424 Pa. 508 | Pa. | 1967
Lead Opinion
Opinion by
M. Phillip Freed, a magistrate of the City of Philadelphia, appeals from the order of the Court of Common Pleas of Philadelphia County requiring him to comply with a subpoena issued by Arlen Specter, District Attorney of Philadelphia. The subpoena was issued by the district attorney in the course of an investigation by his office into whether Philadelphia magistrates were violating certain state statutes, including those imposing criminal sanctions for failure to make proper entries in the dockets of magistrate’s court.
Simply stated, the position of Magistrate Freed is that he is not required to comply with the subpoena served upon him, because the district attorney is not empowered to issue subpoenae to magistrates.
As the decided cases in this area suggest, the question of the effect of the adoption of the Philadelphia Home Rule Charter, related statutes and constitutional amendments on offices which, like that of district attorney, were not prior thereto associated with municipal government of Philadelphia, is fraught with difficulty and dissent.
Prior to 1850, investigation and prosecution of crime in Pennsylvania were exclusively the duty of the Attorney General, a Commonwealth official. In practice, that official discharged the duties imposed on him by the appointment of deputy attorneys general empowered to act as his agents within the several counties. Commonwealth ex rel. Minerd v. Margiotti, 325 Pa. 17, 188 Atl. 524 (1936). In 1850 the General Assembly enacted legislation transferring the duties performed by such appointed deputy attorneys general to an official elected by the voters of the county and designated “district attorney,” Act of May 3, 1850, P.L. 654, §1. Interestingly, the only description of the duties of district attorneys in that act was as follows: “the officer so elected shall sign all bills of indictment, and conduct in court all criminal or other prosecutions in the name of the commonwealth, or when the state is a party, which arise in the county for which he is elected, and perform all the duties which now by law are to be performed by deputy attorney generals. . . .”
It would seem clear from this language that the only significant change accomplished by the Act of 1850 was the alteration in the manner of selecting officers to enforce state criminal laAVS and to act as the state’s legal representative in each county. There can be no doubt, especially in light of the decisions of this Court that the Attorney General of the Commonwealth
Article XIY, §1 of the Constitution of 1874 designated district attorneys, along with several other officials, “county officers.”
On April 21, 1949 the General Assembly, adopted the First Class City Home Rule Act. Act of April 21, 1949, P.L. 665, 53 P.S. §§13101-13116, 13131, 13133. Germane to the instant question was the following language of §17 (53 P.S. 13131) of the act: “the city . . . shall have and may exercise all powers and authority of local self-government and shall have complete powers of legislation and administration m relation to its municipal functions, including the power and authority to prescribe the elective city officers, who shall be nominated and elected only in the manner provided by, and in accordance with, the provisions of
It is clear from an examination of the quoted language that the changes authorized by the First Class City Home Rule Act were restricted to matters affecting local and municipal government. Nowhere is there any intimation that changes in the performance of state functions, which as we have seen the district attorney performs, were authorized. Indeed, nowhere in the First Class City Home Rule Act is there even a reference to the power of the city to affect “county officers” as the district attorney was designated in Article XIY, §1 of the Constitution. Therefore, as far as this legislation is concerned, the General Assembly in no way disturbed pre-existing laws regarding the nature of district attorneys’ functions and duties or the powers of local government with regard to them.
On November 6, 1951, Article XIV of the Constitution was amended by the addition of §8. That section pertinently provided as follows: “(1) In Philadelphia all county offices are hereby abolished, and the city shall henceforth perform all functions of county gov
The language of Article XIV, §8, for instance, indicates nothing touching the powers, duties and functions of the district attorney. The phrases abolishing county offices and stating the “city shall henceforth perform all functions of county government” certainly do not have this effect. For, while the district attorney may have been a “county officer” by virtue of Article XIV, §1, in the sense that he was elected on a county basis, and while his “office” qua “county office” may
Further support for the conclusion that the designation of an official as a “county officer” in Article XIV, §1 of the Constitution does not, by virtue of Article XIV, §8 make him subject to the Charter in all respects, is provided by the decision of our Court in Lennox v. Clark, 372 Pa. 355, 93 A. 2d 834 (1953). There we held that despite the designation of the prothonotary and register of wills as “county officers” in Article XIV, §1, the adoption of Article XIV, §8 did not convert them into city officers for purposes of making their employees subject to the civil service provisions of the Charter. While this conclusion was based on a reason somewhat distinguishable from the instant case,8
The conclusion that the district attorney is essentially a state officer whose powers, duties and functions are not affected by the Charter is confirmed by many additional observations. To begin with, it
Finally, it should be noted that lack of the subpoena powers here sought will not in any meaningful sense
Order reversed.
Act of June 15, 1937, P. L. 1743, §§14, 43, as amended, Act of May 9, 1949, P. L. 1028, §14, 42 P.S. §§1114, 1144. Compare Act of June 3, 1919, P. L. 369, §1, as amended, Act of April 29, 1925, P. L. 352, §1, 16 P.S. §7741.
Specific powers to subpoena witnesses and evidence in connection with investigations of private detectives are conferred upon district attorneys by the Act of August 21, 1953, P. L. 1273, §5, 22 P.S. §15.
“Every officer, department, board or commission authorized to hold hearings or conduct investigations shall have power to compel the attendance of witnesses and the production of documents and other evidence and for that purpose it may issue subpoenas requiring the attendance of persons and the production of documents and cause them to be served in any part of the City. If any witness shall refuse to testify as to any fact within his knowledge or to produce any documents within his possession or under his control, the facts relating to such refusal shall forthwith be reported to any one of the Courts of Common Pleas of Philadelphia County and all questions arising upon such refusal and also upon any new evidence not included in the report, which new evidence may be offered either in behalf of or against such witness, shall as promptly as possible be heard by such court. If the court shall determine that the testimony or document required of such witness is legally competent and ought to be given or produced by him, the court may make an order commanding such witness to testify or to produce documents or do both and if the witness shall thereafter refuse so to testify or so to produce documents in disobedience of such order of the court, the court may deal with the witness as in other cases.”
Carroza v. Philadelphia, 371 Pa. 255, 89 A. 2d 496 (1952) (6 join in majority opinion; 1 dissenting opinion) ; Lennox v. Clark, 372 Pa. 355, 93 A. 2d 834 (1953) (4 join in majority opinion; 2 separate concurring and dissenting opinions filed) ; Commonwealth ex rel. Truscott v. Philadelphia, 380 Pa. 367, 111 A. 2d 136 (1955) (3 join in majority opinion; 1 concurs; 3 dissent) ; Schultz v. Philadelphia, 385 Pa. 79, 122 A. 2d 279 (1956) (3 join in majority opinion; 1 concurs in result; 2 file separate dissenting opinions).
Commonwealth ex rel. Miners v. Margiotti, 325 Pa. 17, 188 Atl. 524 (1936) ; Margiotti Appeal, 365 Pa. 330, 75 A. 2d 465 (1950).
“County officers shall consist of sheriffs, coroners, prothonotaries, registers of wills, recorders of deeds, commissioners, treasurers, surveyors, auditors or controllers, clerks of the courts, district attorneys, and such others as may from time to time be established by law; and no sheriff or treasurer shall be eligible for the term next succeeding the one for which he may be elected.”
This language was amended on November 6, 1945 to delete the words “sheriff or” in the last clause.
in Lennox v. Clark, 372 Pa. 355, 93 A. 2d 834 (1953) this Court held that by reason of Article XIV, §8 of the Constitution, the Board of Revision of Taxes along with certain officials designated as “county officers” in Article XIV, §1 of the Constitution were within the Charter to the extent that employees of their offices were subject to the civil service requirements of the Charter. The employees of the district attorney’s office were not considered in Lennom, although the Court assumed arguendo that employees of the District Attorney were subject to Charter civil service in Schultz v. Philadelphia, 385 Pa. 79, 122 A. 2d 279 (1956). Of course, in Schultz we were not squarely presented with the issue as to whether employees of the District Attorney were subject to the Charter and that case did not deeide the issue. In the present ease, we do not mean to or need to intimate a view as to whether employees of the District Attorney’s office are subject to the civil service provisions of the Charter, since that issue is completely distinct from the question as to whether the Charter affects the duties and functions of the district attorney.
See Commonwealth v. Reis Enterprises, Inc., 31 Pa. D. & C. 2d 402, 407 (C.P. Philadelphia County, 1963) which in discussing the effect of the Charter after Lennom and Truscott states: “It is clear, therefore, that only an act of the General Assembly may alter or modify the duties and functions of the district attorney.
Lennox decided that the employees of the prothonotaries and registers of wiUs should not be subject to the civil service provisions of the Charter because the specific mention of these two officers in Article V, §§7 and 22 of the Constitution indicated that they and their employees were to be under the control of the judiciary.
Oases cited supra note 5.
This accounts for most of the officials, besides the district attorney, designated as “county officers” in Article XIV, §1 of the Constitution.
Compare §3-600 of the Charter fixing ■ the compensation of officers thereunder.
Nor will lack of subpoena power reduce his abiUty to discharge his duty of enforcing the general criminal statutes of the Commonwealth.
Concurrence Opinion
Concurring Opinion by
I concur with the majority’s decision that the District Attorney of Philadelphia does not possess the power to issue subpoenas. However, unlike the majority opinion, I reach my conclusion without finding it necessary to determine that the district attorney is excluded from the Philadelphia Home Rule Charter. Nor do I decide that he is included in the Home Rule Charter. I deem it inappropriate for this Court to make a determination on an issue of such far-reaching consequences when we have not had the benefit of briefs and argument solely devoted to that matter. This is especially so in light of the fact that, without exception, in every case wherein the issue involved the powers of the office of district attorney, the City Solicitor of Philadelphia represented the district attorney’s office in court. This would indicate that in the past no question was raised as to the propriety of regarding the
The Act of June 3, 1919, P.L. 369, §1, 16 P.S. §7741 empowers a district attorney to appoint county detectives to investigate and report to him the conduct in office of the magistrates. That act cannot be cited as authority for lodging in the district attorney the power to issue subpoenas in the course of his conduct of an investigation. For one thing, the statute vests in the county detectives the power to investigate the magistrates and limits the authority of the district attorney to that of an appointing power. Moreover, even if the Act of 1919 be construed to authorize the district attorney to conduct investigations of the magistrates, I would require an express authorization to him to issue subpoenas to aid in such investigations. No one piece of legal paper carries with it the abusive potential to subject innocent persons to adverse and detrimental publicity than a subpoena. This Court should not grant the subpoena power to a public officer to whom such power has not been expressly granted by legislation. In Commonwealth ex rel. Margiotti v. Orsini, 368 Pa. 259, 263 81 A. 2d 891, 893 (1951) we stated that: “. . . neither an attorney general, nor a district attorney whom he supersedes, has any common law power of
“The law is well settled that the power of subpoena which formerly was exclusively a judicial power, may now be granted to nonjudicial bodies, commissions, agencies or officials by statute, but the power and the extent of the power is to be determined in each case by the express statutory grant.” (Emphasis in the original.) That case held that §520 of The Administrative Code which expressly grants to every administrative department the power to issue subpoenas in furtherance of hearings, does not extend to investigations of alleged violations of the law. Likewise, we should now hold that where a statute authorizing an officer to conduct investigations does not expressly include the power to issue subpoenas, such power is nonexistent in the office.
Even if the district attorney is considered subject to the Home Rule Charter, §8-409 must be construed to provide for subpoena power pertaining only to the investigation of the conduct of city government and matters relevant thereto. Because the Home Rule Charter is the root of city government in Philadelphia and because of the potential abuses inherent in the power to issue subpoenas, this limitation on §8-409 is necessary and wise. Since Article V, §§1 and 12 of the Pennsylvania constitution makes magistrates constitutional judicial officers and under Lennox v. Clark, 372 Pa. 355, 93 A. 2d 834 (1953), judicial officers are not subject to the Home Rule Charter, the magistrates are not officers of city government and are not subject to subpoena by any city officer under §8-409. Accordingly, I join the judgment of reversal, but only on the basis stated.
Indeed, the brief filed by the district attorney, the brief filed on behalf of amicus curiae, Crime Commission of Philadelphia, and the brief filed on behalf of amici curiae, Greater Philadelphia Movement and Chamber of Commerce of Greater Philadelphia, all seek to vest in the district attorney the subpoena power by virtue of his being a city officer subject to the Philadelphia Home Rule Charter.
Concurrence Opinion
Concurring Opinion by
A district attorney does not have any common law power of subpoena, nor has such ever been specifically
I, therefore, concur in the result reached in the opinion of Mr. Justice Roberts.
Concurrence in Part
Concurring and Dissenting Opinion by
Let it be said at once that the decision in this case has nothing to do with the question being argued in the public square as to whether a district attorney must, under the law, resign his office in order to be a candidate for the office of Mayor of Philadelphia. That question is as foreign to the issue in this litigation as the proposed trip to the moon is foreign to the contemplated deep-sea-diving expedition in the Atlantic to raise the ill-fated Andrea Doria.
The proposition as to whether a district attorney in office may be a candidate for mayor is referred to here only because the principle of judicial notice compels us to mention it. Public statements by high ranking officials in government, observations by public commentators, and a widespread discussion of the subject in all the communication media oblige us to take cognizance of what is common knowledge. This is neces
To attempt to use the decision of this Court as a judicial pronouncement on a matter which is in no way before us is like trying to grow pears on an apple tree. The apple hanging on the tree of decision in this case has to do with the proposition as to whether the District Attorney of Philadelphia may, according to law, in discharging the functions of his office, subpoena to his office such persons he deems amenable to interrogation. That is the issue, that is the apple, and no amount of argumentation or interpretation can transform that apple into a pear. No mixing of seeds, no amount of botanical treatment or alimentation can grow a coconut on a banana tree, and no type of analysis, construction, exposition or diagnosis can read into this decision what is absolutely not there.
The District Attorney’s brief proclaims the issues in the case at bar as follows:
“I. Does the District Attorney of Philadelphia have subpoena power under Section 8-409 of the Philadelphia Home Rule Charter?”
“II. Did the District Attorney of Philadelphia have the power under the Philadelphia Home Rule Charter to institute the action in the Court below?”
But to subpoena persons to the district attorney’s office, under penalty of jail, for refusing to obey the subpoena, is a policeman in a different uniform. Unlimited subpoena jurisdiction would arm the district attorney with a weapon of harassment and oppression which could destroy the right of privacy which is the constitutional prerogative of every American. Such subpoena powers smack of the search and seizure practices of the tyrannical government of George III, which our Revolutionary War forefathers wiped out with their blood on the field of battle. And, it was to prevent any future violation of the right of the people to be secure in their homes, that the United States enacted Amendment IV of the Federal Constitution, and Pennsylvania enacted §8, Article I of our own State Constitution.
In spite of these constitutional sentinels guarding the rights of liberty of our citizens, the district attorney seeks the authority to drag people to his office willy
The subpoena is perhaps the most potent edict issuing out of peaceful civil government, next to conscription. In effect, the subpoena is temporary conscription. Of course the subpoena is indispensable in the orderly administration of justice, but, because of its arbitrariness, it is to be exercised only under the supervision and control of the courts, the subpoenaed person being protected by the law at every step of the proceedings. Thus, when a witness is subpoenaed to testify before a grand jury, he appears before a body of sworn arbiters and he enjoys protection because of the very multiplicity of the auditors; when he testifies in court, he does so in an open courtroom under the watchful and protective eye of a judge. But if he is brought before a district attorney, he stands before an accusatory officer, is subjected to an ex parte proceeding, and can call on no one to protect him. Fairness rebels, justice condemns, and our whole legal system, which frowns on ex parte proceedings, denounces such an infringement of the inalienable rights of privacy and liberty.
What the district attorney is arguing for, in effect, is that we allow him to make himself a one-man grand jury. Obviously, this is constitutionally impossible.
The district attorney, in arguing before us, said that no one could be injured by his wielding of subpoenas
As I have already indicated, the district attorney may conduct investigations. The Act of June 3, 1919, P.L. 369, §1, as amended, 16 P.S. §7741, describes the duties of county detectives to “investigate and make report to the district attorney as to the conduct in office of magistrates, constables, deputy constables, and other officers connected with the administration of criminal justice; to make such investigation and endeavor to obtain such evidence as may be required by the district attorney in any criminal case; and perform such other duties as the district attorney may direct.”
In spite of the fact that this Act specifically refers to the investigation of magistrates, and specifically declares, that the district attorney may require detec
The Majority Opinion speaks of the district attorney as a “county officer.” That is what he was. He is no longer a county officer. As Chief Justice Bell points out in his Dissenting opinion: “This Constitutional amendment [Adopted November 6,1951] in the clearest language specifically provided that all county officers shall become officers of the City of Philadelphia.” (Emphasis in original.)
The Chief Justice said further: “Moreover, under the provisions of the Home Buie Charter and the Constitutional Amendment of 1951, this County District Attorney became a City officer who is elected and paid by the citizens of Philadelphia.” (Emphasis in original.)
Article XIV of the Constitution, amended by addition of §8, on November 6, 1951, states: “Upon adoption of this amendment all county officers shall become officers of the city of Philadelphia, and, until the General Assembly shall otherwise provide, shall continue to perform their duties and be elected, appointed, compensated and organized in such manner as may be provided by the provisions of this Constitution and the laws of the Commonwealth in effect at the time this amendment becomes effective.”
It will be noted that, although the county officers become city officers, their duties are to continue as they were “at the time this amendment becomes effective.” And, of course, no one at all contends that the district attorney ever had common law or constitutional subpoena powers. The district attorney himself, in arguing his case before this Court, insisted that under the Philadelphia Home Buie Charter he possessed the sub
It is commonplace history that the district attorney’s office is an offshoot of the office of Attorney General of the Commonwealth. Prior to 1850, the Attorney General was the chief prosecuting officer of the Commonwealth. He was represented in the various counties by deputies. In 1850, the office of District Attorney was created and that officer was charged with the performance of the duties theretofore discharged by the deputies attorney general. The Attorney General may, in certain situations, supersede the district attorney and act in his stead. The Attorney General admittedly has no subpoena powers. If the Attorney General has no subpoena powers, certainly the district attorney, who may be displaced by the Attorney General, would have no greater powers than his superior. The second mate of a ship cannot exercise an authority denied the captain himself.
During the oral argument before this Court, I put to the attorneys for the appellee the following proposition. Suppose the district attorney in the exercise of the powers of his office concluded that he wished
It was said, in attempted mitigation of this frightening claim of dictatorship power, that a district attorney would not abuse his authority. But we know only too well that power feeds upon power. This is a government of laws and not of men, and the way to prevent abuse of power is not to hand out the key to the Tower of London. The sure way to prevent the sway of the sceptre is not to hammer out a sceptre. Dictatorship in a district attorney’s office is just as taboo as it is in national office.
The defendant in this ease, M. Phillip Freed, is a magistrate in the City of Philadelphia. On March 10, 1966, the District Attorney of Philadelphia typed out, or had someone type for him, on his letterhead a few words in which appeared the expression: “You are commanded to appear at Room 666, City Hall, on Friday, March 18, 1966, at 10:00 a.m., and to bring with you certain papers. ..”
The district attorney entitled this paper: district attorney’s subpoena duces tecum, and it was delivered to Magistrate Freed, who refused to be intimidated by this “command” performance. He said that the district attorney had no authority to command him to proceed to Room 666, which is the location of the district attorney’s office, not a courtroom. The district attorney then petitioned the court of common pleas to issue an order “commanding compliance with the District Attorney’s Subpoena Duces Tecum.”
The magistracy of Philadelphia is part of the judicial system of Pennsylvania. The Pennsylvania Constitution, Art. Y, §1, provides: “The judicial power of this Commonwealth shall be vested in a Supreme Court, in courts of common pleas, courts of oyer and terminer and general jail delivery, courts of quarter sessions of the peace, orphans’ courts, magistrates’ courts, and in such courts as the General Assembly may from time to time establish.” (Emphasis supplied)
In McNair’s Petition, 324 Pa. 48, this Court said: “The office of magistrate in this Commonwealth has always been recognized as a judicial office. . . Within the sphere of their powers they have all the attributes of legally constituted courts of justice and are independent of any other tribunal except insofar as their action is reviewable on appeal.”
If the district attorney would have the power to subpoena magistrates into his office, he would also have the power to compel a judge of the court of common pleas to appear before him and answer for his decisions, producing, at the district attorney’s behest, his (the judge’s) records, documents, opinions, decisions, etc., all of which is absurd. Indeed, carrying this proposition to its logical ultimate conclusion, the
It is enough merely to state these propositions to reveal the ludicrous extent of the authority sought here by the district attorney. In the joyous ringing of the Liberty Bell on that immortal July 4th of 1776, •the peal which sounded most melodious and was most comforting and assuring to the embattled colonists, now Americans,. was that of the Independence of the ■ Judiciary. What the district attorney asks for here would crack the Liberty Bell into a wider chasm than ' the wound it presently suffers.
If the district attorney possessed the power he claims in. this case, he would be in a position to generate chaos in the whole judicial system. Sitting comfortably in his office, he could write out subpoenas by the hundreds and employ drays, trucks and other vehicles to haul all the judicial records of the county to his office. He could thus destroy the courtrooms and the entire machinery of justice more effectually than an enemy could do so by dropping a bomb on William Penn’s hat.
But the situation presented in this case is even worse .than I have already outlined up to this point. The ■ function of a district attorney is to investigate and •prosecute crime-. He may not, .for personal reasons, or out of whim or caprice, subject innocent persons to surveillance, interrogation or temporary deprivation , of freedom. After all, a subpoena is just that, a fetter on a man’s liberty of movement. A subpoena com- . mands that its recipient drop all other activities and . commitments and proceed to a certain place at a certain time to give answers to certain questions put to him. •And he is not relieved of that responsibility, he is not - liberated from that mobile imprisonment, until he has answered the questions and has produced what has been demanded of him.'
At the hearing before Judge Sdoane of the court of common pleas, Attorney Finkelstein, representing Magistrate Freed, said that his client “has nothing to hide in this case.” The district attorney affirmed this statement: “I certainly do not contradict in any way Mr. Finkelstein’s statement that Magistrate Freed has nothing to hide. There has never been any contention by the district attorney’s office of any impropriety of any nature whatsoever by Magistrate Freed.” (Emphasis supplied.)
We see here that the district attorney acknowledges, not only that Magistrate Freed is not charged with any crime, but that he is not even accused of any impropriety of any nature whatsoever!
This is about as clean a shirt as a man can wear. “No impropriety of any nature whatsoever.” And yet, in spite of that immaculate laundry worn by Magistrate Freed, in the words of the district attorney himself, the district attorney demands that Magistrate Freed leave his office, his home, his family, his duties, his companions and proceed to the office of the district attorney and stand accused, in the eyes of the public, of some kind of wrongdoing. Is this just? Is this law? I don’t think so.
Since the district attorney does not need a subpoena in this case, because he admits that Magistrate Freed is clean of any impropriety, or charge of impropriety, the only possible conclusion is that the
Even the lower court, which strangely believes that the district attorney should have the blunderbuss, admits that Magistrate Freed has done nothing wrong. The Hearing Judge said in his opinion: “I am quick to say, an investigation there is, but no present charge of wrong is made against Magistrate Freed either by what I say or in what Mr. Speeter requests.”
Yet, in spite of this exoneration of any wrongdoing on the part of Magistrate Freed, in spite of this absence of even a charge of wrongdoing, the Hearing Judge decided that the district attorney was entitled to issue a subpoena duces tecum. How did he arrive at this conclusion? He arrived at it with a syllogistic non sequitur which must take its place among the classic non sequiturs in the chronicles of sophistry. The Hearing Judge said: 1. “He [the district attorney] may investigate the conduct of magistrates. 2. He may investigate to obtain evidence in any criminal case.” After laying down these categorical premises, the Hearing Judge sweeps into his syllogistic conclusion with the statement: “It follows then that the district attorney has the statutory power of subpoena.”
Granting the district attorney the powers he seeks in this case would be to give to a district attorney, any district attorney, a scalpel and saw with which he could sever away the most fundamental right of American citizenship, the right to be let alone to pursue one’s way in accordance with law and justice. This Court could not possibly grant the district attorney this startling demand.
The District Attorney of Philadelphia, formerly a county officer, is now a city officer under the Philadelphia Charter, and as such city officer, he has no subpoena powers.
He submitted a third question, namely, “Is the District Attorney by exercising his subpoena power attempting to supervise a judicial officer?” He answered this in the negative.
Dissenting Opinion
Dissenting Opinion by
In this case, the majority have tunneled under the Himalayan mountains of the Pennsylvania Constitution in order to achieve their desired and what they believe is a worthy and wise goal. The Constitution
The Constitution of Pennsylvania of 1874 provided in Article XIV: “Section 1. County officers shall consist of sheriffs, coroners, prothonotaries, registers of wills, recorders of deeds, commissioners, treasurers, surveyors, auditors or controllers, clerks of the courts, district attorneys
In Commonwealth ex rel. Minerd v. Margiotti, 325 Pa. 17, 188 Atl. 524, the Court said (page 29) : “Prior to 1850 it was the custom of the Attorney General, exclusively by virtue of his common law powers and duties, to prosecute all criminal cases, and for him to appoint deputy Attorneys General in the various counties to represent him in their prosecutions. Thus, in Com. v. English, 11 Phila. 439, it was stated by Judge Pratt that: ‘Prior to the act of 1850, creating the office of district attorney, the pleas of the commonwealth were all conducted by the attorney general or his deputies, whom he was authorized by law to appoint, but whose duties have never been fully defined by the legislature. Presumably then, they were the same in the district in which he acted as were those of his principal, the attorney general himself.’
“The Act of May 3, 1850, P.L. 654, 16 P.S. sec. 3431, created the elective office of district attorney, which was unknown at the common law, and among other things provided: ‘The officer so elected shall sign all bills of indictment, and conduct in court all
On April 21, 1949, the Legislature of Pennsylvania enacted the First Class City Home Rule Act.
Pursuant to the aforesaid enabling Act, the people of Philadelphia adopted on April 17, 1951, a Home Rule Charter, effective January 7, 1952. In the meantime, the people of Pennsylvania adopted on November 6, 1951-—effective immediately upon its adoption—an amendment to Article XIY of the Constitution, by adding thereto §8, which pertinently provides: “§8. City and county of Philadelphia; consolidation of governmental functions; county officers abolished (1) In Philadelphia all county offices are hereby abolished, and the city shall henceforth perform all functions of county government within its area through officers selected in such manner as may be provided by law. . . .
This Constitutional amendment in the clearest language specifically provided that all county officers shall become officers of the City of Philadelphia.
With respect to the County officers who came within the Charter, the Court, in Lennox v. Clark, 372 Pa. 355, 93 A. 2d 834, pertinently said of the Consolidation Amendment (page 366), (1) : “Its real and designed result was that, when the former county officers became city officers and the former county employes city employes, they automatically became subject thereby to the laws then in effect governing and regulating city officers and employes, and also, of course, to any such laws as might thereafter become effective;” and (2) that the Consolidation Amendment was self-executing and therefore without the necessity of any further action, legislative or otherwise, had transformed certain County officials into City officials as of November 6, 1951 when the Amendment was adopted. However, the questions and issues in this case and in Carrow v. Philadelphia, 371 Pa. 255, 89 A. 2d 496, upon which the majority impliedly rely, did not include any question or issue or any decision concerning the status or powers of the District Attorney of Philadelphia.
Furthermore, with respect to certain County officials who also performed certain duties for the Commonwealth, the Court said (page 369) : “Some point
Appellant specifically, and the majority impliedly, rely upon Lennox v. Clark as holding that the District Attorney of Philadelphia is not a County or City officer but a Commonwealth officer, in spite of the clear language of the Constitution that he is a County officer, and by the new §8 of Article XIV of the Constitution, a City officer. The reliance of the majority and of the appellant upon Lennox v. Clark for this proposition cannot be justified or sustained. Prior decisions of this Court concerning the offices therein involved and the reasons upon which those cases were based are clearly inapplicable to the office of District Attorney. Lennox v. Clark held that the Prothonotary of Philadelphia is a judicial officer because of the fact that under Article Y, §7, of the Constitution, he is (a) appointed by the Judges of the Court and (b) subject to removal by a majority of said Judges, and (c) may appoint only such assistants as may be authorized by said Courts.
In Lennox v. Clark the Court further said (page 372) : “The same considerations thus applicable to the office of the Prothonotary apply with equal, if not greater, force to that of the Register of Wills, since it has been held that he is a judge and that his probate of wills constitutes a judicial act: Sebik’s Estate, 300 Pa. 45, 47, 150 A. 101, 102; West, Admrx., v. Young,
“He too is the subject of a specific provision in the Constitution. Article V, Section 22, provides that ‘In any county in which a separate orphans’ court shall be established, the register of wills shall be clerk of such court and subject to its directions, in all matters pertaining to his office; he may appoint assistant clerks, but only with the consent and approval of said court.’ Accordingly it is our opinion that the office of the Register of Wills was not converted by the City-County Consolidation Amendment into a city office and therefore has not become subject to the provisions of the Charter.”
This Court so held in spite of the fact that the Register of Wills in Philadelphia acts as Agent of ■the Commonwealth of Pennsylvania for the collection of inheritance taxes. No municipal or county functions are performed by the Register of Wills in any of said offices. This Court held (we repeat) that the Philadelphia Register of Wills is a judicial officer and his office was not converted by the City-County Consolidation Amendment into a City office and did not become subject to the provisions of the Charter.
It is well established that where ambiguity or conflict exists between a specific constitutional provision
However, none of the aforesaid provisions of the Constitution, nor any other constitutional provision, nor any relevant authority or sound and applicable reasoning, applies to a District Attorney, because the District Attorney is mentioned only once in the Constitution and in that one instance he is stated to be, as hereinabove set forth, a County officer.
Furthermore, it is clear as crystal that the essential and the principal and the most important powers, functions, duties and limitations of (a District Attorney, and especially of) a District Attorney of Philadelphia, are primarily and principally those of a County officer dealing with crimes and prosecuting criminals who commit one or more crimes in Philadelphia. Moreover, under the provisions of the Home Rule Charter and the Constitutional Amendment of 1951, this County District Attorney became a City officer who is elected and paid by the citizens of Philadelphia.
The District Attorney of Philadelphia is authorized to conduct investigations and issue subpoenas requiring the attendance of magistrates and the production of their records.
The right and power and duty of a District Attorney of Philadelphia not only to conduct investigations of alleged illegalities and suspected crimes and criminals has been universally recognized and sustained by this Court, but also and more relevantly his right, power and duty to investigate the conduct in office of magistrates has been ordained by statutes. For example, §1 of the Act of June 3, 1919, P.L. 369, 16 P.S. §7741, provides for the appointment of County detectives
Moreover, §1 of the Act of June 29, 1923, P.L. 973, 16 P.S. §7708, provides for the expenses of District Attorneys in every County “in the investigation of crime.”
The Power to Subpoena
In Com. ex rel. Margiotti v. Orsini, 368 Pa., supra, the Court said (page 263) : “The law is well settled that the power of subpoena which formerly was exclusively a judicial power, may now be granted to non-judicial bodies, commissions, agencies or officials hy statute, hut the power and the extent of the power is to he determined in each case hy the express statutory grant. . . .” (Emphasis in original)
Section 8-409 of the Philadelphia Home Rule Charter, upon which the District Attorney of Philadelphia relies to justify his right and power of subpoena, provides: “Every officer, department, board or commission authorized to hold hearings or conduct investigations shall have power to compel the attendance of witnesses and the production of documents and other evidence and for that purpose it may issue subpoenas requiring the attendance of persons and the production of documents and cause them to be served in any part of the City.” A District Attorney is certainly an "officer” within the language and meaning of §8-409, and one of his important and traditional duties is to conduct investigations concerning possible crimes and sus
To summarize: It is therefore clear that the District Attorney of Philadelphia has the authority and the power to investigate the suspected illegal actions of magistrates in Philadelphia, and in pursuance thereof, and under and by virtue of the Philadelphia Home Rule Charter, has the authority and power to issue subpoenas duces tecum.
Appellant further contends that this proceeding is fatally defective because the District Attorney personally appeared before the Court of Common Pleas and before this Court, instead of being represented by the City Solicitor. Appellant points out that under §4-400 of the Philadelphia Home Rule Charter, the City Solicitor is authorized and directed to represent the City and every City officer in all litigation.
It is a matter of common knowledge that the District Attorney or his assistants, and not the City Solicitor (or his assistants), tries every criminal case in the trial Courts, and, in the event of appeal, argues such cases in the appellate Courts. It is clear beyond the peradventure of a doubt that the literal construction of the powers of a City Solicitor, which is advocated by the appellant in this case, is so contrary to the universal practice which exists in Philadélphia (and indeed throughout the State) and is so unreasonable as to be completely devoid of merit.
For each and all of these reasons I dissent, and would affirm the Order of the lower Court.
Italics throughout, ours.
P. L. 665, 53 P.S. §13101 et seq.
Emphasis in original.
—or a specific provision of a statute.
We note parenthetically that this power is not absolute and unfettered; its illegal use or its misuse or abuse can bé restrained or limited by a Court. In their annotation concerning this section of the Home Rule Charter, the draftsmen give as its source §8 of Article XVI of the Act of June 25, 1919, P. L. 581, 53 P.S. §12528,, wherein the power of subpoena was given to Philadelphia City Council. The origin of the Act of 1919 is §1 of Article XV of the Act of June 1, 1885, P. L. 37, which conferred on councils of cities of the first-class the right to issue subpoenas. Furthermore and more pertinently, the power of the District Attorney of Philadelphia—one of whose important duties has been traditionally the duty of investigating possible crimes and their possible perpetrators—to issue a subpoena duces tecum has been recognized and approved in Cathcart v. Crumlish, C.P. 6, September Term 1961, No. 3411, and In Re Petition of Wilbur Hamilton, June Term 1961, and in a formal Opinion No. 261 dated November 13, 1961 by City Solicitor David Berger.
A subpoenaed witness is not subject to an improper or unjustified or illegal subpoena. Section 8-409 further provides: “If any witness shall refuse to testify as to any fact within his knowledge or to produce any documents within his possession or under his control, the facts relating to such refusal shall forthwith be reported to any one of the Courts of Common Pleas of Philadelphia County and all questions arising upon such refusal and also upon any new evidence not included in the report, which new evidence may be offered either in behalf of or against such witness, shall as promptly as possible be heard by such court. If the court
In this case, we note parenthetically that the City Solicitor stated at oral argument that he had no objection to the District Attorney appearing in person to argue the case.
