Margiotti Appeal.
Supreme Court of Pennsylvania
August 31, 1950
365 Pa. 330
Charles J. Margiotti, Attorney General, in propria persona, and W. Denning Stewart, Special Deputy Attorney General, with them Harry F. Stambaugh, Special Counsel, for appellant.
William S. Rahauser, District Attorney, in propria persona, and Earl F. Reed, Special Assistant District Attorney, with them Loran L. Lewis, Assistant District Attorney, for appellee.
OPINION BY MR. JUSTICE HORACE STERN, August 31, 1950:
We assume—as fairly we must in the absence of evidence to the contrary—that neither the District Attorney of Allegheny County nor the Attorney General of the Commonwealth has been guilty of any improper motivations in the performance of their respective official duties in connection with the events giving rise to the present controversy. The question for this Court to determine is whether statements of the District Attorney, his actions, failure to act, delays in action, or conduct in general, however free from any purposeful wrongdoing, justified the Attorney General, in the ex-
In Commonwealth ex rel. Minerd v. Margiotti, 325 Pa. 17, 30, 31, 188 A. 524, 530 (1936), Mr. Justice SCHAFFER (later Chief Justice), in a learned and comprehensive opinion, after tracing the history of the office of Attorney General and the origin and evolution of its powers and duties, stated the conclusion of the court to be, “from the review of decided cases and historical and other authorities, that the Attorney General of Pennsylvania is clothed with the powers and attributes which enveloped Attorneys General at common law, including the right to investigate criminal acts, to institute proceedings in the several counties of the Commonwealth, to sign indictments, to appear before the grand jury and submit testimony, to appear in court and to try criminal cases on the Commonwealth‘s behalf, and, in any and all these activities to supersede and set aside the district attorney when in the Attorney General‘s judgment such action may be necessary.”
In Dauphin County Grand Jury Investigation Proceedings (No. 1), 332 Pa. 289, 298, 2 A. 2d 783, 788 (1938), this Court, speaking through Mr. Chief Justice KEPHART, said: “But the Attorney General, with his vast powers, recognized by this Court in Commonwealth ex rel. v. Margiotti, 325 Pa. 17, may supplement and supervise the grand jury in any investigation; he may,—and it is his duty to do so if he believes the government is to be hindered in the lawful conduct of its affairs to the detriment of the security, peace and good order of the State,—supersede the District Attorney in the conduct of the entire investigation; or he may,
In Dauphin County Grand Jury Investigation Proceedings (No. 3), 332 Pa. 358, 364, 365, 2 A. 2d 809, 812, 813 (1938), the question was considered whether there was any restriction whatever upon the power of the Attorney General to supersede the District Attorney of a county,—whether “the extent of the discretion possessed by him” was “so illimitable as to be beyond the pale of judicial review.” The conclusion of the Court was that, “from the legal standpoint, such discretion may be abused, and, if so, its exercise cannot be sustained“; the Attorney General, being a quasi-judicial officer, must not act arbitrarily or from caprice but only “upon the foundation of reason“; his discretion must be “reasonably based upon the attendant pertinent circumstances from which its exercise arises.” And it was further held that “Whether the discretion vested in the Attorney General has been abused or has been exercised within proper legal limitations is necessarily a question for the determination of the court.”
Such being the established law, which, as all the counsel engaged herein agree, controls the present issue, what are the facts to which it is here to be applied? Accepting only those not in dispute, it appears from the averments in the numerous pleadings filed, the exhibits thereto attached, and the testimony taken at the hearing in the court below, that, over the course of several years, employes of the City of Pittsburgh, with the connivance and even by the express direction of certain city officials, have been using for private purposes materials belonging to the city and labor paid for by the city. The first revelation of the existence of such illegal practices resulted from the happening of an accident to a truck in which a city employe, then working on city time and for city pay, was killed while being
On the same day of the filing of the councilmanic report the District Attorney presented a petition to the Court of Quarter Sessions praying for an order directing the then present grand jury to have witnesses summoned before it for the purpose of investigating “violations of law committed by the employes of the City of Pittsburgh with reference to the use of labor and materials of the City of Pittsburgh in fields of endeavor of a private nature.” This petition, notwithstanding the District Attorney‘s insistence to the contrary, was patently defective and legally inadequate in view of the rulings of this Court2 to the effect that, in order to warrant a grand jury investigation there must be averred, on direct knowledge or knowledge gained from trustworthy information, that a criminal act has been committed and that there are other similar acts which show a system of crime has been, or is, in
On July 5, 1950, the Attorney General was appointed to office, and on July 7, 1950, he served on the District Attorney an order, dated July 6, 1950, superseding him in connection with all matters relating to the criminal acts of any and all public officials and public employes within the jurisdiction of the court, “including the investigation of charges, the proceedings before the grand jury, the trial or trials, and any and all matters relating thereto.” On the same day, July 7, 1950, the Attorney General petitioned the court for revocation of its order of June 30, 1950, summoning the grand jury. To this petition the District Attorney filed an answer; the Attorney General filed a replication, the District Attorney a rejoinder, and the Attorney General a sur-rejoinder. The Court below held a hearing, took some testimony, and entered an order holding that the Attorney General had abused his discretion in superseding the District Attorney; the supersession was accordingly vacated, the Attorney General‘s petition for the revocation of the order summoning the grand jury was dismissed, and the District Attorney was directed to proceed forthwith with the grand jury investigation. From this decision the Attorney General now appeals to this Court. It may be added that following the hearing in the court below but before the announcement of its decision the District Attorney filed an amended petition for the summoning of a grand jury in which he now stated that he had acquired definite knowledge from his own investigations and from testimony given at the councilmanic investi-
Such being the facts, the question recurs: Was the Attorney General‘s discretionary power to supersede the District Attorney lawfully exercised by him or did he abuse that discretion? How did the situation reasonably appear to him as justifying the action which he took? He saw that a grave situation existed in which revelations of criminality on the part of some city employes and officials indicated the possibility, if not the likelihood, of a widespread misuse of public property, and faithlessness in the performance of public duties. He saw that thereby the confidence of the citizenry in the integrity, at least of those in charge of the department of city government in which such criminality had been shown to exist, was being dangerously undermined. He saw that during the year ensuing after the accident of April 26, 1949, no investigation had been made by the agencies of law enforcement as to the reason for the presence at that time and place of the city employe who was the victim of the accident and as to the mission on which he was engaged. He saw that even after the institution of the suit at law and the filing of the claim for workmen‘s compensation, when the newspapers and the public generally came to sense the seriousness of the situation, nothing was promptly done in the way of official investigation except by the City Solicitor, limited in her power, by the City Controller, similarly limited and with himself under attack, and by the City Council, a legislative body without power, of course, to enforce the criminal law. He saw that the continuing delay might result in the loss of evidence through departure or death
The proposition advanced on behalf of the District Attorney that supersedure of a local elected official by a State appointed officer is an infringement on the principle of home rule is wholly without merit. As already stated, the common law vests in the Attorney General that discretionary power. Moreover, the doctrine of home rule applies to the desirability of a municipality‘s having freedom in the formulation of its own local legislation,—not to the enforcement of the criminal law of the Commonwealth.
A counter-attack has been made upon the Attorney General‘s qualification to conduct the grand jury investigation in this case because of alleged personal interest in the matters to be investigated arising from the fact that he was counsel for the widow of the city employe killed in the accident and instituted on her
It would seem scarcely necessary to add to this opinion the admonition that, since the sole objective of the grand jury investigation is to ascertain whether the criminal law has been violated and to bring the guilty ones to justice, it should be kept free, as we are confident it will be,3 of personal rancors and, within its confines, of partisan exploitation.
The order of the court below is reversed. The supersession of the District Attorney by the Attorney General is hereby adjudged to have been a valid exercise of the Attorney General‘s discretion. The record is remanded with direction to grant the petition of the Attorney General for the revocation of the order of the court below of June 30, 1950, reconvening the June grand jury.
The question involved on this appeal is not whether there should be a grand jury investigation into the alleged criminal conduct of certain officials and employees of the City of Pittsburgh. As to that, there is no difference of opinion with respect either to the propriety or need for such a proceeding. The fundamental question presented by the record is whether the learned court below erred in concluding from the pleadings and the evidence that the inquisition to that end (already begun by the District Attorney of the County) should continue to be conducted by him and that the Attorney General‘s attempted supersedure of the District Attorney constituted an abuse of his discretion.
It is my opinion that there is no longer any legal warrant for voluntary action by the Attorney General in such regard even if the power ever existed which I firmly dispute. However, the majority of the court, relying upon what I take to be non-decisional expressions of opinion in several relatively recent cases, accord to the Attorney General common law power so to act: see Commonwealth ex rel. Minerd v. Margiotti, 325 Pa. 17, 188 A. 524, (1936), Dauphin County Grand Jury Investigation Proceedings (No. 1), 332 Pa. 289, 2 A. 2d 783, (1938), and Dauphin County Grand Jury Investigation Proceedings (No. 3), 332 Pa. 358, 2 A. 2d 809, (1938). Even a cursory reading of the opinions in those cases will readily disclose that no question as to common law power in the Attorney General to supersede a District Attorney of his own motion was present for decision. Indeed, the matter had never been passed upon at common law for the all-sufficient reason that elected prosecuting officers were unknown to its political institutions. Ever since the creation of the offices of Attorney General and Solicitor General in England several centuries ago, prosecuting attorneys
Inasmuch as this is the first time that the question of the Attorney General‘s asserted power to supersede a District Attorney has been squarely before this court for decision, I had thought that it would be examined and considered for what it truly is, viz., a matter of first impression as well as of first importance. But, a majority of the court see fit to enter an order of reversal which automatically will constitute a decision that the Attorney General does possess such power by virtue of the common law when in his judgment such action is necessary. I shall not, therefore, prolong this opinion by further discussion of the basic legal fallacy in the majority‘s action. However, it is not untimely to observe in passing, as did the learned court below, that “. . . the supersedure of a District Attorney by an Attorney General, in the exercise of his common law powers, is without precedent in the history of this Commonwealth.” And, to that, it may be added that
But, even if Commonwealth ex rel. Minerd and the Dauphin County Grand Jury (No. 1) and (No. 3) cases settled the law in this State that the Attorney General possessed common law power to supersede, of his own motion, an elected District Attorney, I submit that such power was completely extinguished by the
The common law rule of statutory construction that the repeal of an Act declaratory of the common law does not operate to extinguish private rights otherwise vested by the common law has never been extended in a single instance, so far as my research discloses, to revive in a public official a repealed statutorily-conferred power of office formerly derived from the common law. Indeed, the attitude of the law toward revival of prior law by a repeal of another law has been to restrict the rule of revival. For example, the common law rule that the repeal of a repealer revived the prior law was abrogated in England by statute a hundred years ago and many of the States of the Union have similar enactments: Endlich on Interpretation of Statutes, § 476, p. 679. With us, such legislative declaration is now embodied in Section 97 of the
On the basis of the foregoing, it is my opinion that there is not now any extant lawful authority in an Attorney General of Pennsylvania to supersede at his discretion a District Attorney of the Commonwealth. And, beyond that, I fail to see the slightest legal justification for this court‘s reversal of the learned court below on the merits assuming that the Attorney General still possesses power to supersede a District Attorney at his discretion.
In Dauphin County Grand Jury Investigation Proceedings (No. 3), supra, where the then Attorney General sought to supersede the District Attorney of Dauphin County in a grand jury investigation then pending in the criminal courts of that County, this court held it to be incumbent upon the Attorney General “to present to the [local] court his reasons for superseding the district attorney . . ., the court thereupon to determine the question whether the district attorney has been superseded by a valid exercise of the legal discretion vested in the Attorney General. . . .” The requirement, of course, contemplated that the reasons given be valid and substantial. And, the burden of proving their validity and substance necessarily rests upon the Attorney General from the very nature
In the present instance, except for the single reason first assigned by the Attorney General in support of his order of supersedure, to wit, that the District Attorney‘s petition for the reconvening of the June grand jury was defective, the principal matter urged by him, among the additional grounds which he later advanced as supporting his action, is his charge and innuendo that the District Attorney meant deliberately and wilfully to fail in the faithful discharge of his sworn duty. Plainly enough, the first reason was unsubstantial and the learned court below justifiably found it so to be. The petition was amendable (see Dauphin County Grand Jury Investigation Proceedings (No. 1), 332 Pa. 289, 2 A. 2d 783) and was actually amended upon leave of the court below. The Attorney General is in no position to complain of that. He had no vested private right in the continued maintenance of what he had asserted to be a defective petition. The other reason was wholly unsupported by any evidence and was left to rest entirely on the contention that because the District Attorney was a member of the same political party as some of the persons to be investigated, he would be recreant to the trust reposed in him by the electorate of the County. The learned court below found that reason to be invalid as does also the majority of this court because the “contention runs counter to the whole the-
The findings of the court below are ignored by the majority in plain disregard of a well-settled and time-honored rule of law that the findings of fact of a trial court, approved by a court en banc, have the weight of a jury‘s verdict and are conclusive on appeal if there is any evidence to support them. The only evidence this record lacks is what the Attorney General failed to produce as support for his charge of political bias and bad faith on the part of the District Attorney. Thus, by ignoring the lower court‘s competent findings, which are implicit, where not verbally detailed, in its comprehensive treatment of each of the reasons assigned by the Attorney General, the majority of this court usurp the province of the trial court and draw their own ultimate conclusion of fact that the Attorney General‘s supersedure of the District Attorney was a valid exercise of his discretion.
Naturally, there is no definitely fixed standard by which the exercise of a legal discretion can be measured for validity. Any determination of such a nature must necessarily depend upon a judicious review and consideration of all attendant relevant circumstances. The court below, which heard this matter at great length and painstakingly prepared and filed a thorough and well-considered adjudication, was fully qualified to make a just factual conclusion and, having done that, its work should not now be set aside except for some identifiable and reversible error which, so far as I can see, the majority opinion fails to point out. All the majority opinion does is to relate facts and circum-
In Dauphin County Grand Jury Investigation Proceedings (No. 3), supra, Mr. Justice STERN said for this court that “To him [i.e., the Attorney General], therefore, is peculiarly applicable the familiar doctrine that courts and all judicial and quasi-judicial officers must exercise discretionary powers upon the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary action” (Emphasis supplied). In the light of that pronouncement, is it not strange that “motivations” now become immaterial in the opinion of the majority? The Attorney General‘s charges impugning the honor and integrity of the District Attorney were found by the court below, and now by this court, not to have been sustained. What, then, is there left to support the majority‘s opinion that the Attorney General‘s order of supersedure was a proper exercise of his discretion? Only that official‘s bald assertion that the District Attorney had lost public confidence and would, therefore, be unable to conduct a thorough and effective investigation, an allegation which the court below rejected as not having been sus-
By the charge that the District Attorney, because of his political affiliations, will not perform his official duties faithfully (the Attorney General even avers in his replication that it would be “contrary to all normal experience to expect” him to indict City officials and employees), the Attorney General thereby gives utterance to a strange conception of official morality. He apparently does not understand that the innermost feeling of any decent elected public officer is that he but enjoys for the time a power reposed in him by the people to be exercised by him with an eye single to the public interest. In view of the Attorney General‘s flagrant charges, based on the imputation of bias and partiality in elected public officials because of their political affiliations, it is not amiss to interpolate at this point that two of the three judges of the unanimous court below are not members of the political party to which the District Attorney belongs.
Under the evidence in the case, the only party to this record, whose motives are under any stigma from possible partiality and bias for political purposes is the Attorney General himself by virtue of the very office he now occupies and the character of the proceeding here involved. Such was expressly recognized in Dauphin County Grand Jury Investigation Proceedings (No. 3), supra, where it was said that,—“The Attorney General is an appointee of the Governor and subject to dismissal by him. Under such circumstances ordinary sentiments and impulses would necessarily tend
The result of this court‘s decision in Dauphin County Grand Jury Investigation Proceedings (No. 3), supra, was ultimately to bar the Attorney General from exercising a right to supersede the local District Attorney (even though a statute then empowered him to do so) because of his supposed political interest and bias due to the position he then occupied. Here, the motives of the Attorney General are excluded by this court from any consideration although I have no doubt that the learned court below, faithful in its obedience to the reported pronouncements of this court, took such matters into account along with all the other facts and circumstances in concluding that the Attorney General‘s supersedure of the District Attorney constituted an abuse of discretion.
On the basis of the record in this case, there is no justifiable ground for inferring that the District Attorney of Allegheny County would not conduct the grand jury investigation in a thorough, efficient and impartial manner without fear of or favor to anyone. Such is the faith shown in him by the adjudication of the learned court below.
I would affirm on that adjudication.
DISSENTING OPINION BY MR. JUSTICE LADNER:
I cannot agree with the majority opinion in its holding that the court below erred and should be re-
In a case such as this much reliance ought to be placed on the good judgment of the court below, because it is in a far better position to know the calibre, ability and sincerity of the district attorney, as well as the relevant surrounding circumstances of the case, than we, who have before us only the cold record. The court below has, in its opinion, carefully considered, analyzed, and I think satisfactorily disposed of all the reasons advanced by the learned attorney general in justification of his order of supersession.
I would therefore affirm the decision appealed from.