Philadelphia County Grand Jury Investigation Case

32 A.2d 199, 347 Pa. 316, 1943 Pa. LEXIS 444

• Court: Supreme Court of Pennsylvania
• Decided: April 22, 1943
• Docket: 105, Misc. Docket 8
• Status: Published

Opinions

Opinion, by

Mr. Justice Linn,

This is an application for a writ of prohibition to restrain an investigation by the grand jury. The petitioners are the members of the Registration Commission, created pursuant to the Act of March 30,1937, P. L. 115, known as “The First Class City Permanent Registration Act,” amended July 31, 1941, P. L. 710, 25 PS section 623. As the Act provides for a bi-partisan commission, three commissioners belong to one political party and two to the other. All the members, without respect to party, joined in the petition and appeared by counsel. When the petition was presented, a rule was granted on Judge Oliver., as the presiding Judge in the Quarter Sessions of Philadelphia for April Term, 1943; on John H. Maurer, District Attorney; and on Henry M. Raab, foreman of the grand jury, to show cause why the prayer of the petition should not be granted. In response to the rule, answers were filed by the Judge, by the District Attorney, and by Harry K. Butcher, who had delivered to Judge Oliver a memorial which had induced the action petitioners seek to restrain.

The Term of the Quarter Sessions began on Monday, April 6, 1943. It appears that several days before that date, Harry K. Butcher delivered to Judge Oliver a memorial concerning the administration of the Permanent Registration Act by the Commission. At the opening of the Term on April 6th, Judge Oliver charged the grand jury generally. At the conclusion of the general charge, he dealt with the memorial, and, in the course of his charge, said: “The members of the Registration Commission of the City of Philadelphia are charged with having wilfully neglected or refused to perform their duty as such members, as defined by the First Class City Permanent Registration Act of March 30, 1937, P. L. 115, which states that any commissioner Avho so fails or refuses to perform his duties shall be guilty of a misdemeanor. If all or any of the members of the Registration Commission haAre wilfully neglected or refused to perform his or their duties as such members, such neglect or refusal is unlawful and criminal.”

On April 7th, he again instructed the grand jury and stated that on the day before, he had been mistaken in quoting sections of the statute as originally approved instead of quoting from the amended Act. He then also said, inter alia, “In justice to the Registration Commission I want to say this to you, that their job is, of course a difficult job, and that it Avould be utterly impossible for them to have their records in one hundred percent condition. That is because the city is naturally a very live unit of people and that they are constantly moving, constantly dying, coming into the city and going out of the city and moving from one location to another. So you must not look for or expect perfection. The essence of the charge before you is that the failures have been so great as to lead to a reasonable conclusion that they are wilful. Now, that is the test, whether these records are in such condition as to indicate to you a wilful neglect or failure or refusal to perform the duties imposed upon the Commission.” He impounded the Commission’s records in 67 election divisions.

The power of the Quarter Sessions, on a proper showing, to direct a grand jury to investigate violation by the commissioners of the registration law, is not questioned; the single question on this review is whether a proper case appears for the investigation ordered.

It has long been the rule in the Quarter» Sessions of this county, that the exercise of the power to direct or to refuse to direct such investigation rests in the judicial discretion of the court. In The Matter of the Memorial of the Citizens’ Association, 8 Phila. 478 (1870), in dealing with a memorial, much more detailed and specific than that now before us, the subject was considered at length by two very able judges, President Judge Allison and Judge Paxson. In declining to order the investigation, they declared this general principle: “The exercise of this power rests in the sound discretion of the Court; and when adequate legal remedies exist by statute, by ordinance, or by indictment at common law, the Court will not generally move until these remedies, or some of them, have been invoked.” In the course of the opinion, they said: “. . . this power, which is a most delicate one, is never exercised unless under urgent necessity or when, from the peculiar circumstances of the case, the public interest would suffer from the delays incident to ordinary forms of law,” Similar language is used by President Judge Rice in Commonwealth v. Klein, 40 Pa. Superior Ct. 352, at p. 357. A few years ago in McNair’s Petition, 324 Pa. 48, 61, 187 A. 498, 504 (1937), this court, in a unanimous judgment, laid down the rule that “A grand jury’s investigation cannot be a blanket inquiry to bring to light supposed grievances or wrongs for the purpose of criticizing an officer or a department of government, nor may it be instituted without direct knowledge or knowledge gained from trustworthy information that criminal conspiracy, systematic violations of the law or other criminal acts of a widespread nature prevail, and at least one or more cognate offenses should exist on which to base a general investigation.”

A majority of the members of this court agree that the record shows that the challenged action of the learned judge was a manifest abuse of discretion and that the petitioners are entitled to the relief prayed for.

1. In reviewing the exercise of discretion complained of, it is significant that after counsel for the memorialist had outlined the subject to the court below the District Attorney, a competent and experienced public officer, stated: “Prom the allegations that have been made here, if there are any acts at all, they are not acts of criminality, but at most they could only be regarded as acts of oversight, or as acts of negligence.” He concluded by saying, “I have an open mind on this subject, but to be quite frank with Your Honor, I do not see that this is the subject of a Grand Jury investigation.” 1

2. We next must note a fact of more significance; it appears in the answer of the learned judge. We infer from it that the learned judge had misapprehended the memorial and that his action was influenced by that misapprehension. The petitioning Commissioners were appointed on August 1, 1941, although Mrs. McNeil had served under a prior appointment since June, 1939. Pour of the petitioners had, however, not been members before. In his answer, made in support of the order complained of, the learned judge said “That the'said memorial contained detailed allegations of neglect of duty on the part of the Registration Commissioners after irregularities had been called to their attention, and an allegation that the failure and neglect of the Commissioners have extended over a period of three or four years.” It seems clear to us that commissioners who took office August 1, 1941, much less than two years before the memorial was filed, cannot possibly be charged with wilful default for the conduct of Commissioners not in office.

3. In examining the memorial, it is necessary to bear in mind that the Act makes it a misdemeanor for any commissioner upon whom a duty is laid by the Act, wilfully to neglect or refuse to perform his duty. The fourth paragraph seems to be a summary of the memorial: “4. On the basis of the examinations and investigations which your petitioner has made, he does aver upon information and belief that said Registration Commissioners have been and are in default in the performance of their statutory duties, and that it is necessary and desirable that a public body forthwith make a full and complete investigation in order that it may be duly ascertained whether crimes have been committed, to the end, that if they have, appropriate action may be taken in respect thereto.” Quite obviously, such a general statement that the memorialist has been informed and believes that the Commissioners “. . . have been and are in default in the performance of their statutory duties” is not sufficient to justify á grand jury investigation when challenged as it is here. As the legislature has provided that wilful neglect or refusal to perform the statutory duties shall constitute a misdemeanor, not every default constitutes a crime; a default may result from mere negligence or from circumstances beyond the control of the Commissioners or it may be wholly accidental. In the administration of a permanent registration system on the large scale contemplated by the Registration Act, mistakes are bound to occur. The legislature recognized that fact in making a distinction between such noncriminal defaults and the conduct for which it provided punishment by specifying that to constitute a misdemeanor the default must be wilful.

The learned judge also recognized this but failed to give it effect; on the second day of the Term Avhen he brought the grand jury back, he stated to them that “In justice to the Registration Commission, I want to say this to you, that their job is, of course a difficult job, and that it would be utterly impossible for them to have their records in one hundred percent condition.” As showing the magnitude of the official undertaking, we note that at the end of 1942 there were 1,326 election divisions in the county and 1,039,438 registered voters. Over 1,000,-000 registration affidavits alone, not to mention voter’s certificates, were on file. These Commissioners took office August 1,1941, with the duty of being ready for the primary election to be held within six weeks (September 9,1941) and the general election about two months later. The record also shows that the number of votes recorded in the four elections held in 1941 and 1942 were “September 9, 1941 — 272,000; November 4, 1941 — 628,000; May 19, 1942 — 350,000; November 3, 1942 — 635,000.”

The memorial makes no direct charge that the Commissioners were guilty of wilful default with respect to any specified circumstance, a defect which the memorialist recognizes in paragraph 4, quoted above, by saying that it is “desirable” to have an “investigation in order that it may be duly ascertained Avhether crimes have been committed. . . .” It refers to the section of the Act making wilful default a misdemeanor and we can only con- elude, and we think the learned Judge should have concluded, that wilful default was not charged because the memorialist had no evidence to support the accusation.

The memorial 2 refers to three general classes of duty: (1) of comparing the voters’ signatures on registration affidavits with those on the voting certificates; (2) of purging the lists by eliminating the names of persons no longer qualified to vote; (3) of dealing with voters claiming assistance. These duties are prescribed with considerable detail in more or less complicated provisions of the statute. We shall refer to them briefly. After an election the voters’ certificates must be returned to the Commission and thereafter constitute one of its records. Some idea of the number of documents that must be dealt with may be obtained by keeping in mind the number of votes cast at the elections stated above. The voter’s signature must be compared with that appearing on his or her registration certificate. The memorial suggests that such comparison was not made and, to support the suggestion, states that the blocks of voters’ certificates were taped and that the tape had not been removed. At the argument a sample block was produced; the adhesive tape appeared to be slightly more than an inch wide and passed from the bottom to the top of the block at one end and could be detached and reap plied at will. This demonstration was not challenged by the respondents and would indicate that the circumstantial evidence of suggested default was insignificant. Reference was made to fraudulent voting in some districts as a result of forged certificates, but it appeared that, with evidence furnished by the Commission, the District Attorney had procured indictments against those charged, and, in the cases that had been tried, had obtained pleas of guilty or convictions.

Provision is made for the purging of the lists. The memorial averred that in certain divisions votes had been cast in the name of persons who had moved from the district. It is the duty of voters moving from one place to another in the city, and of public service companies, of real estate brokers and of others, to give notice of removals to the Commission to aid in purging the lists: 25 PS section 623, as amended. Obviously, unless the Commission was given notice of the removals in question, the commissioners were not in default; it is not suggested that the Commission had been notified of the removals prior to the election at which the votes were cast. Section 31 (a) of the Act of March 30,1937, P. L. 115, provides (25 PS section 623-31) that the “registrar of vital statistics of every registration district, . . . shall report, in writing, at least weekly, to the registration commission, the deaths of residents of the city except residents less than twenty years of age. Said written report shall contain the full name of the decedent, his residence address, the date of his birth, if available, and the date of his death. The commission shall forthwith cancel the registration of each registered elector so reported.” There is no averment that the commissioners have wilfully neglected to cancel the registration of every voter so reported to them. 3 With respect to the purging of the lists, an interesting fact was stated to the court at the argument. The memorial averred that between the May and November elections in 1942, a door-to-door canvass had disclosed that about 14% of the registrants checked had either moved or died since registering ; the total given for the divisions in question was 2,552 names. While the statute does not require the Commissioners to make a door-to-door canvass, we were informed that in February, 1943, as part of the purging of the lists, the Commissioners began an optional mail check of registration which, at the time of the argument, had not been completed; the results of the action of the Commission, as shown by its records, was that instead of striking off 2,552 names, the number suggested by the memorial, the commission in fact was striking 3,662 names. This fact, developed after the grand jury was charged, was of course not known to the court below, but it is a record fact which, not having been challenged, we must consider.

Coming now to the third complaint, “The failure to check Assistance Affidavits,” it is to be noted that the statute provides: “When the commission shall ascertain that any elector who has declared his need for assistance is no longer illiterate, or no longer suffers from the disability stated by him, it shall cancel on his registration affidavit the entry relating to illiteracy or physical disability which authorized him to have assistance, and shall forthwith notify such elector by mail of this action.” Section 21 of the Act of July 31,1941, P. L. 710, amending section 30 of the Act of March 30,1937, P. L. 115, 25 PS section 623-30 (f). The suggestion of wilful default in the performance of the duty with respect to assistance affidavits is subject to the same complaint made with respect to the others. There is no averment that the Commission failed to cancel the authority to have assistance after the fact that a voter no longer needed it had been ascertained. We were informed at the argument that more than 5,000 such cancellations had been made during 1942.

Judicial discretion requires action in conformity with law upon the facts and circumstances before the court after hearing and due consideration. In Osborn v. U. S. Bank, 9 Wheat. 738, 866, Chief Justice Marshall said: “Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the Court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law.” See, also, Dauphin Co. Grand Jury Proceeding, 332 Pa. 358, 364, et seq., Maloney v. Stahlnecker, 341 Pa. 517, 19 A. 2d 162. The memorial presented no case within the rule quoted earlier in this opinion from McNair’s Petition, 324 Pa. 48, 187 A. 498, and the other two cases quoted. We agree that the learned judge acted in perfect good faith, but we think he was mistaken.

The prayer of the petitioners is granted, and it is directed that a writ of prohibition issue; we assume that it will be unnecessary to serve the writ.

1 At that time the District Attorney had not seen the memorial; he based his remarks on what counsel for the memorialist stated to the court prior to the charge to the grand jury. In his answer, the District Attorney states that when the court below impounded the records of the commission he assigned two of his assistants “to act for him and to aid and assist the grand jury in accordance with the directions of the court.”

2 In the brief filed on behalf of the memorialist it is said that “The defaults charged . . . fall into three classifications. First, the failure of the Registration Commissioners to compare the signatures supposed to have been made by voters at certain elections with their signatures in the district binders, thereby failing to unearth and report to the proper authorities, that which was afterwards ascertained, that in certain specified divisions a substantial number of fraudulent votes had been cast. Second, the failure to keep the lists of voters purged of the names of persons who had removed from the division, or died, or were otherwise not qualified to vote. Third, the failure to check assistance affidavits, thereby making it possible for certain voters not entitled to assistance to receive it, and vice versa.”

3 The Annual Report for 1942, in the record, states that 8,484 deceased persons were stricken from the registration records in that year.