Daly v. Hemphill, Appellant. Reese v. Hemphill, Appellant.
Supreme Court of Pennsylvania
June 4, 1963
reargument refused July 1, 1963
263
I am unable to agree with the majority‘s conclusion that the record here established that the decedent-father made a valid gift inter vivos to his sons of the controlling shares of stock in the family-owned corporation. The majority relies on the testimony of the son that “his father was in personal financial difficulty and in order to place seventy-five shares of the stock of the corporation then registered in his name beyond the execution process, he transferred the registration of the ownership thereof to the witness; . . .”*
It is undisputed that the purpose of transfer was “to place seventy-five shares of the stock of the corporation . . . beyond the execution process.” Donative intent was not the motivation for the transfer, and without “An intention to make the gift then and there.” (Brightbill v. Boeshore, 385 Pa. 69, 74, 122 A. 2d 38 (1956)) there can be no valid gift. There is nothing in the record which could conceivably support the gift approved by the majority. In the absence of a gift, the stock remained the property of decedent and passed under the terms of his will to his widow.
I would, therefore, reverse the decision of the court en banc.
Edward G. Bauer, Jr., City Solicitor, with him Herbert B. Newberg and Ellis A. Horwitz, Assistant City Solicitors, and Levy Anderson, First Deputy City Solicitor, for appellants.
Herbert S. Levin, for appellant, intervening defendant.
Edward R. Becker, with him Edwin E. Naythons, Stanley M. Greenberg and William A. Meehan, for appellees.
OPINION BY MR. JUSTICE ROBERTS, June 4, 1963:
Appellee, John F. Daly, was appointed Chief Magistrate of the City of Philadelphia by the Governor on
For at least twenty-five years prior to this proceeding (and perhaps for ten years longer), there had been no challenge to the authority of a Chief Magistrate to appoint and dismiss employees such as are here involved. In 1937, the Board of Magistrates directed by rule that: “The Chief Magistrate shall appoint all persons necessary and as are provided for by law.” On January 11, 1963, however, by resolution, the Board of Magistrates, for the first time, created a personnel committee to assume the power of appointment and discharge of employees and provided specifically: “No certification of the payroll shall be effective without the joinder of the Chief Clerk, the Chief Magistrate and the Secretary of the Board of Magistrates; provided, however, that if the Chief Clerk or the Chief Magistrate or both of them shall be unable or unwilling to approve . . . without such cause as shall appear to a majority of the members of the Board of Magistrates in their sole discretion to be good cause then and in that event, the Secretary [apparently selected by a majority of the Board] shall approve the payroll and his signature alone shall be sufficient. . . .” On
A complaint in equity was filed by appellee Daly to enjoin appellants from interfering with the performance of his duties as Chief Magistrate. Simultaneously, the two employees appointed by him instituted actions in mandamus against appellants. Subsequently, the thirteen dismissed employees were granted permission to intervene. These actions were consolidated below and will be considered here as one appeal. The City filed preliminary objections in the nature of a demurrer. Counsel agreed that since only questions of law were involved, the disposition of these objections would be a final appealable order and that the filing of exceptions would be waived. The court below dismissed the preliminary objections, enjoined appellants from interfering with the actions of the Chief Magistrate, and ordered them to pay the salaries of appellees Reese and Dougherty.
Prior to determining whether or not there is authority in the Chief Magistrate to appoint and remove employees, it is necessary to resolve a contention raised by appellant-intervenor Black (one of the dismissed employees) that Section 32 of the Magistrates’ Court Act of 1937,3 which provides that “. . . the Governor shall select from among the [elected] magistrates a chief magistrate . . . ,”4 is an unconstitutional infringe-
Should the Governor choose to remove a Chief Magistrate, the latter no longer serves in the capacity of Chief Magistrate, but he does retain his judicial position undisturbed until the expiration of his elected term. In Humphrey, however, had the dismissal been effective, the commissioner would have been removed from the FTC prior to the completition of his statutory term of office. Further, the duties of the Chief Magistrate, beyond those performed as magistrate, are purely administrative and executive responsibilities dealing with the non-judicial functions of the magistrates’ courts, and are not part of the judicial power. The assignment of magistrates to Traffic Court6 and to divisional police courts7 must be in accordance with a ro-
It is also contended that it is unconstitutional for the Legislature to confer any appointive powers upon the Chief Magistrate. In Lennox v. Clark, supra, strongly relied upon to support this position, the office of Prothonotary of the Courts of Common Pleas of Philadelphia was held to be an integral part of the judicial power but only by virtue of specific constitutional provision.11 The Board of Magistrates is not a
In seeking to attribute to the Magistrates’ Court Act constitutional infirmity on the ground of legislative and executive interference with judicial independence, appellant-intervenor misapplies the mandate of separation of powers to the delegation and performance of executive and administrative duties which are not part of the judicial process of magistrates’ courts. Such delegation neither restrains nor interferes with judicial power. The power of appointment is intrinsically and historically an executive function. See, e.g., Municipality of St. Thomas & St. John v. Gordon, 78 F. Supp. 440 (D. V. I. 1948); Tucker v. State, 218 Ind. 614, 35 N.E. 2d 270 (1941); Taylor v. Commonwealth, 26 Ky. 401, 3 J. J. Marshall (1830); In re Opinion of the Justices, 303 Mass. 615, 21 N.E. 2d 551 (1939); State ex rel. Johnson v. Myers, 74 N.D. 678, 19 N.W. 2d 745 (1945).
In this and in other cases in which a statute has been constitutionally attacked, all our courts have been governed by the rule that “we can declare an Act of Assembly void, only when it violates the Constitution clearly, palpably, plainly; and in such manner as to leave no doubt or hesitation on our minds.” Sharpless v. Mayor of Philadelphia, 21 Pa. 147, 164 (1853). (Emphasis in the original.) This rule has been variously stated. In several cases this Court has adopted the rule laid down in the Sharpless case, supra. This lan-
In other cases the Court has stated the test to be “clearly and plainly” or “clearly and palpably,” Allentown School District Mercantile Tax Case, 370 Pa. 161, 166, 87 A. 2d 480 (1952); Clark v. Meade, 377 Pa. 150, 171, 104 A. 2d 465 (1954); Cali v. Philadelphia, 406 Pa. 290, 296, 177 A. 2d 824 (1962); Bargain City U.S.A., Inc. v. Dilworth, 407 Pa. 129, 137, 179 A. 2d 439 (1962); or merely “clear“, Loomis v. Phila. School District Board of Education, 376 Pa. 428, 431, 103 A. 2d 769 (1954). Moreover, in other cases we have expressed the test to be “clearly, palpably and plainly” or “clear, palpable and plain.” Mikell v. Phila. School District, 359 Pa. 113, 117, 58 A. 2d 339 (1948); Loushay Appeal, 370 Pa. 453, 456, 88 A. 2d 793 (1952); Evans v. West Norriton Twp. Municipal Authority, 370 Pa. 150, 158, 87 A. 2d 474 (1952).
While each test is substantially the same, we are convinced that a uniform test should now and hereafter be used and that this test can most soundly and wisely be stated thus: “An Act of Assembly will not be declared unconstitutional unless it clearly, palpably and plainly violates the Constitution.”
The constitutional challenges levied by appellant-intervenor do not satisfy this test and must fail.
Appellants argue that the Board of Magistrates, rather than the Chief Magistrate, is vested with the power to appoint and dismiss the employees in question. The Magistrates’ Court Act of 192712 first estab-
Major portions of the 1927 Act were replaced by the Magistrates’ Court Act of 1937.19 In Section 31 of the Act of 1937, the pertinent parts of which are set forth in the margin,20 the Board of Magistrates is authorized
Section 31 of the Act of 1937 also designates the Chief Magistrate as “administrative representative and executive head” of the Board, whereas in the earlier Act he was merely “administrative head“. Surely, the change in language and the addition of “representative and executive” has substantive meaning and goes beyond mere style. These words may not be ignored. They impose additional executive responsibilities upon the Chief Magistrate. To hold otherwise would be to disregard the language and intention of the Legislature, and this may not be done. The Legislature cannot be deemed to intend that its language be superfluous and without import. Commonwealth v. Mack Bros. Motor Car Co., 359 Pa. 636, 59 A. 2d 923 (1948). Every word, sentence or provision in a statute must be given effect in construction of the statute.
” . . . . [I]n modern commercial use, an ‘Executive’ is a reasonably well understood term to designate one . . . who directs the work of others, has authority to hire and discharge, promote, or change the status of, such others . . . .” 33 C.J.S., Executive 847-48 (1942). Regulations promulgated pursuant to the Federal Fair Labor Standards Act of 1938, as amended,
29 U.S.C. § 201 et seq. , define “executive” as one “(c) who has the authority to hire or fire other employees . . . .”29 C.F.R. § 541.1 (1949) . As previously observed, within the constitutional separation of governmental powers into executive, legislative and judicial, the power of appointment is intrinsically and historically an executive function.20a Thus, it is clear that the Legislature intended to vest and did vest the appointive power in the Chief Magistrate.21 Only in this way can he effectively supervise personnel and thereby carry out his administrative and executive duties.
Section 36 of the Act of 193722 authorized him to “provide for the appointment of” stenographers or stenographic clerks. Appellants urge that this language does not grant the Chief Magistrate the author-
Appellants also argue that the Chief Magistrate is without authority to appoint or remove employees of the Philadelphia Traffic Court. At the establishment of the Traffic Court in 1957,24 the Legislature was fully aware that for over twenty years all employees of the classes here involved were appointed and dismissed by the Chief Magistrate. It is significant that the Legislature made no other provision for the appointment of personnel required in that court. Had the Legislature intended otherwise, it would have so indicated. Therefore, it is apparent that, contrary to the assertions of appellants, the Chief Magistrate has the power to appoint and replace employees of the Traffic Court.
Finally, appellants contend that the Board possesses the inherent power of courts and that from such power the Board derives authority to appoint or discharge employees of the magistrates’ courts. However, as previously observed,25 the Board is not a judicial tribunal and lacks the inherent powers of courts. In addition, this contention presupposes that no provision has been made in the Magistrates’ Court Act for such appointments. The concept of inherent power carries with it the implication that its use is for situations not covered by legislation. See Leahey v. Farrell, supra. Having determined that the Legislature has made provision for such appointments, we must conclude that there can be no reliance on inherent power in this instance.
Decrees affirmed. Costs to be paid by appellants.
Mr. Justice MUSMANNO dissents.
DISSENTING OPINION BY MR. JUSTICE COHEN:
Article V, § 1 of the Pennsylvania Constitution provides: “1. Judicial power. 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 other courts as the General Assembly may from time to time establish.” Thus the magistrates’ courts are designated as courts in which the judicial power of this Commonwealth is vested.
Article V, § 12 of the Pennsylvania Constitution further contains constitutional directives pertaining to the magistrates’ courts in Philadelphia, and further emphasizes the constitutional scheme of including the magistrates’ courts in the judicial system. McNair‘s Petition, 324 Pa. 48, 187 Atl. 498 (1936), reaffirms the recognition in this Commonwealth of the office of magistrate as a judicial office.
The corrupt and maladministration of the offices of magistrate which existed prior to 1937 and the investigations which disclosed the improper activities on
The designation of a chief justice of our Court, the president judge of the various courts of common pleas, the president judge of the orphans’ courts, presiding judge of the county courts, are all accomplished either in conformance with a mandate of the Constitution or by a procedure which leaves them free from the intrusion of either the executive or legislative branch of our government.
I would determine this litigation by striking down the appointment of the chief magistrate by the governor of our Commonwealth as an unconstitutional intrusion.
Directing my attention to the opinion of the majority, this appeal raises two questions: (1) whether the Magistrates’ Court Act of 1937, as amended, confers the general power to appoint employees upon the board of magistrates or upon the chief magistrate; and (2) if the general power of appointment resides in the board of magistrates, whether the legislature in sections 36 and 38 of the Act has specifically granted to the chief magistrate the power to appoint stenographers and stenographic clerks. I would hold that the power of appointment resides in the board of magistrates except where, as in sections 36 and 38 of the Act, the legislature has specifically provided otherwise.
A reading of the Magistrates’ Court Act of 1937 makes it clear that the board of magistrates and not the chief magistrate possesses general executive and rule-making powers. It is the board which has the
The majority relies on the denomination of the chief magistrate as the “administrative representative and executive head of said board.” Its extended and strained discussion of the term “executive” ignores the important fact that the chief magistrate is only the executive head of the board of magistrates — similar to the executive head of a corporate board of directors — and not the executive head of the whole magistrates’ system. As executive head of the board, his powers, except where otherwise specifically provided in the Act, are those conferred upon him by the board of magistrates. In this connection, it is quite significant that the legislature has specifically granted to the chief magistrate the power to appoint a chief clerk and a deputy stenographic clerk. If, as the majority contends, the chief magistrate had general power to make appointments, these specific grants of power would be totally unnecessary.
The majority also makes the argument that the legislature, aware of the prior practice under the Magistrates’ Court Act of 1937, incorporated this practice sub silentio into the Traffic Court Act of 1957. Without commenting on the validity of this type of argument, I would merely point out that the prior practice whereby the chief magistrate made appointments was based not upon an assertion by the chief magistrate of such power under the 1937 Act, but rather was based on a delegation of power to him from the board of
Of course, the legislature in the Magistrates’ Court Act has specifically granted certain powers to the chief magistrate as well as to the individual magistrates. I agree with the majority‘s interpretation of sections 36 and 38 of the Act (if constitutional) as giving the chief magistrate power to appoint stenographers and stenographic clerks.
Accordingly, I dissent.