Dauphin County Grand Jury Investigation Proceedings

Investigation Dauphin County Jury Grand Proceedings (No. 1).

Argued May Before 18,1938. C. J., Sci-iae- Kephart, Stern JJ. eer, Maxey, Drew, Linn, Barnes, petitioners. IWm.A. Schnader, Attorney, District P. Oarl B. P., with him Shelley, Attorney, Assistant District for Dis- Samuel Handler, Attorney. trict by Mr. Chief

Opinion Justice Kephart, May 25, 1938: April Attorney Dauphin

On District 29, 1938, County, presented primary on the eve of election, county, Quarter the Court of of that Sessions requesting special grand jury that a to in- be convened vestigate charges during against campaign made the public private pe- The certain officialsand individuals. presented Quarter tition the Court which Sessions, to Report- be was basis of found the its will action, Attorney personally, Notes. did not er’s The District through any investigation his make of the cam- office, paign charges, petition nor does he aver his that he charges any of have a Where- the to basis fact. knew upon the of the Commonwealth and the Attor- Governor ney presented petition a to in which General this Court ordering grand jury it was averred that effect the the investigate charges to combined be to seri- these would ously hamper interfere the executive branch charges government, in its the conduct of and that vague investigation predicated so and indefinite that an upon Jury pass on them would enable the Grand to not merely regu- efficiency criminal but the violations, larity management depart- of the of the entire executive Attorney ment. It was that the General also asserted only investigate charges these was the officialwho could grand under Constitution and the a that, law, investigate jury competent is not criminal authority. Accordingly, a aimed writ at the executive petition prohibition On this issued asked. we stayed proceedings until fur- rule to show cause and ther order of the Court. briefly questions be be: involved stated investigate

May of the ex- the conduct government? uninvesti- ecutive Are branch of State gated charges (that uninvestigated campaign is, convening Attorney) District a sufficient basis for peti- jury? jury May grand a on convened any spe- charge tion does not commission allege the commission cific and does offenses, jurisdiction Dauphin County crime within authority exclusive General courts? Has investigate branch the conduct of executive prohibition government? Is the a writ prior premature of the court made because scope grand investigation? defining its explicit General are The Governor and the Attorney prosecu- do not wish to save from stating in that of crime. They been any person guilty tion who has and charges fully all will be speedily also assert that at argument and the them, it was stated investigated by in- taken the already up that the General has he has “to that end the made and vestigation your and consent approval the full unrestricted and Governor of the the Commonwealth.” petitioner, in used the language recognize strength We 2, providing Article Section IY, Constitution, vested Gov executive shall be supreme power Ap ernor. We also effect recognize Hartranft’s conduct of the execu 85 Pa. the official peal, 433, subjected is not be government branch of the tive The mere fact a crime is judiciary. investigation by acts or a with, of, per in connection result charged of government formed executive branch its by the judici official is not sufficient to warrant capacity, into the function broadly undertaking inquire ary basic it is may add, of that branch. we ing And, the pow in our government fundamental system of government coordinated branches are ers of the three from one kept clear, and should be separate other. branch cannot assume judicial overlordship The In versa. or vice Com legislative, of the executive it 311, 295 Pa. at monwealth v. Widovich, “The constituent coordinate judiciary stated: other pow not subordinate to government; it is part on the legislative nor it for existence depend does ers, directly people, come without will. Its powers its From the time- very nature agency. intervening distinct it kept separate, honored should powers, those government perform independent entity under common immemorially been duties which have is in the judiciary it. domain of the on imposed law justice under law; field of the administration powers the law. Its applies construes and interprets, possibly tbe first to be exercised civilization. compass Within its duties it ascertain and punish against may, crimes State, at times, designated operate depart- as check on instances, other government; strength security ments of but its come complete separation political, from a and absolute administrative or ministerial functions. es- While in may attempts it sence restrain on the life of the State, may protect therefore under the common law judiciary does not State, nor assume, should it be government burdened with, those functions of which are political, administrative or ministerial, nor does it inter- by meddle with the execution these functions proper government specifically branches of unless re- quired legislative so to do the Constitution. The position executive should branches in a be, are, actively delegated protect pas- to their functions sage question.” of an act like the one in disposition enlarge

We have no to minimize or Appeal, rule of nor enter into a field of Hartranft’s judicial unlawfully conflict where action would disturb government; the conduct of this should be never done judiciary if the is to survive. But we do not understand petition presented by from the the Governor he immunity prosecution punish- claims from arrest, ment if he violates the criminal statutes. We do not un- peti- derstand General or counsel for presenting petition, any tioners, this make such claim. Everyone or should know, that no citizen of knows, our public State officer is above the law. All be punished public for criminal violations. As to officials, plain is the mandate of our Constitution. Section dealing impeachment, of Article with states: VI, “The Governor and other civil officers shall be all liable impeachment any for misdemeanor office . . .; person acquitted, convicted accused, whether shall judgment nevertheless liable indictment, trial, punishment according to If we hold that laid” tlie Ms Governor and official were immune from family criminal for crime prosecution wMle in office, would be for a possible government corrupt bankrupt when State, and, apprehended im- trial, plead munity. never This was the intention of the framers our Constitution do understand we the Gov- ernor such claim. makes

We agree contention, however, wholesale of the vague and indefinite contained in charges the District Attorney’s petition, the form in which it is presented, would seriously ob- struct of the executive operation branch the gov- ernment. Here there are eight separate, distinct and unrelated different involving governmental all of which it agencies, to submit to un- proposed bounded investigation. This lead would to serious prac- tical results. We do not hold that in- charges properly as their stituted, having the purpose and development in exposure system of a of crime cannot office, investigated by should not be the grand under jury proper supervision. The immunity given the executive as to his in Appeal official acts would Hartranft’s those officials protect against subordinate whom accusa- tions of by indictable offenses are the District made At- an torney such more than investigation, case would the Governor himself from protect indict- ment violations of the criminal law. chief the Attorney General, law officer of the with the he

State, powers wide may, through possesses, Quarter the District Sessions and the Attorney’s office, see to it that the administration proper of the govern- ment in is not the course impeded investigation by the removal of books, wholesale plans, specifications, and other documents absolutely essential to its func- Superior in tioning. The an opinion Presi- Court, dent held has Judge Keelee, production records documents hands of the cannot executive be compelled officer in where executive the exercise of be disclosure that such would determines

Ms discretion best to the in service, opposed injurious public 121 Pa. (Marks’s Superior Appeal, of the State terests 447. at p. and see Appeal, Ct. 185); 181, Hartranft’s wide given powers General Though Attorney P. L. 177, of April 9, Code the Administrative violation of investigate any sections 904 and 908, ex- do not powers executive such branch, law within on investigation by grand clude an investigation properly An properly presented. in the criminal laws with violations concerns itself conduct government, matters incidental of the gov- into the official acts merely inquire does not case, as in the within erning power, Hartranft General, jury. Attorney But power this Court in Com- recognized by with his vast powers, 325 Pa. 17, may supple- monwealth ex v. Margiotti, rel. investigation; supervise ment and to do if he believes the duty it is his so may, he —and in the lawful conduct of be hindered government is to security, peace the detriment its affairs to the District Attor- good State, supersede order — entire or he investigation; conduct of the ney results be act obtained, if he believes better will may, District We therefore Attorney. with the conjunction General’s investigatorial conclude that merged to or with those supplementary be powers may if coordinated advisable, jury, may, of the grand under his su- before the grand jury one pervision. jury was special grand call for the

The of this genesis Attorney. the District suggestion the petition unanimously 324 Pa. 48, of McNair’s Petition, rule investi- institute an is this: To adopted by Court, must knowl- the court have gation suggestion on such a sources trustworthy information or definite edge criminal viola- system acts forming that criminal one “and at least committed, been law have tions 299 base exist on which to should offenses cognate or more 62: at page there It was stated investigation.” a general inquiry- an institute or prosecute “There is no power dis- crime be that some on chance speculation jury N. 721. The grand : Re 87 Y. Morse, Supp. covered The court is to investigate. must what crimes it know an to set such inquiry sessions has no power quarter to believe that has cause in motion unless it reasonable some criminal misconduct disclose investigation will punish. its jurisdiction which is within upon “The not be set fruitless must jury or con suspicion founded mere rumor, searches, upon investiga are matters for jecture. proper police These upon integrity Before reflection is cast tion. the forces investigation

public preliminary officials charged crime should discovery of law determine there is real foundation. made to whether investigations great expense Such involve fre the citizen to subject inconvenience public, interfere with the normal functioning public quently and bodies before it. throw a brought They officials parties subject cloud of to attack suspicion upon confidence in must undermine them. There public on proceed.” solid basis which to See also sound, be a Commonwealth Commonwealth v. 177 Pa. Hurd, 481; v. Ct. Commonwealth 515; 7 Pa. Dietrich, Superior v. v. Hack 352; Pa. Ct. Commomoealth Superior Klein, necessary Ct. 519. It is therefore Pa. Superior ney, information presented whether the to consider now the action of the court warranted Attorney the District grand jury. the special in calling had before us the Petition, charge

In we McNair’s is the present inquiry peti- the basis of court; call indi- judge’s District tion of the on that investigation predicated scope cating pass upon this Court cannot urged It is petition. court below until the lawfulness because to the grand jury, given has may scope limit and restrict the to matters less petition. in than those outlined the extensive It is suffi- say proceed- contention to cient answer to this that this begun suggestion ing on the was written District Attorney, upon the and that called was the presented petition. petition in his information If the present justify does not sufficient to the matters investi- gation, jurisdiction or disclose matters within the the lawfully call the could been made. court, have That only question the is the before Court. the Furthermore, investigate court below convenedthe “to inquire petition, into all set forth said matters any properly other matters which come before including investigation any other it, con- unlawful part person public on within duct official jurisdiction this ...” Court, it- call, investigation sweeping for an more and unre- self, petition than the seeks. stricted portion come We now to the more in- serious of our quiry, specific and that is the consideration of the charges Attorney’s that have been made the District petition. Generally ap- speaking, and observation plies every eight charges to each and one of the made in vague, petition, indefinite, are uncertain and as we stated based and, above, thereon, permitted through if to be carried would intended, government possibly cripple State hinder the its functioning. properly charges But in ac- instituted, requisites cordance with the essential have we outlined fully, safeguard discuss would will more State’s and should no such All interests, cause hindrance. charges petition subject are to fatal defects, predicated and no indictment on mentioned, now to single allega- could stand. There is not a eight tion in of the time when, alleged place violations of the where, law were suggestion any one committed. There is no jurisdiction Quar- committed of the Court within of While County. petitions Dauphin ter Sessions of forth in detail evidence character need not set and Petition, on stated in McNair’s they rely, which we at least one we to reiterate it there must be wish here, related crime charged as of a specific part system have necessary it to discovery for the which is crimes inde- eight assistance. Each of these grand jury’s offenses, do unrelated pendent covering they charges, separate though should be treated by investigations, forth defi- by made one should set jury, each one more the parties or nitely cognate crimes, with on of a thereto, forming system crime, part A grand jury buttress the particular investigation. crime alone; should not be called to one investigate crime magistrates. for the if the set police is But, be investi- forth is of a all part system crime, concerned, of these is gated. every As far as one is the former beyond it admitted conference with that, made no the District has General, Attorney truth. as to their independent whatsoever deals Taking charges separately: Charge (a) these up with the to State cabinet officers payment money of the Finance Committee of the Demo Chairman in return for cratic their “influence” State Committee, certain to be enacted the Gen legislation by causing eral omits the essential designa Assembly. to bring tion of the time and transactions place jurisdiction court. Dauphin County within occurred they The omission of the time at which very from the if because, arguments important presented, be barred there a crime it would statute Commonwealth v. 85 Pa. limitations. See Bartilson, 5 Pa. Superior Commonwealth v. Ct. 482; Werner, 249; v. 28 Pa. 259, Commonwealth where indict Ruffner, held ments for crimes barred statute were to be Furthermore, acts here alleged defective. fatally did under any not constitute criminal offenses statute of or It is not at the common Commonwealth law. improperly bribed,

stated that the cabinet officers mem- solicited or unlawfully attempted solicit, or else- Harrisburg bers of the General at Assembly, infer did. No they specific cannot we where, talked or attempted is named whom legislator influence. There no accusation these persons influence for cor- improperly their did so exercising these charged None of the officers purposes. rupt In other Legislature. are the State acts members enough is broad to apply this accusation words, is a fee to address lawyer another, paid who person, influence it legislative pass- committee to properly a The District states certain legislation. ing indictable offense not have been an brief that it his money to pay associations brewery for representatives but then in return for their influence, to these persons criminal con- to adduce certain inference attempts by in the anywhere proceedings not appear duct which does up does not set charge The as stands in this case. offense. indictable in the purchase

Charge irregularities (b) concerns as Kentucky and rock, highway use, trucks for asphalt, the charge Again appended petition. appears these place any where time specify does criminal of- specific No occurred. alleged irregularities to District Attorney attempts The is charged. fense conspiracy within the general transactions bring of March 1860, of the Act of Section provision that all Code provides Administrative P. L. 382. As the through Department be made must State purchases com- conspiracy to make Supplies, of Property that department with connected individual some plete should be impli- purchases these controlled and who to named as being party is official No cated. such is designated, No vendor alleged transactions. these transaction single aof given information nor More- named. parties money anybody paid according made must be such official over, purchases plans standard tlie consent specifications, with the Commissioners of Public and Buildings; Grounds bids must be taken and contracts awarded to lowest is yet there here bidders, specific allegation not a there was one of requirements. a violation of these The re- Not a single is mentioned. law irregularity It quires contracts to and best bidder. go to the lowest should how or sort of influence to be appear what asserted to the officer and cheat corruptly solicit con- allege Commonwealth. itself fails to it lacks the elements of crime. See spiracy, Commomoealth v. 318 Pa. 465. However that Routley, if leveled may be, specific there accusation at some officer of the and some of these ma- government vendor terials are named whom supplies, persons money for the solicitation passed purpose corrupt cheat and defraud the the door is government, open investigate If one therefrom. such arising of the court specific jurisdiction offense within the of fraud and cor- forth, allegations set the essential of crime part and this is of a ruption, alleged system of such a foot- process committed or commission, general hold obtained a investigation would warrant into department government of of conduct this But must be a its there should and purchases. spe- all or the elements stated charge cific charges, as decided grand jury investigation above, ground Petition. in McNair’s use of relating to the

Charge (c), improper highway likewise fails to set forth State equipment by employees, acts committed, place. the time were when If crime offense is laid. one single specific specific No within the being County been forth as had set It is charge investigated. could be there Dauphin, this defective. fatally rela- improper and unlawful (d) charges

Paragraph Authority State one the General tions between not made charge directly by contractors. This was its evidently Attorney was taken the former but General, newspapers reported hearsay by from the or former General. There was no accuracy. place made as its There no fixed is time nothing charge for the transactions this and there is supposed irregularties to indicate that oc- County. Dauphin curred in State General Author- ity throughout operates the State and there should have specific charged juris- been a offense within the court’s conspiracy by of some contractor and diction Authority to General State cheat and defraud the Com- monwealth. before a could in- Furthermore, vestigate single crime it be further should averred, part system that it other criminal violations Dauphin cheat and to defraud the law State County, being per- as relates to the contracts there necessary and that the aid formed, expose these other related criminal acts. of a But, important allegation more there here is no nature, irregularities relationships crim- unlawful may inal. Acts or done under a contract be con- work plans trary specifications; be defec- irregular still such acts need be crim- tive, work, fatally inal. The defective. (e)

Charge borrowing money by concerns the suggestion presented Governor. As it is there is no criminal violation of the nor could there be under law, argument. at If the circumstances related the loan mentioned at the time there stated, was made Gen- Authority did not then exist. The eral State Act creat- ing it had been declared unconstitutional. It is con- public it is not officer ceded that unlawful to bor- money unless the loan individual, when row definitely proven to and to con- made relates is be solicitation defraud the nected unlawful with slightest allegation any- There is not the State. thing need this occurred. We not discuss the effect like very this from the case on as matter, of the Hartnmft for in- no language allegation grounds affords not vestigation. The District allege does or the Governor influenced directed the unlawfully a result of advances. He award contracts as these not does even was anything improper done; he merely Mayor Philadelphia states that wishes any to know if there No impropriety.

could on lawfully hearsay such predicated suspicion.

The coercion col charges and the unlawful macing, lection of from assessments contained public employees not forth paragraph (f) are set sufficient clarity Not grand jury. warrant action any single allegation of fact these is concerning charges presented. It is stated subject who was macing instigated nor and conducted it. who The coercion, charges completely leave question unanswered where, and breadth of the length State, these acts occurred, yet answer this is deter question minative jurisdiction Dauphin County court. The to these charges is defec fatally because tive under the law as it exists now no crime is charged. reference charges were drawn with the Acts of June P. L. 1883, July 13, 96, 15, 1897, P. L. 275. These Acts relate to definitely elections and campaign contributions, are specifically ab Act of solutely by the June P. L. repealed 3, 1937, 1333, Section at P. L. 1508 and 1513. These Acts highly means of important as a forcible preventing con tributions for election employees State purposes parties. regulate Laws which by political matters per taining to, incidental conduct are to, elections, In re election laws. 26 D. & C. Moskowitz, See 567. The title of the Act broad unquestionably of 1937 enough to cover the these and other Acts “relating repeal to elections.” Their repeal was deliberate intended, and there Code Election which nothing new provides substitute for nor are offenses them, there thereby created approximate be petition. may regarded the fact Despite effect of the most unfortunate for the it is the State, ofAct 1937. is (g) charge paragraph (f) a similar

Paragraph for failing allege time, and is defective similarly instance of the or a single specific offense, place, subjected to name who failing persons were conduct. These are also af- improper charges vitally It fected of 1883 and 1897. repeal the Acts in the argument stated at these were payments not form of contributions. It is unlawful campaign persons con- dealing campaign with State make and there is no solicitation tributions, charge corrupt to cheat and defraud the State. conspiracy final contained in (h), The charge, paragraph the statement official that an investi- merely by public Hill” disclose would facts which gation “Capitol and belittle a scan- “graft Avould over-shadow previous dal.” This no elaborate examination certainly requires The Dis- vagueness insufficiency. to disclose its this charge. trict no defense of Attorney attempts concerned The court is not with the circumstance made heat of a primary these Avere or not nor Aviththe whether campaign, question faith. concern made in Its sole good with to warrant a legal sufficiency executive branch of the investigation government, have no bounds proper at its would origin, which, clear- The must be investigations course of such scope. jurisdiction marked limits of the ly proper within must have been investigated the court. The crimes to be is held. county committed where officer indict any public of course having crime he is charged or other person there must ground inquiry committed. To there crime but individual, mere District be, must in the opinion sufficient on hand of actual crime evidence court, promise the assurance of one conviction for each of the particular offenses There should he a suffi- charged. cient number of instances of crimes particular within the system of in- crimes involved to warrant general and the vestigation, conditions should be such as to make it reasonably impossible obtain evidence with- out the aid of the grand jury. Otherwise the Common- wealth would be creation exposed danger of the of a super-government by judicial inquisition.

Without more than in the Dis- appears trict Attorney call an investigation by the grand in the jury case present The unwarranted law. return of the court to the rule to cause is below show therefore not sufficient to justify its action; court not having certified that from definite knowledge gained sources trustworthy it has received information of the character required to authorize the convening jury, of criminal finding indictments as a result of this investigation would be open grave attack. In conclu- before the sion, District or Attorney the court below again proceed to or present to order a grand jury inves- we tigation, repeat there must be presented some cred- ible evidence from a trustworthy source that a violation of the criminal law has taken place in each of the several charges contained in the District Attorney’s petition. That credible evidence should be from some person who will that a testify criminal act acts been has commit- ted and that there are other similar acts which show a system of crime has been, is, process com- mission. The liberty the reputations of our citi- zens should not be jeopardized by indiscreet and reck- less charges.

The grand cannot be jury permitted to proceed under the present petition. Leave granted to amend or sup- plement it within twenty (20) days conformity with opinion, unless so amended the writ of prohibi- tion will be directed to issue.

reporter’s note. twenty days allotted The District within suggestion, Supreme amended filed an Court Reporter’s parts found .the are essential which the Commonwealth infra. The Governor Notes, parts of Pennsylvania the material thereto, filed answer Reporter’s Notes. found are likewise to be Maxey Opinion Dissenting : Mr. Justice history Common- of this time in the For the first prohibit petitioned governor this court has its wealth, allegedly this court criminal acts saying: prohibiting “The order, has issued present petition.” peti- proceed under the cannot Attorney of of the District to is that tion referred County asking Quarter Dauphin Court of Sessions the investigate County the of that by wrong-doing by public charges officials and others. of April by charges 27th a until made man who These forty of this months General been for last had judges request after court, three of that the State. This declaring unanimously assented to, due consideration, charges this court that official return to in an bribery conspiracy office, malfeasance “amount to judges These defraud the Commonwealth.” to cheat and stop investigation this “would further averred of the In the face best interests state.” to the be serious investigation. stopped this court has this return, of this says granted filed is the order “leave It is true that attorney’s supplement peti- [the district to amend or days twenty . . . and unless so amended tion] within prohibition be directed to issue.” Avill the writ satisfy petition can be amended so as to Whether majority opinion, requirements remains to be of the proposed is The fact is seen. prohibition may stopped a issue now and Avrit days. twenty court under The order made is, to find unprecedented, any attempt stated, facts or reason authority my in either is, for it warrant a fruitless quest. judgment,

I consider raised peti- Governor’s question grand jury investigation, tion, prohibit proposed ever to this court important presented one the most I Since am convinced that years history. in its is majority erroneous, my duty the decision clear. In the late 1923, dissent is Alexander Simpson, then for thereafter a member of this years many Univer- writing “Dissenting Opinions” on court, Vol. at Pennsylvania Review, 71, page 205, Law sity said: “If after a fully page judge convinced, that the decision of the ma- matter, review careful affect the citizens wrongfully generally, will jority establish other deprive litigants which will precedent or common constitutional, of their law statutory he even he justified, though is not stands rights, alone, of his submitting opinion silently colleagues, for not great be; infrequently by however rights insidious are minimized approaches great such if My view that finally destroyed.” majority is henceforth to the law of this opinion State, immemorial to have rights people the body-politic by public done to officials and wrong will in investigated by grand jury, others, practical minimized almost to the of point effect be destruction. opinion The first errors are found in majority formulations of “the opinion’s questions involved.” “The It is there said: involved questions briefly he: the May grand jury the investigate stated con- of executive branch of the duct the State government? This question ...” in majority opinion answers negative. answer thus My question posed by district is that the majority attorney the judges nowhere asserted Dauphin County of intention have the executive branch investigated gov- State of ernment. On the to have contrary, proposed they declared, as investigate,

grand jury “unlawful of officials and on the of public conduct improper part Commonwealth.” affecting others interests con An cannot be his official’s conduct unlawful official it ceases is official’s conduct unlawful when duct; Nation executive of this State or If a chief to be official. is commit that crime his crime, for a should, example, is as amenable and he much act, not his private, official for obscure law crime as the most to the criminal Illi In then citizen of land. 1921 the Governor in courts on a tried the criminal of his state nois was The him criminal conspiracy. charge against a investigation resulted from ordered grand jury a v. People court. See Ill. Small, district local, charges fairness it should be stated that no (In 437. made the Gov criminal have been wrongdoing against wrong ernor of The of criminal this State. some of others.) Furthermore, are made doing against unlawful the District persons allegedly whose acts Judges Dauphin County proposed not even in investigate public have the citizens it office, who, claimed, but were had private with certain members of the dealings gover unlawful nor’s cabinet. says then majority opinion (referring : “Are involved”) campaign

“questions uninvestigated Attor- District charges (that uninvestigated by is, convening a sufficient basis ney) grand jury?” It also in thus question posed, negative. answers the it is that is the question right answer to My court district if the district did attorney, consents, him the investigation to have assist here, of criminal acts allegations affecting public in whole his He is un- committed part county. der no investigating allega- these duty preliminarily he no adequate has means of tions, and, fact, mating other than with a grand jury. such grand jury a then opinion says: “May The majority charge not which does on a petition be convened allege and does commission any specific offenses, of the jurisdiction crime commission within that that is courts?” answer County My the Dauphin as a prerequisite no required anywhere, law has ever attorney a district that investigation, grand jury criminal offense. any specific the commission of charge to de- of a grand jury The very purpose been com- offenses have or not criminal termine whether in possession attorney already If a Avas mitted. district criminal of- him of by of facts justifying merely investigation would fenses, attorney’s petition The district expensive superfluity. been have charges and serious “grave does aver that J. Margiotti made Charles by General] [former of- public of certain the conduct others concerning he enumer- charges of these others.” Some ficials and Quarter County of Dauphin Sessions ates. The Court of “if mal- charged as, true, the acts characterizes publicly to cheat and feasance in and conspiracy office, bribery judges the three defraud the What Commonwealth.” substantiality of these Dauphin think as County their official they say what charges (1) by shown unani- fact court that (2) return these investigate summoned mously charges. opinion

My reply majority to the criticism “does not allege district attorney jurisdiction crime commission within com- Court” is this criticism is County Dauphin of the court answered return pletely part Quarter as County reads Dauphin Sessions court . . . will limit the investigation follows: “This jurisdiction of this to matters within specifically us clearly given details of the court. number of instances of violations of show law within County.” Dauphin disagree majority opinion the

I also with that the alleged time the omission to the offense oc- when investigation “very important.” curred would any, disclose If when the if were committed. crimes, they by barred the of Statute the Limitations, Quarter of Court Sessions of would, course, instruct the presentment jury when their in- was made that by dictments should not be returned for offenses barred charged the of Limitations. I think if Statute the crimes grand jury County Dauphin the of were committed, acquaint people should this State with the facts, whether convictions for the crimes were barred Statute of Limitations not. entirely disagree following

I also with the statement majority opinion: contained vestigation in- “The wholesale vague charges and indefinite con- Attorney’s petition, tained in the District in the form presented seriously would obstruct the operation government.” of the executive branch Judges Dauphin County I do and the not, do re- not, gard “vague and indefinite,” and the as- implication, investigation or at sertion, least an of- charges presented by the serious this record “would seri- ously operation obstruct of the executive branch of government damning is in itself a most indictment government any of the branch referred to. Before government seriously can in of its branches ob- investigation wrong-doing respect structed wrong-doing permeated to that branch, must have thoroughly that branch so that to excise it or even investigate would constitute a if it, critical, not fatal, major operation. If that is the situation in branch government, of our State it is time that the citizens apprised this Commonwealth should become of the fact. agree majority opinion I do not with the that “the wholesale [to removal room] books, plans, specifications, absolutely documents and other grand jury’s] functioning” [i. essential to its e., have “serious results” the practical would majority be con- envisages. investigation This would opinion supervision under the of the three admittedly ducted Quarter Sessions of judges Court competent can be depended upon see County, Dauphin in such be conducted to it will as not to interfere the normal functions of manner This State survived without government government. in criminal the Courts of proceedings difficulty Dauphin a third of a official century ago many County documents” specifications other plans “books, in court in an- government produced of the State criminal court of subpoena Dauphin swer County. 187 A.

The case McNair’s Pa. Petition, 498, opinion precedent as majority only cited by is easily of a writ of distin- prohibition, the issuance As in the Mich- the case bar. at writer guishable The Me- Vol. said: 1020, aptly Law igan Review, 35, p. be Pennsylvania “may easily explained Nair Case in of wow-criminal mat- attempt investigation an to order i. In McNair’s this court case, Petition, ters.” e., jury investigation or- stopped a years ago grand tw!o the fifteen judges comprising one of single dered Quarter of Allegheny County. the courts of Sessions until The writ was not issued of prohibition after and the non-criminal nature had judge charged jury, was made matter subject inquiry thereby case district attorney In that admitted manifest. on 63 of court’s opinion this as recorded this court, page “he to uncover no evidence of expected that case, We held “it was not the function of corruption.” ... or criticize” Smith dis- Judge supervise of certain minor cases. “The by magistrates position inquisitorial body use of as an court “to the crim- limited,” said, conduct and is to be extended to review inal court also declared: “As it This discretion.” judicial there no bad faith was admitted was and the mistake judgment, attorney error neither the district impose nor the under such conditions could liability.” criminal in the instant case Dauphin County judges which the Court ordered inves- tigated designated judg- cannot be as mere “errors of ment.” We before have us the of the District Attorney charging (as already acts if true which, noted) “amount [as the court said] below to malfeas- bribery conspiracy ance in office, cheat and de- fraud the Commonwealth.” majority opinion basically

I am convinced that the laying requirement, prac- erroneous down inas grand jury investigation tical it does, effect that a can- Quarter not be ordered a Court of unless Sessions specific place “the time, instances of the offense”are attorney’s petition all set forth in a district with sub- stantially precision the same as an indictment. No such requirement by any ever hitherto has laid been down in court this Commonwealth. This basic error the majority opinion excerpts becomes manifest when from opinion compared jurists language are the with of opinions respected whose have been followed century. example, majority opinion says: over For the legal [the “Its concern court’s] sole is with the suffi- ciency grand jury investiga- of the to warrant a government. of tion the executive branch of the . . . ground inquiry To there must be the mere charge of crime but must individual, there be, opinion of the District and the suffi- court, upon cient evidence on hand of actual crime to single find at least one cited conviction.” Not a case is proposition put for the novel thus forward in the ma- jority opinion prec- I and assert confidencethat no any for it edent can be found in the annals of American justice. contrary, British our or court of On the courts again exactly have time time enunciated a doctrine contrary. to the

315 Our courts have highest said the lower frequently their own peti i. without motion, courts e., tion anybody, order criminal mat investigations there no lim general public import ters and that are of the their inquiries grand jurors except its own court the instructions diligence particular are. For whose one of instrumentality example, Su greatest Judge State’s President judges, Rice v. Com. Klein, Court said in 40 Pa. Ct. perior Superior earlier from an decision 352, quoting Pennsylvania court: “Criminal courts of their own motion call juries to and direct attention which, from their general of matters of public import, justify operation community, nature entire re This reiterated as principle such intervention.” was 117 Pa. as 1935 Com. v. Ct. Hackney, Superior cently v. U. 157 S., Frisbie 160, Supreme In U. S. 519. “In said: this country of the United States Court al investigate . . for the . [it] suggested no how whom matter crime, leged the evidence is suffi determining and after them, on party suspected trial, to justify cient putting indict formal preparation direct Pa. Green, Com. v. 531, In A. ment.” given “to act on matters to them of a grand jury right and no is discussed limitation is court” charge by in entrusting grand juries action placed on court’s James investigate. Wilson, signer with matters and the Consti Independence the Declaration both appointed States who of the United tution George Washing Court by Supreme the United States for the pros are not juries appointed “Grand said: ton, for the appointed gov are court; for the ecutor or a jury The oath of grand people. and for the ernment under he commission his oath is man —and marked dili by those limits, except no assigns acts — And shall inquiries. of his to the course gence itself, prohibited be inquiry and opportunities means 316

restrained?” His question implies the correct an- swer was an emphatic “No.” This of Justice language quoted was with approval Wilson Court Supreme of the United States in Hale v. 201 U. S. 43. Henkel,

In the frequently cited case Lloyd Carpenter, King Clark 188, President Judge Phila courts in delphia said 1845: “Criminal courts of their own mo tion call the attention of grand juries to and direct investigation of matters of general public import, from their which, nature and in the operation entire community, such justify intervention.” This opinion King’s Judge was cited with in approval by this court Com. v. Hurd, Pa. 35 A. 481, 682, where this court upheld the action lower court in that a ruling grand jury investigation was the proper procedure “where the as a public, public, contra-distinction from individuals can who do their own are con prosecuting cerned.” court there held This that a that cer tain commissioners county concerned unlawfully in public contracts a matter “of in general public terest” which called for grand jury investigation.

The court of clothed with county great power and charged with an important trust. It must public be always until assumed, proof contrary shown, that a court of criminal ordering charges is public motivated sense of duty, only will see to it that the investigation fairly, is conducted impartially without This court oppression. Rowand v. 82 Pa. of a upholding right Com., district indictment attorney submit an before without a commitment of an said jury, previous accused, always integrity independence “intelligence,. must be trust.” presumed accompany high public said Supreme Pennsylvania sixty-two Court years “The ago case of Rowand v. Com., supra: action of officer attorney] the district [meaning the court here of review could be brought purposes found to their only when abuse discretion should

317 manifest That has al- flagrant.” been both have In of Commonwealth. law this been the settled ways slightest abase the instant there has the case not been coart, or the attorney of discretion the district either by flagrant.” mach is “manifest and less abase in- direct this had the Daaphin right Court County inor response on its own vestigation initiative, either attorney or the district suggestion by a mere In citizen. other from by suggestion reqaest attorney district view facts the presented right their only the it court, my judgment, was, order this bat investigation. their duty imperative investi- For the act this asking unprecedented ex- be some logically there should gation stopped, reasons reason. What the invoked traordinary of them counsel? An examination of able ingenuity the slightest that none of these reasons have shows merit. coun- urged (quoting

The one most strongly was power is beyond “It argument brief) oral : sel’s the execu- the conduct judiciary investigate I branch tive In to what addition government.” I to this point have as now already proposition, said for the at novelty being oat that possesses least jastice. time court of first an American advanced ad- country Every department government no “divinity ministered individaals about whom to “hedge once hedges,” divinity supposed as of these who administer' king.” When individaals charged personal oar are any part government mach criminal wrong-doing are as amenable In of the land. the humblest citizens courts are Chisholm first v. Georgia, Dallas Jay, John “In Europe, Chief United said: States, Jastice of the here ascribed to prince; sovereignty generally . . Oar are it rests . governors with the people. [mere- Jastice In the same case ly] people.” agents from Frederic following quoted James Wilson Great: Prom courts “all men ouglit to obtain justice, in the estimation of since, all men justice, are equal, whether the prince complain of a peasant, a peasant complain of the prince.” As illustrative of the appli- cation of these sound I cite the fact that principles, within the last decade and half three governors American states have been called before the bar of crim- inal courts their terms during of office to defend them- selves against charges which they accused.

Counsel for the petitioners cites Appeal, Hartranft’s 85 Pa. 433. case That has no whatever relevancy to issue here. In that case the Supreme Court refused to permit Quarter the Court of Sessions of Allegheny to issue an County attachment for contempt against Governor and his Adjutant-General re they because fused to before the appear grand that jury county in testify respect riots which had taken in place Pitts in burgh and in the July, 1877, suppression the National Guard under the command of the Gover number of soldiers other nor, persons were killed and wounded. The Governor and Adjutant-General his refused to on testify appear ground that they had no knowledge of the riots except what they had learned in their official capacities they declared that “an examination in into their acts connection said riots be would detrimental that public service,” were then “in constant correspondence with the army the field in regions the riotous of the state, daily expectation being at the be required and to front, called to a distant would the interests county endanger service.” This court is all it public this held, held in that (1) case, propriety gover information (which nor’s withholding obviously was for information) required by was official himself to governor (2) his determine, whether the seat of government duties at at Harrisburg were such that at the time he in a subpoenaed appear distant he could not part endanger- without state, and tes- service so appear of the public the interest ing This to determine. himself alone matter awas tify, one of his to a subpoena said: obedience [the court “Is discharge he and if shall so, duties, governor’s] com- rests him' upon to that which duty preference himself the governor It decided that mander-in-chief?” inter- the time) mutually (at must choose which two not There is discharge. duties he should fering intimation even the slightest in that case opinion could government department the executive the con- On investigation. subjected “Nei- in that case: opinion court said its trary, court of the about the power there doubt ther is any affairs concerning make body inquiry direct If society.” and affect the public peace directly which as tried, here, the had Case, governor the Hartranft crimes alleged a grand jury to prohibit and because others, officials by by public committed crimes have the alleged preferred governor, he, General, Attorney subordinate, investigated by his like the state exactly have a state facts we would in the Hart- no thing such occurred but of facts here, de- can layman quickly or Case, any lawyer ranft I that case. reading report by simply termine investiga- of this grand jury repeat: stopping again of Pennsylva- in the history tion precedent is without no other ever asked person nia. and governor No other any no court ever granted other thing such any have been of state nation judges thing. Many such coordinate branch of the investigated government, aby and these have investigations the legislature, to wit, removal impeachment resulted sometimes of prohibition No court ever writ granted judges. investigation. such an stop attempt peti- advanced stoutly Another proposition of the Administrative section 904 tioners since L. P. 177, 238, gives Department Code of 1929, of the gover- the approval Justice power, duty investigate any nor “to violations or makes its alleged of the of the laws Commonwealth violations, argues that the come to its counsel notice,” Attorney powers under the Code “are no General’s less county extensive in than those of a territorially powers of a are not limited as are county grand jury.” just provision Because of the cited petitioners counsel for ar- Administrative Code, paragraph gues, quoting from Clause “C” of “28” of the prohibition: Governor’s for a writ “Under powers March Section 13 of the Act of con- 21,1806, upon ferred General Administrative superseded right Code the common have 1929, law investigate grand jury to violations of law the conduct of the executive and administrative work government.” state Section of the Act of March 21, provides in all thus as follows: “That invoked, remedy provided duty enjoined, cases where a thing by any act or directed to be done acts of As- sembly of the directions of the said commonwealth, penalty strictly pursued, and no be shall shall acts, agreeably any thing provisions inflicted or done of the common further than shall be cases, such law, necessary carrying for such act or acts into effect.” by governor proposition

The thus advanced bold Attorney Act General can under the of is that since investigate Code) (the 1929 Administrative law viola- alleged nowhere a violations, tions investigate any alleged crime or crime state can investigate. Attorney fit The ab- General sees to palpably surdity proposition that is so obvious of this argumentative for. No one ever refutation is called no interpretation give any attempted before to such simply That act Act of 1806. means above cited completely statutory field enactment covers a where occupied formerly by the common law, the common law procedure field. Section 904 from is ousted purport to of 1929 does even Administrative Code

321 by grand for occupied ages field cover investigating tlie 1929 is given the Act of General Attorney The juries. po- much as alleged very investigate crimes, power investigate given are power licemen and detectives he investigation, his In of alleged crimes. furtherance the attendance requiring can issue subpoenas, also for and papers books witnesses and the production each of his assistants A marshal and examination. fire the same have exactly of fires in their L. P. Act of June 8, 1911, 8 of the under section power the attendance witnesses compel PS (53 3598), examina- books papers and the production has as yet or his assistant no fire marshal but tion, upon conferred investigating power claimed that juries all grand facto ipso away power him takes marshal The fire suspicious origin. fires of investigate or return cannot find presentments and his assistants General. Grand Neither can the indictments. no more juries occupied by grand The field juries can. the fire than it is Code the Administrative invaded by marshal statute cited. Administrative Code was section quoted juries investigating from grand

never intended to take to take such away If attempted powers. legislature find the Constitution it would juries, power grand Ar- in its Section pathway. immovably standing judicial vests the power ticle V of the Constitution enumerated, courts therein the Commonwealth of quarter are “courts enumerated these courts among of a court instrumentality indispensable sessions.” An our legis- jury, state sessions grand quarter im- or interfere with take away lature is powerless author- No less an jury. of a functions memorial in United said, Justice John than Chief Marshall ity Fed. Case No. 1 Brock 156, States v. Hill, from statutes their powers do not derive grand juries that itself, from the constitution by implication but criminal jurisdiction, invested with are courts when grand juries are “indispensable instrumentalities” that juries jurisdiction, “grand are accessories to the criminal jurisdiction of a have court, they power and are act, bound to far as act, so can they aid that jurisdiction. Thus far, power implied, is as legitimate is as if given.” James Wil- expressly son, referred to already said of opinion, grand juries (Wilson’s Vol. : “All 214) Works, 2, p. oper- ations of and of its government, ministers and officers, are within the compass their view research.” I will not be a party obstructing their or prohibit- view ing their research. failed

Having to advance any specific legal reason why this investigation should not proceed, petition- ers resort to the blanket allegation that the charges are vague too and general and ask: “Assuming all of these statements what crime true, was committed?” By “these statements” refer to the former Attorney General’s charges that $20,000 paid certain political leaders for the enactment of certain legislation. If a price is for the being paid enactment of legislation at the State citizens of the Capitol, ought Commonwealth to know it and the obviously find appropriate out way through county where the seat of government under located, the su- pervision Quarter Court Sessions county, of three consisting judges known throughout the Commonwealth for their im- integrity, ability and partiality.

Another made in this case was that “unlawful irregularities existed in the purchase of materials, equip- ment and supplies by Commonwealth,” exces- sive prices were paid these “cer- supplies, and that tain money” sums paid certain lead- political ers and others those materials “with vendors of intent to cheat defraud Penn- the Commonwealth of sylvania.” do in- petitioners want that charge vestigated because it “does not (so they say) specify

323 ‘irregularities’ alleged any place of time or the when they that a crim- it obvious occurred.” did is If occur, legitimate conspiracy inference it is a inal existed and conspiracy part out in the carried of this was some that Capitol Department Secretary of the State where anywhere Supplies only If it occurred his office. has grand jury did occur and out it can find where else, court of to the criminal the matter can then be referred Dauphin judges proper county. The courts County aver in their return: “The details given clearly number instances vio- to a as us show petitioners Dauphin County.” The lation of law within say charge, on that “the is absurd its face.” as made, also very convincing If the This statement. is a ought eager charged its to to have be made is those false, jury. proclaimed by grand falsity As to the other judges charges, say sufficient that three it is Dauphin County all declared District they bribery and to malfeasance in office, “amount conspiracy Commonwealth.” cheat and defraud the grand investigation (and jury asked now “fishing halted) cavalierly expedi referred as is “tag” any proposed To tion.” “fishing expedition” destroy it is not sufficient to investigations “fishing impair are its usefulness. All yield big

expeditions,” “fish,” often enough expedition large that the to show small, piscatorial precepts fully justified. Neither in the fishing of this Common Walton nor in the rules Izaak requirement that before to be there found wealth lawfully must fur fish in waters citizens par proof existence of fish those nish advance Any identify of them. least some ticular at waters cripple requirement fatally a time- such would foolish entirely legitimate industry. In a case de honored ago Proceedings, Jury years In Re five Grand cided sitting Supp. District Court, Fed. Federal citing Judge Philadelphia, Kirkpatrick after declared, a decision of the United (Hale States Supreme Court v. 201 U. Henkel, 43), S. was “settled beyond all question in the federal courts investigation by need not be preceded by any definition whatever of the crimes investigated the persons against whom accusation sought.” In other is words, no man a has to demand bill of right particulars before he is investigated.

To hold, majority does in opinion practical that a court cannot order effect, grand jury investiga- tion unless the district attorney judges in specify advance all the offenses and all the offenders ex- pect to uncover and all the convicting proof they pos- is tantamount sess, exactly a decision that grand jury investigations should be ordered only when they have no to serve. purpose What the majority now pre- scribe precedent as conditions to a grand jury investi- gation have been for ages the in- grand jury fruits In vestigations. Hendricks v. United 223 U. S. States, 184, the of the Supreme Court United States said that the of the identity offender, and the precise nature of the if there be offense, are one, normally at developed the conclusion of the grand jury’s not at the be- labors, The ginning. dictum which in a appears footnote on page of the Petition opinion McNair’s (supra), that “in all cases where have investigations been or- dered or formal refused, written have been made crime in a definite evidence” and that con- “all cerned the criminal conduct of is public officers,” simply not the The from opinion writer knows his fact. experience both as district and as in a attorney judge populous knowledge his of the county prac- investigations tice other counties that are ordered without courts written usually formal first and the crim- charges being made, alleged inal both citi- public private misconduct officers The subject object to investigation. zens is equally uncovering of crimes such investigations generally public primarily injure large. at Such object manifestly investigation judges Dauphin County ordered the instant case. Whether judges information which moved the of the court “trustworthy came from below act those sources,” judges position in better than we are to determine. very judges fact that the considered the information sufficiently trustworthy justify investi- gation, always should be as hitherto it conclusive, has question propriety on the of their act. This been, years ago (supra) court said two McNair’s Petition : seriously injure pub- “Criminal acts which affect or require generally . . . lic immediate attention so that suppressed.” these evils proposed

To halt the before the Court of Dauphin County charged Quarter Sessions of has acquainted grand jury and thus the citizens this of Com- further monwealth nature and seriousness of the disclosures which moved that to court action is, my judgment, grave attempt prevent a mistake. To to investigation charges of such have been as made in attempt put futile as an this case is as a lid on a grand volcano. Innocent men have no reason to fear a jury investigation wrongfully and when accused army wrongfully demand as it, officers, should when ac- inquiry. demand a court of The lid should cused, light great Pennsylvania on. lifted and the turned A (Addison judge Appeal, page in memorable a juries 47), by said: “Grand are watchmen, stationed survey the conduct of their laws, fellow citizens, inquire by public authority and and where whom has infringed.” been or our constitution or violated, laws I Dauphin County go would let the “watchmen” to work at once. king wrong”

The doctrine that “the can do no no has counterpart country. public in this Public officials are “public public “pri- officeis and a a trust,” not servants, preserve,” judges This vate which County of attorney Dauphin propose .district on. should If the go Dauphin governor opposes, this is to be shorn practically County grand jury the criminal investigate of fully court its power chapter a new be- on this appearing record, of court and history in the 216 this ing years’ written Pennsylvania. of history and a half centuries’ two In I dissent recorded. that chapter want PETITION.

AMENDED Investigation—Initiation—Suggestion jury Grand of Powers — — charged allegations attorney Sufficiency Grimes district — — — System related crimes. attorney, prescribed, filed within the time the district Where conspiracy suggestion petition which set forth an amended occurring crimes, allegedly groups several which embraced county statutory period, set and further forth each within the part alleging group separately, an overt act as group each necessary grand system for the crimes which it was of related definitely investigate, suggestion stated and the trustworthy attorney possession was in of evidence district sources, showing mat- reliable that the information obtained from crime, system and, alleged attached ters constituted a judges quar- suggestion, court was the certification sessions, stating that, having sup- considered the amended ter opinion petitions plemental court was of from the definite trustworthy knowledge gained evidence sources convening as to authorize the such a character governor jury; filed which contained an amended and the specific persons complete denial for himself and named charges, suggestion, criminal and in which it was of all the attorney’s a that the district amendment was delib- further stated quarter attempt perpetrate a fraud on the court of sessions erate solely court, technically appellate meet the made re- and supported petition, quirements and that the of a valid evidence; prohibition a writ of “manufactured” “framed” or suggestion petition of the the amended or district was refused and quarter attorney for its ac- was court sessions returned to governor’s writ tion, amended for a also as was answer, prohibition, for such consideration as be taken as just. might and that wise court deem opinion. a separate filed memorandum Mr. Justice Barnes DISTRICT AMENDMENT SUPPLEMENT TO OR PETITION. ATTORNEY’S that he had made dili- The District averred of the facilities the limits gent investigation within necessary and complete available to him and for a more enforcement of the criminal laws of Commonwealth in in need of the assistance of Dauphin he was County a that he had and competent grand jury investigation; 1935 Har- showing credible evidence at year D and others unlaw- Dauphin County, A, B, C, risburg, to cheat and defraud fully conspired Commonwealth, blackmail against to extort and money levy employees, business persons doing citizens and private and to extort and agencies; money Commonwealth its interested persons passage blackmail levy and to otherwise accept bribes, certain legislation, conduct and cor- engage improper including unlawful malfeasance in office; misfeasance and rupt solicitation, this unlawful A that at time of had been conspiracy, B Commonwealth, still was Governor had official been still state and chairman of high state C political committee, during portion office had held a state and therafter period high and still was the of another occupant important state office and of a state and D secretary had been political committee, chairman and still was of the finance committee of a state political committee; continued conspiracy 1937 and during years 1935, 1936, still County existed within the and elsewhere in Dauphin the Commonwealth.

The District Attorney then averred particular illegal all conspiracies specific groups crimes, embraced first general conspiracy within charged, setting forth each group separately, averring each case had been illegal agreement made or continued within two last years past, Dauphin County, an overt charging act acts of conspiracy, extortion, charge might bribery, committed in blackmail, as the be, Dauphin County, years past, and as to within last two group alleging part each or the overt act acts as a system necessary of related which it for crimes, was investigate. to illegal conspiracies charged as follows: were

(a) and been A, D, E, who had and still was B, C, Harrisburg secretary political resident a state conspired unlawfully and to extort committee, others, money levy county, city and blackmail from and state, employees, public by other means of threats, coercion, intimidation and other nature methods, unlawful conspiracy being public of the unlawful such that each employee required pay specified percentage was to salary, depending upon salary, his the amount of the designated money persons and that the collected was specified political (b) distributed to committees; A, B, unlawfully conspired money D and others C, to extort levy and blackmail from architects, contractors and persons doing agencies other business its with State, politic corporate, other bodies nature conspiracies being appointed that no be architect would given agencies nor a contract its State or appointment approved by his B unless was first and D, agreed pay D and until he B, one-third others, (c) of his commission; A, B, C, who had been D, F, secretary and still and who had been A, was G, high unlawfully conspired still state official, by unlawfully cheat and defraud Commonwealth awarding supplies contracts for material and to those responsible (d) pur- who not the lowest bidders; conspiracy, had been and still was H, suant who department, attempted chief of a bureau a state money levy demanding blackmail from a extort person specified approval by named H, sum capacity, H his official of a certain mechanical device, having acknowledged proper device was that the approval, entitled and because of the fail- to his official payment device not been had and ure to make the (e) approved; gave D Governor of thenA, was president of General State and the Commonwealth specified large Authority sums Commonwealth, money, in order to influence the award to cor- D, of porations contracts for in he of interested, which was Authority buildings of for the within the construction Dauphin pursuance County, and in of elsewhere, and fraudulently conspiracy and dis- contracts were Authority corporations honestly by to D or awarded having in he said contracts been which was interested, upon specifications prepared plans based and with the approval A in fraudulent and dishonest manner so of preference might D in favoritism be shown en-

that and corporations abling D to submit and the interested low specifications pur- bids for the in that contract, requirements posely ambiguously in details and drawn might be consid- to the end contracts when awarded stifling purpose in favor of and for the of com- D, ered petitive bidding; D and was assist- enabled, specifications prepared plans ance of have the and A, to corpora- by persons employ D been in the who had ap- in and interested, tions which he to secure the was pointment inspectors inspect per- to be work inspectors formed and and under contracts, superiors approved fraudulently corruptly and their performed under contracts A and the cor- work these performed porations, having defectively been said work (f) I and B, others, and with inferior materials; 0, D, levy unlawfully conspired money to extort and black- legisla- persons passage mail from in the interested (g) then a member of the and tion; A, B, C, D, J, Liquor thereof, Control Board and later chairman Liquor appointed member Control who K, joined conspiracy, and then oth- Board 1937 and money levy unlawfully conspired black- extort ers selling spir- persons doing mail with or business Pennsylvania liquors Liquor itous vinous year by requiring Control Board; the ven- large pay money dors to them sums considera- purchase liquors Liquor from them tion of the special Control other considerations. Board and for that from The District averred his investi- gation possession trustworthy of evidence and he was showing from reliable sources information obtained alleged system engaged constitute crime the matters by public the enrichment officials, others, political committees; themselves and that the evidence give nature as to on hand of such a assurance of at was charged; one for each of the least conviction offenses without the assistance of the that would impossible procure complete investiga- full a and be for reason much the the evidence and in- tion, possession formation of and under was the exclu- persons charged conspiracies, sive control of the agents, and their and that information had been with- making from him and he had been hindered in held a complete investigation; full and that the criminal acts injure public generally permitted cited if and, endanger public safety permit sys- continue, would and depredations by public tematic officials and others; ordinary processes inadequate that the of law were cope with and discover them. AMENDMENT OF GOVERNOR TO TO

ANSWER DISTRICT PETITION. ATTORNEY’S answering specific averments Before contained in suggestion Attorney, District the amended emphatically every charge denied each and Governor implication or of criminal otherwise unlawful con- against him. duct made charged that the amendment to the

The Governor Attorney’s petition attempt by a deliberate was District perpetrate upon Attorney fraud the District Dauphin County upon Quarter Sessions Court of making unsupportable Supreme averments Court, technically require- meeting solely purpose for the investigation. grand for valid ments charged Attor- the District further Governor The ney’s competent evi- credible that he had statement Attorney had if District and that false; dence was any possession purported Gov- evidence his any conspiracy participation it was criminal ernor’s sup- could be evidence which “framed” or manufactured ported only perjured testimony. requested require Dis- the court to

The Governor Attorney publicly the court to reveal to trict forthwith any might support of his aver- he have evidence jury investigation not should and that ments, satisfied District unless the authorized his correct. court that statement was District At- Governor further averred partisan torney by political motives; actuated investigation, oppose un- did an that the Governor impartial bona der officer, the direction part officer fide of misconduct on the having employee person with, relations business of, contrary government, on welcomed the state but the investigation; opposed under such he Attorney Dauphin of the direction the District County given. for the reasons

Opinion by Me. Chief Justice June Kephart, 20, 1938: original prohibition petition

When for a writ of Attorney was filed the Governor General before impressed we were with the seriousness Court, charges implications in of the Dis- contained vague Attorney, trict but as and indefinite we required granted us to the Dis- do, law leave, charges against Attorney file criminal trict definite parties involved if he had such criminal present. Attorney The District some time afterwards suggestion an amended for a did file When a jury investigation. hearing was called to deter- mine of this sufficiency supplementary petition Governor time to requested additional amend the appli- cation for a writ of time prohibition. hearing extended and the Governor filed his answer amendment.

We have now before us amended suggestion of the District amended petition for a writ of prohibition. Considering first the amended sugges- without going into it tion, detail, charges, sufficiently under the Act March P. L. 31, 1860, section 128, as the common as well to cheat and de- law, conspiracy fraud the to extort Commonwealth, money levy and to blackmail, engage corrupt mis- solicitation, feasance and malfeasance office. Wilson See v. Com- Pa. Commonwealth v. 56; monwealth, Richardson, 229 Pa. 609. This is so as to drawn embrace all the matters referred to generally throughout entire amended and to suggestion, include the several specific groups crimes, allegedly occurring Dauphin within the County statutory It further sets period. forth each acts group separately, charging overt of con- as the spiracy, extortion, blackmail, bribery, charge may and as to each act as be, group alleges overt a part system of related crimes it is necessary investigate. The suggestion definitely states that the District At- from investigation by his torney, himself, associates and of evidence possession and trust- subordinates, information obtained from worthy reliable sources, the matters showing alleged constitute a system crime. Attached to this is the certification suggestion Quarter of of judges the three Sessions Court stat- the amended and ing that, having considered supple- court “of opinion mental is the defi- petition, knowledge nite it from gained by trustworthy sources, is of such a character as to authorize evidence of the convening presentation of charges that evidence to sustain the in said amended supplemental petition. ...” complete petition The Governor’s amended specific persons for himself and the named denial, charges. suggestion, He criminal of each and all Attorney’s further states that the amendment District attempt perpetrate is a a fraud on the deliberate Quarter Court of and on this made Sessions Court, solely technically requirements to meet of a valid petition, engage “fishing and that the in a intention is to expedition” charges of libelous and false scandalous, during primary campaign. made the recent Gov- The petition charge against ernor’s makes a direct the Dis- by improper trict that his conduct is actuated length reciting charge. motives, at the basis for that Attorney orally open The District court denied these charges. The Governor’s further states: oppose investigation,

“I do not under the direc- impartial tion of an of bona fide officer, part employee misconduct on the officeror of, person having business relations the State Gov- with, contrary ernment. On the I welcome shall insist upon thorough-going investigation every charge complete report people with a Penn- made, sylvania, prosecution every person against and the genuine criminality oppose whom evidence of exists. I resisting any and am under the direction Attorney Dauphin County District for the rea- given.” I sons have impressed sincerity

While are all we with the only Governor’s statements, tribunal under the Con- dispose properly stitution that can of these issues Dauphin Quarter fact the Court Sessions of County. powers. We cannot invade its constitutional This is also true the averment the Governor supported by that the are “framed” or “manu- factured” evidence. same answer must be made to request his for the revelation of evidence. suggestion is

There no doubt that the amended can he opinion scope prior conforms the of our within power the of this it is and therefore not within thereto, in con- below action of the court Court restrain the ducting it has or- dered. regard- may repeat, said before however,

We what we judiciary ing executive with the interference government: of branch strength language recognize

“We used providing Article Section Constitution, IV, supreme power shall be vested Gov- executive system ernor . . . basic and fundamental in our powers government that of the three coordinate of separate government be branches of are and should kept judicial The one the other. branch clear, legisla- overlordship of cannot the executive assume . . . or vice versa. tive, disposition ... to enter into field

“We no have judicial unlawfully dis- action would of where conflict government; be never turb the conduct of should judiciary ...” done if survive. judges

We full confidence Court have require- Quarter constitutional observe the Sessions upon judicial fully demands them. ments meet suggestion petition the District The amended County Dauphin be will returned County Dauphin Quarter for its Court of Sessions petition Governor’s amended as also the action, will prohibition, taken answer, writ court deems as that wise for such consideration just., discharged prohibition refused.

Rule and writ Opinion Separate Mr. Justice Memorandum : Barnes question only this Court is whether

The before Attorney Dauphin the District amended for a County Grand Jury investigation is in form suffi- cient to meet the requirements of such petition.

merits of the the amended petition have been considered or The passed this Court. upon by only justification that can be found for the proposed investigation is it be conducted in faith good that will for the sole justice purpose bringing persons guilty of violating the criminal laws this Commonwealth. can in Certainly there be no Avarrant for an inten- law a Grand tionally protracted investigation by Jury, one of such character as to constitute a inter- judicial ference coordinate proper a functioning Avith branch the opin- state as indicated government, ion of the Chief Justice heretofore filed in this proceed- ing. With the evidence the District al- which I leges to be in his find it difficult to already possession, understand to be he does now cause warrants why issued and to trial the bring against promptly persons It whom he there alleges wrongdoing. is evidence seems to me interest, would public and at the time in- same Avould afford persons right if their volved, accused, constitutional unjustly I For this reason prove charges. their innocence of file this memorandum separate opinion. OF

PETITION DAUPHIN COUNTY JUDGES. Judges—Petition Appointment judge to he Courts — relieved — preside specially. judges quarter Dauphin Where the the court of sessions County presented petition requesting judge a that another he as- signed relating proposed matters to conduct that court all grand jury investigation, governor alleging that had im- pugned judicial integrity, charging their them with honor and being political-minded, having accepted peti- certified the attorney investigation district for a with- tions study analysis, having ignored existing out and with then grand jury having grand jury and with convened a new which had high proportion affiliation, particular political of voters with a appeared thought governor and that trials might grand jury investigation he the outcome of the could circumstances, fairly them, orders not be conducted under tbe judge granting appointing were made of another tbe judicial proposed preside control of tbe district to over take County. Dauphin Judges Fox Hargest, Wickersham, Dauphin County Supreme petitioned Court Court, pro- participation to relieve further them ceedings prayed judge that another be sent forth- entire with to take control over investi- any. gation, if OP POX AND

PETITION JUDGES WICKERSHAM. HARGEST, petitioners in radio averred that Governor, judicial integ- impugned had their honor and address, rity. judges quoted from the address of Gover- The charged being political- in he them with nor, Republican judges, having accepted and minded with Attorney petitions for a certified the of the District study analysis, grand investigation jury without grand jury ignoring existing and available great propor- grand jury convening which had a a new Republicans registered registered Democrats. tion of given peti- they petitioners that had The averred and had due consideration of the District tions they inquiry, convened a new had careful that made existing grand jury would because the then only term week in the new for a have been able sit properly investigation conducted have been could and no knowledge had no and that it that time, within judges grand jurors. political The of affiliations thought appeared the Governor that since stated that might be the outcome trial which fairly conducted could County, Dauphin as such judges unwarranted earnestly requested might suspicion be, judge assign con- Supreme to take entire another Court The full text of the petition matter. trol of whole follows: OF THE COURT: THE THE JUDGES SUPREME

TO HONORABLE, B. Wicker- petition of Wm. M. Frank Hargest, Judicial sham and John E. of the Twelfth Fox, Judges county respect- constituting Dauphin, District, fully represents:

In June Monday evening, a radio address delivered involved this 13, 1938, proceeding while question the Gov- Supreme was still undetermined Court, im- ernor of H. George Earle, III, this Commonwealth, pugned the honor and judicial integrity your peti- other judges. among things, tioners as The Governor, pre- radio first referring petition address, sented to us in this said: matter,

“The highly three presented political- I been frequently minded have Republican judges whom obliged to censure publicly attempting usurp function of the Executive Branch and establish govern- judicial injunction. ment Republican

“The judges immediately upon receipt at once and without the seal petition, study, placed of their testimony court that document its upon Jury. truthfulness and convened a Grand “Their action was so and so high-handed, unprece- Pennsylvania Court called a dented, Supreme halt and in formal censured opinion publicly them their unjudicial conduct. ... I greatest have the re- spect for the does I every but can- judiciary, citizen, by not stand idly permit judicial now abuse processes by political-minded the Ex- judges destroy ecutive Branch of our government injuriously affect of our well-being people.

“When of office judges forget so far their oaths as to resort to actions to them the censure bring upon down Supreme Pennsylvania they Court of cannot seek

sanctuary behind their robes of office. suppose high

“One would that such a rebuke from the court would have been effective, but Dauphin County Friday, Court. Last in another out- rageous campaign by Republican maneuver leader- ship Friday Dauphin County and man its District —the petition amended was submitted to the —an judges. same by flagrantly political

“It was far the most document history ever filed court all the of the Common- . . . wealth. Dauphin

“With this before the same it, County only Court which a short time before had been by highest acceptance censured the State’s court for its original again petition, study analysis, without receiving peti- within an hour after the amended unmitigated gall certify had the tion, that it had ‘duly considered’ such facts. . . . gathered by

“To hear evidence these various lieu- Republican Republican organization, tenants of the ignored Jury sitting, court the Grand then con- registered jurors, tained seven Democratic and con- Jury vened a Grand new while other was still avail- able.

“By only an almost unbelievable two of coincidence, twenty-three jurors registered new Democrats, although registration a ratio of eleven to one, ratio Dauphin County Republicans between and Demo- only crats is 3 to 2. astonishing twenty-one

“Also, coincidence, Republican jurors employees, included two former State papers personally signed one of whose dismissal I whose attitude toward the State re- Administration as a imagined sult can better be than . described. . . politically inspired “That inquisi- ais Republican to be conducted henchmen of the tion, Republican jury before Committee, State dominated Republican answerable to a hostile on evidence Court, gathered by Republican a research man for the machine. coming

“A Democratic State official before such a set- up absolutely play.” would have no of fair chance newspapers

In the text furnished but omitted speech following appears: in the radio people Pennsylvania “I that the know for stand play decency. every right thinking fair I know that attempted prostitution man and woman revolts at this judicial process political purposes.” of our judges Dauphin County proud justly have been they of the record of the fine Court which inherited zealously which have most striven to We maintain. hardly necessary deny Supreme think it Court the unethical and untruthful statements made as above quoted political-mindedness judges as Dauphin County Court, the Su- because we think preme politics Court is familiar the fact no any question has ever entered into the determination of in our Court. petitions

As to the statement that the and second first accepted by us “at once District study,” your and without our return filed Court granted Rule on the first shows that we inquiry gave made careful it due consideration; emphatically deny and as to the second, we Gover- nor’s statement. original petition

Our April order on the was made 29, 1938. Under March the Act P. L. if we 1875, 28, Jury had summoned the Grand of the March then Term existing, only could have sat one week into began May prob- June Term in all 31, 1938, ability prop- no sufficient could have been erly conducted that time. after care- Therefore, within ful we concluded that the June Grand consideration, Jury provided summoned before should, law, beginning quoted, term. As above the Gov- attempted impute political ernor to us has considera- political by analyzing tbe of tbe tions affiliations two every juries. Jury jury A is drawn, Grand and by every person county, knows, in tliis informed Jury Republican Com- Sheriff and the Democratic acting together, in takes no missioners Court part. necessary say hardly that not It is we did know, anything political about af- and do know, not now grand jurors; that never filiations these we knew of any grand anything political of about the affiliations any happily, jury to think are able other and we, judge made ever an no that other this Commonwealth investigation to ascertain such a fact.

Through years of service there been feAV our have litigant instances that some humble where we learned imagined get impartial might trial before that he not uniformly, made matter was one us when such vagaries weighing the of such im- known to without us, judge agination, it that another was as- have seen to we appears signed that the a case. It now Gover- such that thinks trials which nor of this Commonwealth Investigation might Jury Grand be outcome judges fairly could conducted not be Dauphin County, un- umvarranted therefore, suspicion request earnestly we is, founded as the assign judge Supreme to take at once another Court including the con- matter, entire control of Avhole charge any preliminary questions; sideration Jury if trials, and conduct the the Grand if convened, necessary. any, that be pray. And ever we will

(Signed) P. J. M. Wm. I-Iargest, B. J. A. L.

Frank Wickersham, John E. A. L. J. Fox, ORDER. Judges petition of us the before

We have request- Dauphin County Quarter Sessions Court judge assigned in ing to conduct another court all matters relating proposed grand jury Under the circum- Dauphin County. can- presented stances us these judges, three we their we ex- deny request. acceding But press our confidence in the complete integrity, ability, fairness and we are these impartiality judges, had remained in of these certain, proceed- would have demeaned themselves and would ings, have the trust committed to their discharged keeping judicial accordance with the and best traditions highest of this Commonwealth.

AND NOW, June 20, petition granted. 1938,

Per Curiam. OEDEE.

AND June the Honorable 20, NOW, wit, Paul N. President of the Schaeffer, Judge Twenty- Judicial consisting County Third District, judicial directed to aside his duties hereby lay Berks, in that district and to the Twelfth proceed forthwith Judicial of Dauphin, District, comprising County there as the Harrisburg County seat, preside over and take control of the proposed investigation in- Grand of Dauphin County, the June, 1938, Jury consideration cluding any preliminary questions, if the conduct of convened, if all relation thereto. And, matters trials, any, and au- under to have same assignment, power Ju- of the Twelfth judges is vested law thority of this dicial District laws Commonwealth. Curiam,

Per Kephart, John W. Justice. Chief

Case Details

Case Name: Dauphin County Grand Jury Investigation Proceedings

Court Name: Supreme Court of Pennsylvania

Date Published: May 18, 1938

Citation: 2 A.2d 783

Docket Number: 1; 25, Miscellaneous Docket 7

Court Abbreviation: Pa.