Perot's Appeal

86 Pa. 335 | Pa. | 1878

Chief Justice Agnew

delivered the opinion of the court,

The question in this case is a very plain and simple one. What is the interpretation to be given to the penultimate clause of the seventh section of the fifth article of the constitution of 1873, relating to the pay of the prothonotaries ? The whole section reads thus: “ For Philadelphia, there shall be one prothonotary’s office, and one prothonotary for all said courts, to' be appointed by the judges of said courts, and to hold office for three years, subject to removal by a majority of the said judges; the said prothonotary shall appoint such assistants as may be necessary and authorized by said courts; and he and his assistants shall receive fixed salaries, to be determined by law and paid by said county; all fees collected in said office, except -such as may be by law due to the Commonwealth, shall be paid by the prothonotary into the county treasury. Each court shall have its separate dqckets, except the judgment docket, which shall contain the judgments and liens of all the said courts, as is or may be directed by law.” The punctuation I have compared with three copies of the constitution, the most accurate known to me, and it will be seen that the penultimate clause as to fees is a part of the preceding sentence, and closes with a period. The question is, is this clause to be viewed as a distinct, separate and independent provision, standing alone in its operation, and not affected by the preceding part of the same sentence? To state the proposition is to discover its fallacy. Clearly its interpretation is to be gathered from its place, its preceding context, its intent, and its relation to other parts of the constitution. It follows immediately in close connection, and dislocated by no period, the clause that “ he (the prothonotary) and his assistants shall receive fixed salaries, to be determined by law and paid by the said county.” Thus the constitution itself refers the matter of the fixed salary to the legislature. As a consequence, the second section of the schedule is operative, for until the legislature fix the salary, the law of compensation, to wit, his right to the legal fees, continues; for, until that event, neither the law nor his right is' inconsistent with the terms of the constitution. This second section reads thus: “All laws in force in this Commonwealth at the time of the adoption of this constitution, not inconsistent therewith, and all rights, actions, prosecutions and contracts shall continue, as if this constitution had not been adopted.” This section has been considered heretofore. See Lehigh Iron Co. Lower Macungie Township, 31 P. F. Smith 482, and Watson v. C. & D. River Railroad Co., 2 Norris 254. Thus both the law and the right to the fees remain. Another significant fact is found in the context and the clause itself. The salary, when fixed, must be paid by the county; so the fees are to be paid t& the county. The intent is manifest. The schedule, which is the transition way from the old to the new form of government, provides for the status quo until the laws necessary to give effect to the new, shall be passed by'the legislature; and, to prevent escape, enjoins the duty of passing such laws, in the thirty-first section, thus: “ The General Assembly, at its first session, or as soon as may be, after the adoption of this constitution, shall pass such laws as may be necessary to carry the same into full force and effect.” This duty, demanded by the voice of the people themselves, is also enforced by the oath of office. The thought of the section is therefore manifest. Legislation is provided for to fix the salaries, and then the county must pay them; until that time, the schedule will maintain the status quo ; and then, as the consideration for the payment of the salaries by the county, the fees of office shall be paid to the county. Thus the two clauses, having their natural relation in the -same sentence, harmonize with each other. On the other hand, if we disjoint the sentence, insert a period where there is none, and treat the clause as to the fees as independent, absolute and immediate, so as to carry the fees of office into the treasury at once, we do the public, as well as the officer, a great wrong. Then we have an office, created by the constitution, dependent on the mere voluntary service of some one who will accept it without fee or reward, until the salary be fixed by a law, become responsible to all his assistants for their compensation, incur the risks of, and liability for, their errors, and give a bond, with sureties in a large sum, to be answerable for the performance of the duties and the mishaps of the office. Did the convention intend that the public should be imperilled by the want of officers, or the officers to be unpaid for services, until the legislature might act ? Clearly not; the consequences are too grave. Hence they coupled the two clauses, that they might run together and have a plain meaning, intending to provide for the meanwhile in the schedule, by preserving the status quo until the legislature should perform the duty enjoined in the thirty-first section of the schedule.

But it is argued that the legislature may fail to pass a law fixing the salaries, and thus suffer the evil to continue, which the provision for payment of fees into the county treasury was intended to remedy. True, the time may be delayed, but this was a fact which was in view when the convention committed the subject to the legislature ; and the argument supposes that the members of that body are void of conscience and willing to violate their oaths of office. The constitution cannot be administered on any such supposition. We are bound to concede honesty of purpose to them, as we would ask it to be awarded to ourselves. But the supposition is contradicted by the fact, for we find that the Assembly passed the requisite law on the 31st day of March 1876, Pamph. L. 13. Now, when we remember the immense number of legislative acts necessary to adjust the affairs of the state to the terms of the new constitution, we cannot suppose any violation of duty m tins respect. In this connection complaint is made of the eighteenth section, which postpones the operation of the act until the terms of the then incumbents of county offices should expire. We must believe the legislature had good reasons for this, some of which we can easily understand. The expiration of existing terms, and the incoming of new officers, would enable existing laws to have their well-known effect, and their accounts with the state could be easily adjusted. But break off in the middle of a term, and the old and the new laws must have a legal and proper adjustment, both as to the accounts for fees and the pro rata of salaries. This would require some legislation, and even then complications might arise, with their offspring of litigations. But with the expiration of the term, the old law would expire, and with the beginning of the new term, the new system would arise, and the old and new would be harmonized.

It is also said the 18th section is unconstitutional. But this is answered by our interpretation of the clause as to fees; for if they are not to go into the county treasury until the salary is fixed, the law and the constitution are in harmony. They would be in disorder only, if we give the clause an immediate, independent and absolute interpretation.

The 29th section of the schedule, as to the compensation of county officers in office at the adoption of the constitution, has no relation to the case before us. Mr. Mann has been since appointed, and his ease is necessarily governed by the section under which he was appointed — 7th section, 5th article.

So the 5th section of the 14th article, relating to county officers, does not touch this case. It is the general provision for the compensation of county officers, while the case before us comes specially under the 7th section of the 5th article, already noticed. But the 5th section of the 14th article is in pari materia, and confirms conclusively the interpretation we have given to the 7th section of the 5th article. Thus it says: “ The compensation of county officers shall he regulated hy law, and all county officers who are, or may be salaried, shall pay all fees, which they may be authorized to receive, into the treasury of the county or state, as may be directed by law. In counties containing over 150,000 inhabitants, all county officers shall be paid by salary, and the salary of any such officer and his clerks, heretofore paid by fees, shall not exceed the aggregate amount of fees earned during his term and collected by or for him.” Thus the former part of the section so connects the salary arid the fees, as to show that the regulation of the salary must precede the payment of the fees into the toeasury. The latter part makes payment by salary compulsory' in counties having a population over 150,000. Upon the census of 1870, this would. apply to Allegheny, Luzerne and Philadelphia, and was approximated by Lancaster and Schuylkill.

Thus, a full consideration of section 7th, article 5th of the new constitution, leads to a clear result. The place of the clause as to fees, its context and connection, and the reason, intent and spirit of the provision, all unite in condemning, as illogical and unreasonable, the view that this clause must be dislocated from its place and connection, and treated as an independent and absolute provision for the immediate payment of the fees of the office into the county treasury; and this conclusion derives force from its relation to other parts of the constitution and the schedule.

Decree affirmed, with costs to be paid by the - appellants, and the bill of the plaintiffs finally dismissed.