| Pa. | Oct 6, 1884
delivered the opinion of the court,
The fifth section of the fifth article of the Constitution provides, that “whenever a county shall contain forty thousand inhabitants, it shall constitute a separate judicial district, and shall elect one judge learned in the law.” In Commonwealth ex rel. Chase v. Harding, 6 Norris, 343, it was decided that this provision, when a county attains that number of inhabitants, does not of itself constitute it a separate district; but simply indicates a certain basis upon which, at the proper time and in the proper manner, judicial districts may be declared by the legislature. This was the precise question settled in that case; that it was correctly decided we have no doubt, although we may not follow all that was there said in apparent support of the principle determined, as authority on the question here involved. The fact that a county contains forty thousand inhabitants determines its constitutional right to be made a separate district; but that fact must somehow be authoritatively ascertained in order that the right may be exercised, and under our system the means of ascertainment must, in some form, be provided by the General Assembly ; to decide otherwise would, as stated by the learned Chief Justice who delivered the opinion, lead to inextricable confusion and ruinous consequences.
The erection of new counties, and the designation of judicial, senatorial and legislative districts are, and always have been, regarded as proper matters of legislation, and, subject only to the expressed limitations imposed by the constitution, the legislature has undoubted power in the premises. By the seventh section of the third article of the constitution, no new county can be erected by local or special law. The only general law on the subject is the Act of 17th April, 1878, entitled “ an Act to provide for the division of counties of this Common
The new county of Lackawanna was erected under the provisions of this Act of 1878 ; the judicial district, in which its territory was formerly embraced, “remained unchanged,” and the Judges of the courts of Luzerne county were, under the provisions of the Act, the Judges of the courts of Lackawanna county also ; there was, therefore, no new district created, no vacancy to be filled, and Bently’s appointment conferred no official authority. Thus Lackawanna county, although alleged to contain more than 40,000 inhabitants, was, by the statute, made part of the eleventh district, with like effect, as when the new county of Montour was made part of the eighth district in 1850, or the new county of Lawrence part of the seventeenth district in 1849.
- In ex rel. Chase v. Harding,'supra, we held that this provision of the Act of 1878, as a temporary expedient, was a constitutional exercise of legislative power, but we did not decide that this was the only remedy which the General Assembly might provide. General laws may yet be passed providing for the erection of new counties from parts of several counties, and in such cases, the provisions of the Act of 1878 would be altogether inappropriate.
By the amendatory general Act of 11th June, 1879, however, the legislature provided that whenever a new county, erected under the provisions of the Act of 1878, and its supplements, shall be proclaimed as a separate judicial district, the qualified electors thereof shall, at the next general election which shall occur more than three months after the date of the proclamation, in the form prescribed by law, elect one person, learned in the law, to be Judge of such district; who shall be commissioned by the Governor, and have all the powers, rights, emoluments and privileges of other Judges of the several counties of the Commonwealth. Under the provisions of fhis Act, Judge Hand was elected at the general election of 1879, was duly commissioned and qualified, and has been, and still is, exercising the functions of the judicial office. His title to that office depends upon the validity of the Act of June 11, 1879; if the legislature had power in 1879 to provide that new counties thus erected should constitute separate judicial districts, the title of Judge Hand is indisputable, and the claim of the relator to the same office may be disregarded.
“ The General Assembly shall, at the next succeeding session after each decennial census, and not oftener, designate the several judicial districts, as required by this Constitution.
This section belongs properly to the body of the Constitution; it is not, in any proper sense, a schedule provision; it was not.intended merely to bridge the space between the old and the new systems ; it is an inqmrtant member of the system itself. Its design is to provide for a designation of the several judicial districts throughout the Commonwealth at regular or periodic intervals of ten years, and to prohibit any further or other designation within these decennial periods. The arrangement of judicial districts, thus provided for, is a conclusive one; it cannot be afterwards disturbed or interfered with during the period for which it is declared. But this decennial designation is made with reference to the political divisions of the State as they exist at the time; the erection of a new comity is an event exceptional and somewhat extraordinary in its nature; as it creates new relations it develops new duties, and raises new obligations. The power of the legislature, under certain conditions, to create new counties at any time is not taken away by the Constitution of 1874. The legal effect of the erection of a new county is to withdraw the territory comprising it from the judicial district to which it previously belonged; in the absence of any legislative provision, the new county is neither a separate district, nor a part of any district; and, as we cannot conceive of the existence of a county without a court, it follows that a contemporaneous provision of some sort, for the establishment of courts of justice, is an essential part of the Act creating a new county. Upon this subject, however, the Constitution is silent. It is, of course, not implied that the new county shall remain in the judicial district within which its territory was formerly embraced, as it may be constituted from portions of several districts, and it is nowhere provided that it shall be joined to a contiguous district. The erection of a new county involves a condition, respecting its courts, not expressly provided for, and this seeming repugnancy must, we think, be resolved through the general powers conferred upon the legislature.
We have not before us a question as to the effect of an Act of Assembly dividing a single judicial district into two judicial districts, within the decennial period ; the case at bar involves simply the judicial status of a new municipal division, which the legislature had undoubted power to create, and which, being lawfully established, must somehow be provided for.
If the Act of 1878, and the amendment of 11th June, 1879, are not in conflict with the 14th section of the schedule of the Constitution, it is conceded that the title of Judge Hand to the office of Judge of the Courts of Lackawanna County, is indisputable, and that no vacancy existed in that office to be filled at the election in 1888. The ballots cast for Ira H. Burns at the general election of 1883 were, therefore, without warrant or authority of law, and we can discover no useful purpose to be subserved in obliging the Judges of the Court of Common Pleas of Lackawanna County to compute them. We are, therefore, of opinion that the rule should be discharged.
And now, October 6, 1884, the rule to show cause why a writ of.mandamus should not be awarded to John Handley, President Judge, and Aleked Hand, Additional Law Judge of the 45th Judicial District, as prayed for, is discharged at the cost of the relator, and the writ of mandamus is refused.