In re Cahill, Slevin & McVay

110 Pa. 167 | Pa. | 1885

Chief Justice Mercur

delivered the opinion of the court, May 25th, 1885.

This application is against those judges of the Court of Common Pleas of the county of Philadelphia, who were assigned to open, compute, and certify the returns of the election hold therein on the 17th day of February, 1885. The present purpose is to require them to count the votes cast at that election for the petitioners; but the ultimate object is to compel an increase of the number of magistrates and of magistrate’s courts, designated by the Act of the Legislature.

The claim of the petitioners is based on Art. V., sect. 12 of the Constitution. It declares, “ in Philadelphia there shall be established for each thirty thousand inhabitants, one court not of record, of police and civil causes.” This clause of the Constitution does not profess to establish the court. It merely declares it shall be established. The Constitution does not as to this execute itself. It does not designate in what part of the city or county the several courts shall be held, nor the number of magistrates of which each shall be composed. It merely indicates the basis on which, at the proper time and in the. proper manner, these inferior courts shall be established, It thereby imposed on legislative power the duty of giving due effect to this provision of the Constitution. Art. V., sec. 5 of the Constitution provides that “ whenever a county shall contain forty thousand inhabitants it shall constitute a separate judicial district, and shall elect one judge learned in the law,” yet it was held in Commonwealth ex rel. Chase v. Harding, 6 Norris, 343, that this language did not of itself constitute a separate district whenever a county attained that number of inhabitants. It requires legislative action to provide for the due organization thereof. Many provisions of the Constitution are not made immediately and fully operative, so as to give effect at once thereto. They are mandatory.on the Legislature to enact laws providing the manner for the due execution and enforcement thereof: Lehigh Iron Co. v. Lower Macungie Township, 31 P. F. S., 482. Until the Legislature acts and makes the provisions necessary to give the courts jurisdiction, their intervention cannot be invoked. In obedience to the constitutional obligation imposed on the Legislature the Act of 5th February, 1875, was passed. It provides that “there are hereby established in Philadelphia, twenty-four courts, not of record, of police and civil causes, with jurisdiction not exceeding $100, and additional courts shall be established from time to time so as to provide one such court for each thirty thousand inhabitants of said city, and that each of said courts shall be held by one magistrate.” It further declares it to be “ the duty of Councils on or before the first day of March, 1875, and on or before the first day of January of every fifth year thereafter, and whenever else it may be necessary, to fix the general location of each of said courts by declaring between which streets or roads it shall be, so as to be most convenient for suitors and for the dispatch of public business.” It gives no power to Councils to locate any greater number of courts than is designated in the Act.

In stipulating that additional courts should be established, the Act manifestly intended it should be by legislative action. It expressly declares that in the election to be held in February, 1875, as many magistrates as there are courts in the city “and no more ” shall be elected. It nowhere authorizes the number of magistrates to exceed the number of courts.

In March, 1875, the Councils provided for the location of the twenty-four magistrates’ courts in pursuance of the Act cited.

No legislative action has since increased the number of magistrates’ courts, or the number of magistrates to be elected; no ordinance has been passed by Councils attempting to locate any additional number.

The declaration in the Act that additional courts should be established, would seem to have been unnecessary. It may have been to prevent any inference that the power of the Legislature to create additional courts was then exhausted. Certainly nothing therein contained indicates an intention of giving to any other body or tribunal, power to create additional courts or to provide for the election of an increased number of magistrates.

Although the increased number of inhabitants in Philadelphia be such as to require the Legislature to establish a greater number of magistrates’ courts therein, yet it has not so done. The Constitution does not designate the specific manner in which the section cited shall bo made operative. The sole authority to establish courts not in conflict with the Constitution, is vested in the legislative power: Patterson v. Barlow, 10 P. F. S., 54.

As no Act of Assembly provides a court for any one of these petitioners to hold, or in which he has any right to sit as a magistrate by virtue of the limited number of votes he received, it would be a useless act to open, compute, and certify, the votes east for them.

Rule discharged at the cost of the petitioners.