in action, or conduct in general, however free from any purposeful wrongdoing, justified the Attorney General, in the exercise of his quasi-judicial discretion, in concluding that it would be in the public interest and for the public welfare to supersede him in the direction and control of a grand jury investigation of violations of the law in the use of city labor and materials of the City of Pittsburgh.

In Commonwealth ex rel. Minerd v. Margiotti, 325 Pa. 17, 30, 31, 188 A. 524, 530, Mr. Justice Schaffer (later Chief Justice), in a learned and comprehensive opinion, after tracing the history of the office of Attorney General and the origin and evolution of its powers and duties, stated the conclusion of the court to be, “from the review of decided cases and historical and other authorities, that the Attorney General of Pennsylvania is clothed with the powers and attributes which enveloped Attorneys General at common law, including the right to investigate criminal acts, to institute proceedings in the several counties of the Commonwealth, to sign indictments, to appear before the grand jury and submit testimony, to appear in court and to try criminal cases on the Commonwealth’s behalf, and, in any and all these activities to supersede and set aside the district attorney when in the Attorney General’s judgment such action may be necessary.”

In Dauphin County Grand Jury Investigation Proceedings (No. 1), 332 Pa. 289, 298, 2 A. 2d 783, 788, this Court, speaking through Mr. Chief Justice Kephart, said: “But the Attorney General, with his vast powers, recognized by this Court in Commonwealth ex rel. v. Margiotti, 325 Pa. 17, may supplement and supervise the grand jury in any investigation; he may, — and it is his duty to do so if he believes the government is to be hindered in the lawful conduct of its affairs to the detriment of the security, peace and good order of the State, — supersede .the District Attorney in the conduct of the entire investigation; or he may, if he believes better results will be obtained, act in conjunction with the District Attorney.”

In Dauphin County Grand Jury Investigation Proceedings (No. 3), 332 Pa. 358, 364, 365, 2 A. 2d 809, 812, 813, the question was considered whether there was any restriction whatever upon the power of the Attorney General to supersede the District Attorney of a county,- — whether “the extent of the discretion possessed by him” was “so illimitable as to be beyond the líale of judicial review.” The conclusion of the Court was that, “from the legal standpoint, such discretion may be abused, and, if so, its exercise cannot be sustained”; the Attorney General, being a quasi-judicial officer, must not act arbitrarily or from caprice but only “upon the foundation of reason”; his discretion must be “reasonably based upon the attendant pertinent circumstances from which its exercise arises.” And it was further held that “Whether the discretion vested in the Attorney General has been abused or has been exercised within proper legal limitations is necessarily a question for the determination of the court.”

Such being the established law, which, as all the counsel engaged herein agree, controls the present issue, what are the facts to which it is here to be applied ? Accepting only those not in dispute, it appears from the averments in the numerous pleadings filed, the exhibits thereto attached, and the testimony taken at the hearing in the court below, that, over the course of several years, employes of the City of Pittsburgh, with the connivance and even by the express direction of certain city officials, have been using for private purposes materials belonging to the city and labor paid for by the city. The first revelation of the existence of such illegal practices resulted from the happening of an accident to a truck in which a city employe, then working on city time and for city pay, was killed while being transported in a neighboring county for the purpose of working on a building there being constructed for a city official, and the truck was carrying a load of cement belonging to the city to be used on private property. This occurred on April 26, 1949, and the attendant facts and circumstances presumably became matters of public knowledge. However, no action was taken by anyone nor was any general interest apparently aroused until April 25, 1950, when the present Attorney General, then a private practitioner, instituted a suit against the corporation which owned the truck and against several individuals to recover damages for the employe’s death on behalf of his widow and children, and also filed a claim against the city for workmen’s compensation. A public agitation thereupon began for an official investigation of the probable extent to which city employes and officials had been criminally appropriating to their own use property of the , city and labor of its employes, in violation of their public trust. The local newspapers published vigorous articles and editorials demanding such a probe and calling on the District Attorney to act through the medium of a grand jury investigation; civic organizations made similar demands, and both they and the newspapers began vehemently to criticize the inaction of the District Attorney and to suggest'that the Attorney General’s office should take matters in hand. At first the District Attorney reputedly said, in substance, that he was not interested and that he did not think a grand jury investigation was necessary.¹ The City Solicitor, under obvious legal handicaps, made an investigation, and the City Controller likewise started one but discontinued it because he could not compel the attendance of witnesses and because in a councilmanic investigation which began on June 13, 1950, and lasted until June 22, 1950, evidence of misuse of city labor and materials was presented against himself. At the conclusion of their investigation Council filed a report on June 30, 1950, which merely recommended the dismissal of two city employes — not their criminal prosecution — and censured two city officials. It may parenthetically be noted that during the course of this councilmanic inquiry a city clerk committed suicide after stating to his wife that, at the direction of his official superior, he had falsified public records bearing on these matters.

On the same day of the filing of the councilmanic report the District Attorney presented a petition to the Court of Quarter Sessions praying for an order directing the then present grand jury to have witnesses summoned before it for the purpose of investigating “violations of law committed by the employes of the City of Pittsburgh with reference to the use of labor and materials of the City of Pittsburgh in fields of endeavor of a private nature.” This petition, notwithstanding the District Attorney’s insistence to the contrary, was patently defective and legally inadequate in view of the rulings of this Court² to the effect that, in order to warrant a grand jury investigation there must be averred, on direct knowledge or knowledge gained from trustworthy information, that a criminal act has been committed and that there are other similar acts which show a system of crime has been, or is, in the process of commission. However, the court granted the District Attorney’s petition and summoned the grand jury to report on July 10, 1950, for the purpose of the proposed investigation, and the District Attorney then assigned county detectives to assist in obtaining evidence and issued subpoenas for the appearance of witnesses.

On July 5,1950, the Attorney General was appointed to office, and on July 7, 1950, he served on the District Attorney an order, dated July 6, 1950, superseding him in connection with all matters relating to the criminal acts of any and all public officials and public employes within the jurisdiction of the court, “including the investigation of charges, the proceedings before the grand jury, the trial or trials, and any and all matters relating thereto.” On the same day, July 7, 1950, the Attorney General petitioned the court for revocation of its order of June 30, 1950, summoning the grand jury. To this petition the District Attorney filed an answer; the Attorney General filed a replication, the District Attorney a rejoinder, and the Attorney General a sur-rejoinder. The Court below held a hearing, took some testimony, and entered an order holding that the Attorney General had abused his discretion in superseding the District Attorney; the super-session was accordingly vacated, the Attorney General’s petition for the revocation of the order summoning the grand jury was dismissed, and the District Attorney was directed to proceed forthwith with the grand jury investigation. From this decision the Attorney General now appeals to this Court. It may be added that following the hearing in the court below but before the announcement of its decision the District Attorney filed an amended petition for the summoning of a grand jury in which he now stated that he had acquired definite knowledge from his own investigations and from testimony given at the councilmanic investígation that certain employes and elected officials of the City of Pittsburgh committed a series of unlawful acts and conspired to cheat and defraud the city; a summary of that testimony was set forth and averments made to meet the requirements of the decisions of this Court previously referred to.

Such being the facts, the question recurs: Was the Attorney General’s discretionary power to supersede the District Attorney lawfully exercised by him or did he abuse that discretion? How did the situation reasonably appear to him as justifying the action which he took? He saw that a grave situation existed in which revelations of criminality on the part of some city employes and officials indicated the possibility, if not the likelihood, of a widespread misuse of public property, and faithlessness in the performance of public duties. He saw that thereby the confidence of the citizenry in the integrity, at least of those in charge of the department of city government in which such criminality had been shown to exist, was being dangerously undermined. He saw that during the year ensuing after the accident of April 26, 1949, no investigation had been made by the agencies of law enforcement as to the reason for the presence at that time and place of the city employe who was the victim of the accident and as to the mission on which he was engaged. He saw that even after the institution of the suit at law and the filing of the claim for workmen’s compensation, when the newspapers and the public generally came to sense the seriousness of the situation, nothing was promptly done in the way of official investigation except by the City Solicitor, limited in her power, by the City Controller, similarly limited and with himself under attack, and by the City Council, a legislative body without power, of course, to enforce the criminal law. He saw that the continuing delay might result in the loss of evidence through departure or death of witnesses (one of whom, as already stated, did commit suicide) and even in the barring of prosecutions by the statute of limitations. He saw that it was not until June 30, 1950, after clamor by citizens and by the public press and after there were intimations that he himself might assume office and intervene, that the District Attorney filed a petition for a grand jury investigation. He saw that that petition referred only to city employes, not to city officials, and that it was legally defective. He saw that, while the District Attorney could not properly request a grand jury investigation until he had obtained reliable evidence of the commission of a general series of crimes, the District Attorney had not attempted on his own behalf to obtain such evidence until the councilmanic inquiry began and had then merely sent county detectives to check on the testimony there given. In view of all these circumstances, which the Attorney General presumably weighed and considered, can it be said that he abused his discretion — that he acted arbitrarily, capriciously, unreasonably- — in concluding that, in the public interest and for the public welfare, it was desirable, proper, and even incumbent upon him to supersede the District Attorney in the investigation which the grand jury was to conduct? The court below was of opinion that his action was unjustified because the District Attorney had already obtained — though on a vulnerable petition — the summoning of a grand jury and thereby the object of the agitation had been accomplished. But this indicates a misconception of the real question, which is whether the District Attorney’s past attitude in regard to the need for a grand jury investigation and his apparent failure to proceed with the alertness, the zeal, the vigor and the aggressiveness which the situation so obviously required, did not fairly support a reasoned belief on the part of the Attorney General that the prosecution of these vitally important inqnisitorial proceedings should be conducted by the chief law officer of the State, whose function it is to see that the criminal laws of the Commonwealth are enforced, having the advantage of the use of the State police for that purpose. Whether or not the Attorney General’s discretion was wisely exercised is not for us to determine; it is Ms discretion which governs, not that of the court; the court is concerned only with the question whether its exercise was within the limits of the Attorney General’s poioer and was not an abuse of that power. It is our conclusion that it did not constitute such an abuse. Nor is this conclusion based upon the argument of the Attorney General — which we reject — that the District Attorney should be superseded because he belongs to the same political party as that presently in control of the city administration. Such a contention runs counter to the whole theory and spirit of our governmental institutions for it would mistakenly imply that partisan loyalties and subservience to party organizations are commonly paramount to respect for, and devotion to, the supremacy of the law.

The proposition advanced on behalf of the District Attorney that supersedure of a local elected official by a State appointed officer is an infringement on the principle of home rule is wholly without merit. As already stated, the common law vests in the Attorney General that discretionary power. Moreover, the doctrine of home rule applies to the desirability of a municipality’s having freedom in the formulation of its own local legislation,- — ■ not to the enforcement of the criminal law of the Commonwealth.

A counter-attack has been made upon the Attorney General’s qualification to conduct the grand jury investigation in this case because of alleged personal interest in the matters to be investigated arising from the fact that he was counsel for the widow of the city employe killed in the accident and instituted on her behalf a suit to recover damages and also a claim against the city for workmen’s compensation. It is sufficient to say in this regard that not only did the Attorney General withdraw as counsel in that litigation and from all representation of his client at the time he served the order of supersedure but, in any event, there was no conflict of interest involved in the attempt of his client to obtain such redress and the prosecution of city employes and officials for crimes allegedly committed by them. The same is true in regard to the representation at the councilmanic hearing of the widow of the city clerk who committed suicide, especially as the technical relation of attorney and client apparently never came there into existence.

It would seem scarcely necessary to add to this opinion the admonition that, since the sole objective of the grand jury investigation is to ascertain whether the criminal law has been violated and to bring the guilty ones to justice, it should be kept free, as we are confident it will be,³ of personal rancors and, within its confines, of partisan exploitation.

The order of the court below is reversed. The super-session of the District Attorney by the Attorney General is hereby adjudged to have been a valid exercise of the Attorney General’s discretion. The record is remanded with direction to grant the petition of the Attorney General for the revocation of the order of the court below of June 30, 1950, reconvening the June grand jury.

1 In his rejoinder to this charge made in the Attorney General’s replication the District Attorney stated that “It is denied that after credible evidence was produced the District Attorney made any public statement to the effect that he was not interested in, and that he did not think a grand jury inquiry was necessary.1’

2 McNair’s Petition, 324 Pa. 48, 187 A. 498; Dauphin County Grand Jury Investigation Proceedings (No. 1), 332 Pa. 289, 2 A. 2d 783; Philadelphia County Grand Jury Investigation Case, 347 Pa. 316, 32 A. 2d 199.

3 In an oral statement made by the Attorney General in the court below on July 11, 1950, he said: “Tour Honors, I have already appointed W. Denning Stewart as a special prosecutor, a special deputy Attorney General. ... I intend to appoint other deputies to assist. In fact, I would like to appoint some Republicans and some Democrats as assistants to Mr. Stewart. I am now considering that question, and I intend to do that in order that the investigation would be a fair and impartial one.”