*1 ment but also and circumstances facts he was and these facts and surrounded; surrounding circumstances include the condition his family, natural of his and the and char- objects bounty amount acter of . . .” his property.
I cannot with the agree majority’s view that “in armchair” in his when settlor, docu- signing ment the of which towas avoid decimation of purpose his assets Federal taxes could estates, possibly have had the “actual intent” to provide devastating taxation his estate against daughter’s the majority he thinks intended.
I and would affirm dissent upon opinions lower court.
Glancey Appellants, Casey. et al., *3 Eagen, 1971. Before Jones, November Argued Pomeroy, JJ. Roberts O’Brien, for ap- C. with him Robert C. Hems, Duffy, Norman pellant. H.
William Chief Counsel to the Auditor Smith, A. At- Deputy with him Charles Woods, Jr., General, Gen- Shane Creamer, Attorney and J. torney General, eral, appellees.
Opinion Mr. Chief Justice March Jones, 1972: twenty-eight
Prior there were January 1, 1969, salaries, whose City Philadelphia magistrates magis The chief City. were statute,1 paid by salary and the per annum $15,000 trate’s was annum. $12,500 magistrates per the other was each of the office of magistrate January 1, As of Pennsyl 16(u) Schedule abolished: On a new Mu January Constitution. vania Traffic and a new record, a court of Court, nicipal came into existence: Philadelphia City for the *4 16(e) and Article Schedule 5, 6(c), Article Section 5, Constitution. Pennsylvania of the then named the Commonwealth Governor of The the new magistrates judges as of former twenty-two amended, 1743, §37, as 1937, L. P.S.- P. of June Act (B). §1138 six as judges Court and former
Municipal magistrates appointed judges of the Court. Seven of the new Traffic of this of bar of the Court—members Municipal of fifteen Judges” termed Court—were “Law of the bar this appointed judges—nonmembers Judges.” Court—were virtue Sec- “Lay By termed Consti- tion to Article 5 of the 16(r) the Schedule Court, par- jurisdiction Municipal the new tution, ex- as to the “Law ticularly Judges,” enlarged jurisdiction the former by magis- ceeded the possessed trates. July
From until January 1, 1969, their duties judges Municipal performed Court requirem the constitutional compliance full The specify ents.2 Constitution of did not paid be to the Municipal amount to compensation in the The reference Constitution judges. Court mandate that “judges is the compensation pro . as . . shall be the Commonwealth compensated by vided law. shall not di Their terms of unless law office, minished during Com officers of the to all salaried applying generally added) (Emphasis Nee, monwealth.” 16(a). until from
During period January the Munici- legislation on October passage same salaries they were had paid pal Court prior in a status acting magisterial been while this sub- January 1,1969. During period Gen- the Auditor requesting vouchers monthly mitted approve Treasurer (appellees) eral the State time, period judges, tliat these It is averred arraignments 35,000 preliminary approximately and hear- conducted approximately 12,000 disposed ings, criminal heard and cases, 3,500 19,000 that more than criminal civil eases and jurisdiction of the Common Pleas were cases within Judges.” assigned the “Law *5 and to pay, respectively, salaries in the following amounts: President Judge, $21,000, payable $1,750 monthly, Law Judges, $20,000, payable $1,667 monthly, and Lay Judges, $16,000, payable $1,375 Ap monthly.3 in pellees, the absence of any refused legislation, to in, approve and pay amounts of said vouchers excess the salaries which the said been judges had receiv ing when were in a magisterial status.
Finally, General on October Assembly, enacted legislation which provided a salary scale for Municipal in Court the amounts requested. However, statute provided should that, although it take effect immediately, the salaries fixed should “re- late back to and be from payable 1969.” Since July 1, July 1, 1969, Municipal Court have been the salaries fixed by such legislation.
The crux of the instant controversy whether the Municipal Court judges are entitled to the salary pay- ments under the statute retroactive to 1969. Jamtary 1,
The in appellees, acting their official capacities, con to tinuing refuse to pay any increases to prior July 1, 1969, August filed the Commonwealth Court a complaint mandamus to which appellees filed preliminary objections.4 On May 25, the Commonwealth Court sustained the preliminary objections and entered judgment for appel taken.
lees.5 From that judgment the instant appeal requested The salaries in the vouchers were the same as sub Assembly pend mitted to the General and as embodied in the then ing House Bill preliminary objections, demurrer, These in the nature of a averred, (a) appellees action; (b) ínter alia: lack of cause of any authority duty legislature— lacked and were under no until the authority judicial exclusive fix sole and salaries—acted fix increase salaries. and/or The Commonwealth divided 5-2 in its determination. issues are does the presented: (1)
Two judi fix have exclusive constitutional authority cial is the statute compensation; (2) salary-fixing it makes fixed therein retro invalid insofar as January 1, active rather than to July 1, 1969, *6 1969.6
It is clear that there is vested beyond question and the branch our the of legislative government power for branch judicial to set the scale the authority salary the of 18 of 1874 Con- government. Article Section com- longer stitution directed that (no applicable) law” for should “be pensation fixed judicial Constitu- 16(a) of our present “as tion should be judicial compensation that provides une- by law.” Such constitutional directions provided legisla- recognize authority the sole quivocally be of compensation ture to establish the amount the judiciary. 1874 Constitu- However, 1838 and unlike the 1790, for “receive tions which that should provided ...” our adequate compensation services of makes no present adequacy Constitution mention be but that simply provides law.” Under the Constitutions “provided by present Constitution, authority 1874 and the to fix the has been vested amount over The years. only judicial compensation on the do so— legislative authority limitation arises from tri- by implication only that our government nature of importance partite independence of each of the three maintaining judicial compen- that such of government—is branches insure the proper functioning be adequate sation Appellants is the statute severable and that claim salary-fixing clause, clause, rather than the is in- retroactive valid. in an judicial system independent unfettered and
manner.
In Com. ex Hepburn Mann, rel. W. & S. 403 a landmark case upon rely, (1843), this to the Constitution 1838 and Court, speaking predecessor, “They its Constitution stated: a permanent have ordered salary simply, but have directed an adequate there- provided, as far as human could inde- by securing, do, laws invaluable branch pendence indispensable government judiciary].” (Emphasis added). [the W. & S. at 408. Avefurther Moreover, said, “that . construction . . which tends to defeat this or nullify fundamental and vital principle law, of constitutional must be Id. unsound.” To the rationale of Mann we continue to posture adhere but the factual in Mann clearly to the factual situation inapposite presented In appeal. me- Mann, the legislature, through the *7 dium of a repealed statute, sought diminish of a salary judge such action held legislative be a clear violation of the patent constitutional prohibition against the diminution of judicial salaries. In the case at bar, legislature, by inaction, its failed to set up any salary new scale for occu- pying newly-created judgeships.
Appellants also ex rely upon Com. rel. Carroll 442 Pa. Tate, 274 A. 45, 51-57, 2d 193, 196-200 (1971), cert. denied, 402 U.S. (1971). Carroll pres also ently in that inapposite it involved the appropriation aby legislative body of additional funds deemed neces sary operation for the effective of the court in system Philadelphia but it did not judicial involve salaries.
Time and we have again, taken the position question does not judiciary the wisdom of the action body. We legislative cannot but help how- note, both ever, dismay our at inaction legislative up- for wards of nine and one-half in months fixing law the by for salaries the newly-created judicial seats and the lack complete judgment in the ef- ameliorating fects of such inaction by making once salaries, had been fixed by legislative action, retroactive to Jan- uary 1969. The performed exemplary fashion their duties, duties which have been ex- much panded by constitutional pro- no requirements, yet vision was made legislature for the payment any salaries to such judges until more than nine and one-half months after new duties com- menced. Only by virtue of the exercise of dis- sound cretion by appellees have appellants been and then only such salaries as had been fixed by law for magistrates whose offices had been abolished and whose official duties were limited very and re- stricted in comparison with the imposed duties new Constitution on the new Municipal judges. The legislature, by permitting this situation exist, completely abdicated its function of legislative respon- sibility.
After more than nine and one-half months of in- action, acted and fixed at a then level adequate but, some unrevealed reason, made such salaries retroactive only to July Appellants urge we uphold that portion of Sec- tion (Act statute of October L. P. 17 P.S. §711.2) fixes the salaries of the judges but that we strike down as in- constitutionally firm the date of the retroactive clause 2— July 1,1969—and make the Section retroactive Jan- *8 uary 1,
The thrust of appellants’ argument rea- that, by son of the retroactive clause of Section 2, appellants are of the deprived salary increases six over a months’ ef- the 1969—and thus 1 to July 1,
period—January in violation judicial is a diminution fect the Constitution. the though the even that,
We agree com judicial that mandates simply Constitution of much the “fixed unlike by law,” shall be pensation Constitutions mandates of salutary wiser should judges that 1838 and provided compensation,” for their an adequate “receive services obligation it is the constitutional duty of the independence in order to insure legislature, govern as branch of (as executive) well in amount provide compensation adequate ment, responsibilities commensurate with the duties very involved. To less violates judges do form of government. framework of our constitutional Constitution construing Almost 125 years ago, it requiring was stated: “The mandate aptly for all ‘services’ to be ‘adequate compensation’ provided that which these is as as required judges imperative its diminution their continuance prohibits during springing The the last, office. first is as as obligatory es government with it from the frame of equally great tablished themselves as the paramount people are which neither nor law, legislators, governors, ... It for the at liberty disregard. safety for the benefit of the and not people from To latter were protected legislative usurpation. it was as necessary provide insure their independence receive an ‘shall adequate compensation declare that the services’ as to when shall not ‘diminished law’ their con ‘fixed "7 in office.’ tinuance Lancaster, (1849). 4 Clark re Courts In
87 Even 2 is if the retroactive clause of severa Section ble section8— from the of that salary-fixing clause would which we hold is not—we to see how that it fail If benefit we strike down as invalid appellants. from the balance of Sec retroactive clause and sever it tion the lan then be faced with 2, appellants would “This 28 guage provides, Section of the statute Act shall effect Section immediately.” 28, take would statute, portion 2, valid including would appellants take effect on October and 17, 1969, be one-half three and deprived thus additional months of salary. increased re have
To offset this
would
us
result, appellants
salaries effec
write
retroactive clause
make the
tive as of
reasons
For various
January 1,
op
“[retrospective
we
do: in
first place,
cannot
however,
eration
is
favored
by
courts,
not
act
will
be
as
unless the
law
retroactive
construed
implication,
express
necessary
or
clearly, by
language
ap
indicates
a retroactive
that the
intended
§2201,
plication.”
Statutory Construction,
Sutherland,
Nat’l Bank
Farmers
p.
(3d
See, also,
115
ed. 1943).
Trust
v.
Real Estate
333 Pa.
Co.,
Co. Berks County
167,
A.
94
v.
290 Pa.
5
2d
390,
(1939) ; Regan
Davis,
be
A.
138
751
law shall
(1927). Furthermore,
“[n]o
be
and manifest
clearly
construed to
retroactive unless
Construc
ly
by
so intended
the legislature.”
Statutory
L.
P.
P.S.
May
1019,
tion
Act
46
Act,
§56,
2d
v.
399 Pa.
160 A.
also,
Scoleri,
Com.
See,
110,
§556.
In the
cert.
ment, expeditious- branch perform legislative failure of adequately its function to responsibility ly from Jan- their services compensate our assump- be cured July 1, cannot uary the excession duties and legislature’s tion of the and authority. of our scope power *10 to failure of the legislature do condone the We begin to be should that the salaries provide these upon 1969. The Constitution placed January 1, duties of a court responsibilities new new of the court far the greater than the duties of the Con- Constitution before Long which the abolished. or became the effective, legislature knew, stitution in respect, have its provisions should known, after the nothing. the did Even yet legislature waited Constitution became the effective, legislature appellants per- nine and one-half which months, before manner, formed their duties a conscientious legislative the salaries. Such fixing appellants’ new excuse. beyond explanation inaction is or appel- penalized Even after the acted it leglislature in manner com- lants to them a by failing compensate performance mensurate with both their duties and the of such duties. inis favor of the con
However, every presumption legislative of acts of the stitutionality body but a clear violation the Constitution— “[njothing a clear usurpation power prohibited—will justify department act of pronouncing unconstitutional and void.” Bus legislative department ser v. 282 Pa. A. Snyder, (1925), 449, 128 citing Riblet, R. R. v. 66 Pa. Pennsylvania 164, 169 (1871). In absence of demonstration legislative body clearly violated Constitu relief cannot tion, grant sought. we if Moreover, as invalid which makes did strike down that clause we retroactive we lack July 1, 1969, in Section 2 clause authority to substitute a power the salaries retroactive to 1969. Our making January 1, function interpret law; function does not embrace the to make law or to right legislate.
Until the “fixed law” com- appellants’ no appellees comply were under pensation, duty appellants’ requests vouchered when and, such was “fixed were by law,” appellees duty under follow the legislative directive, duty appellees performed. affirmed.
Judgment Each party to own costs. pay Eagen Mr. Justice and Mr. Justice Korbuts concur in the result.
The former Mr. Chief Justice former and the Belt Mr. Justice took no in the consideration part Barbieri or decision of this case. *11 Opinion by
Concurring
Pomeroy
Mr. Justice
:
I
in
concur
the result
reached by
today
the Court
because it is manifest on this record that mandamus
does not
lie
properly
these
against
particular appellees,
the Auditor General and the State Treasurer. The writ
is available only “to
the
compel
performance
min
of a
isterial act or mandatory duty where there is a clear
in the
legal right
a
plaintiff,
in
corresponding duty
the
and a
defendant,
want of any other
appropriate
adequate
remedy.” Philadelphia
Presbytery Homes,
Inc.
Board
Abington
Commissioners,
vides of the peace by provid be the Commonwealth as compensated shall the to Article 5, law.” Schedule abolished by (u) ed and established in its Mu place office of magistrate Traffic the of Phila City Court for nicipal Court responsibilities. functions and enlarged delphia, Act Court It the therefore, Magistrates’ follows, 368, §37, P. L. No. 15, 1937, 1743, Act of June 1937, authoriza contains P.S. §1138, as amended, sup longer will no payment tion for the magistrates, Furthermore, any salary appellants. port payment compensation supra, Article 5, §16(a), provides new courts to the Philadelphia Commonwealth, Magistrates’ while by As City Philadelphia. payment Act orders finally bill for these two courts which Act of October legislature, enacted by increased 17 P.S. related the §711.2, P. L. 259, §2, for is clear that July bach it 1, 1969, salaries ending January commencing the period pay was no law authorizing there June appellants. of salaries to That time ment for rate received at old fact issues legal does not involved. affect magistrates judi legal In authorization specific the absence covering period question, appellees cial amount.1 authority pay any no express legal had in mandamus compelled a suit cannot now be They beyond act admittedly legal a further to perform in the the increase new pay poAvers, viz., rate for the first six magisterial old over the rate Appropriation By 4-A Act No. the Gen- Act No. alia, appropriated, §137,500 Assembly inter the sum of eral *12 Municipal $38,750 of the Court and for members for the 22 salaries period July Traffic for the members for the 6 salaries enactment, however, strictly This was an 1969. to June 1968 salary judges serving appropriation, not establish a did courts. those
91 year. if com This be so even would months period paid pensation already for the six month argument constitutionally inadequate, question were made in case.2 has not been 2 may say appellants resort to mandamus is not to This compensa provide adequate compel for their Tate, A. Pa. tion. ex rel. Carroll v. See Commonwealth (1949). Leahey Farrell, ; (1971) A. 2d v. Pa. 2d 193 questions presumably involve, alia, inter Such suit a would magistrate’s salary, old which in fact the amount of the whether for the first months con six was stitutionally prohibition adequate the constitutional and whether office, against terms of diminution applying Commonwealth, to all salaried officers of the unless law payment §16(a), inhibit would amount less establishing provided the Act of October than commencing July 1, Any period comment scale for course, would, premature questions be both at this time on these and unwise. Appellants. Shaffer et al.,
Commonwealth