232 Pa. 36 | Pa. | 1911
Lead Opinion
Opinion by
■ The objection to the act of March 2, 1911, is that it extends for the period of one year the terms of all judges whose commissions expire on the first Monday of January in odd-numbered years. In Com. v. Sheatz, 228 Pa. 301, referring to a term fixed by the constitution, we said, “The term of office fixed by the constitution is expressly limited to a definite number of years, and it is not within the power of the legislature, directly or indirectly, to extend it beyond the prescribed period. . . . There is an implied prohibition against the right of the legislature to add to the term where the constitution has expressly prescribed the duration of the tenure. ... It is not within the power of the legislature to ... . extend the term of the office and prevent a vacancy. . . . Holding over .... is not a new or another term but a prolongation of the elected incumbent’s term. . . .” Article 5, sec. 15, of the constitution provides that all common pleas judges shall hold their offices for the period of ten years. The schedule adopted by the people to put into effect the amendments of 1909 declares: “All judges for the courts of the several judicial districts .... holding office at the date of the approval of these amendments .... whose term of office may end in the year 1911, shall continue to hold their offices until the first Monday of January, 1912.” This schedule is a temporary part of the constitution. “It is only when the constitution fails to deal with a subject that the general assembly may legislate upon it:” Com. v. Sheatz, supra. Here, the constitution has dealt with the subject in hand so far as the judiciary is concerned, and the act of 1911 attempts to add provisions to the schedule upon the very matter covered therein. It may be that the draftsman of the schedule thought that he had provided against every ^contingency, but the words used cannot be construed to mean, that from 1911 on ad
The suggestion that the difficulty can be solved by holding that the judges whose terms expire in odd-numbered years shall have successors elected at the municipal election which will occur fourteen months before the expiration of their respective terms, is likewise open to constitutional objections. Article V, sec. 26, of the constitution provides that, “All laws relating to Courts shall be general and of uniform operation.” Classification must not only rest upon a plain distinction in the subjects classified, but it must always have a substantial reason back of it amount
After looking at the matter from every standpoint, ,we are brought to the conclusion that the view of the court below is the correct one, and that the question must be answered in the affirmative. Article IY, sec. 8, of the constitution as amended in 1909, provides, “He (the Governor) .... shall have power to fill any vacancy that may happen .... in a judicial office .... But .... a person shall be chosen to said office on the next election day appropriate to such office. ...” The constitution expressly gives to the people the right to choose judges by election, and it gives to the chief executive the right to fill vacancies. This latter right exists whether the vacancy occurs during a term for which an incumbent has been elected or at the expiration thereof, if there is no one to fill the office. The non-election of a successor, whether it be through a neglect of the people or a failure of the law to afford a proper opportunity, creates a vacancy. “The
The argument that the solution arrived at will postpone the popular choice is of no avail against constitutional provisions adopted by the people themselves: Walsh v. Com., supra; Etter v. McAfee, supra; nor is the objection that it will make some of the judges appointive and others elective sound in law, for limited interval appointments to elective offices have always been part of our system, and none of these appointments will be for more than one year. The solution works no permanent division in the ranks of the judges, as the situation when thus dealt with is but a temporary one which will cease to exist after the expiration of the term of the last of the present incumbents
The people may have supposed that the schedule of 1909 comprehended all possible contingencies and made all necessary provisions to carry the constitutional changes into effect without disturbing their right to elect immediate successors to the judges then in office. But the difficulty is, if such was their intention, they failed to say it, or so to express themselves that the legislature, without violence to other fixed constitutional mandates, could carry out their wishes in that respect. In construing any part of the constitution we are not at liberty to disregard other applicable provisions, or to supply words omitted, in order to work out a thought which the people themselves had the opportunity to give expression to had they so desired, nor can we ignore the authority of our own prior decisions. We must take the law as we find it, and we are constrained to hold that the relator’s term cannot be extended by act of assembly; further, that his successor cannot be lawfully elected in the year 1911. To permit either would disregard constitutional inhibitions and read that into the organic law which cannot be found therein; while to follow the rule laid down by the learned court below, is to conform to the constitution as it is written and as it has been heretofore construed by this court. It neither takes from nor adds to the constitution, but simply accepts a remedy there supplied in plain and, under our decisions, unambiguous, language.
The assignment of error is overruled and the judgment of the court below is affirmed.
Dissenting Opinion
dissenting:
The term of office of the relator as a judge of a court of common pleas will expire on the first Monday of January, 1913. His successor in office cannot be elected in 1912. The question raised by this appeal is whether he should
The learned judges of the common pleas in dismissing the petition for a writ of mandamus held that the act of 1874 is unrepealed and unmodified by the amendment of 1909 and that its provision fixing the commencement of judges’ terms “on the first Monday of January next succeeding their election” prevents an election in 1911; that the schedule to the amendments of 1909 did not by implication extend judicial terms; that the act of March 2, 1911, was an attempt to extend the terms of judges beyond the limits fixed by the constitution and is therefore invalid. Their conclusion was that an election cannot, under the amendment, be held in 1911, and that on the first Monday of January, 1913, a vacancy will exist which must be filled by the governor. This conclusion is accepted as correct by the majority of my brethren, but I cannot agree with them.
The situation with which we have to deal may be the result of an oversight; but this is by no means clear, for the words of the amendment have but one meaning, and the people deliberately adopted it. The constitution provides that all judges of the courts of common pleas shall be elected for a term of ten years, but nothing in the amendment changes this by the remotest implication. Judges are still to be elected for a term of ten years, and the amendment merely provides that all of them must be elected in odd-numbered years. This means that the election for judges shall hereafter be biennial. The framer of the amendment of 1909, knew that if it should be adopted it would go into effect immediately upon its adoption, and, therefore, there could be no election of judges in 1910, and vacancies would exist in some districts
But if we assume there was an oversight in limiting the extension of terms to those that would end in 1911 and in not applying it to all terms that would end in odd-numbered years, it does not follow that there will be a vacancy. If an adequate provision exists for the election of a successor in each case whose term will commence with the expiration of the term of his predecessor, there will be no vacancy. This provision is found by reading together, as we should, the amendment and the act of 1874. The amendment requires an election in an odd-numbered year, the act provides that the term of office shall commence on the first Monday of January next succeeding the election. When judges could be elected at any annual election, the appropriate time to elect was in November of the year immediately preceding the end of their terms. Now that they are to be elected biennially only, and in odd-numbered years, the appropriate time to elect is in November of the odd-numbered year, nearest the end of their terms. This will give effect to both the constitutional and statutory provisions and to the declared purpose of the people that judges shall be elected by them and that appointments to the office of judge shall be limited to the filling of vacancies happening by death, resignation or otherwise during the term for which a judge was elected. The act of 1874 must yield to the
That there are practical objections to the election of a judge fourteen months before the beginning of his term of office is of course to be conceded, but the people have so willed, and it is not for courts to set their will aside. Their intent, as expressed in the amendment, is free from all ambiguity, and I can see no justification for the substitution by implication of a different intent, not suggested by a word in the amendment. Unwise legislation is bad enough, but worse than it is its attempted correction by the courts. One is wrong in practice; the other is radically wrong in principle. It is not for courts to say what the law should be but what it is and to leave its correction to those on whom that duty devolves.