Smith v. Gallagher

but pletely revoke the second majority hold, as the will, to be only only construed to revoke with it and together parts those inconsistent second will which were with the third will.

I would therefore hold both the second will third con- probate will should be admitted to strued forth. as above set

Mr. Justice joins dissenting opinion. O’Brien Gallagher, Appellant.

Smith v.

Leonard Petition.

White v. Gold.

Crumlish Petition. J., 1962. Before C. Argued September 12, Bell, and Keim, O’Brien Musmanno, Jones, Cohen, Eagen, JJ. for Berger, City Solicitor, appellants.

David White, propria Wilson and for persona, W. F. intervening Jr., appellants. Griffin, Eastings for Herbert A. with him O. Fogel, David Maxwell, support appel- Republican Alliance, intervenor, lants. for appellee.

Louis Lipschitz, for Thomas D. with him Herbert 8. McBride, Levin, intervenor, Committee, Democratic Executive County support appellee. appellant. for David Berger, City Solicitor, Griffin, F. Hastings Robert M. Landis, appellee, Jr. persona. propria White, petitioner,

W. Wilson Edwin P. him Special James Rome, Counsel, with G. in District Grumlish, propria persona, Jr., Attorney, for petitioner.

F. him Hastings White, with W. Wilson Griffin, Jr., propria respondents. persona, by Opinion Ms. October Justice Musmanno, 1962: all

Four cases in this appeal they are involved to do disposed opinion. one One has will an from Pleas No. 6 appeal of Common in- an from Philadelphia appeal another is an County, Quarter Ses- rule order of the Court of terlocutory application a third is an Philadelphia sions County, Court for a writ of to this Esq., W. Wilson White, Com- mandamus directed to Court prohibition application mon Pleas No. and the fourth is another James jurisdiction presented Court’s original Philadelphia district attorney C. Crumlish, Jr., prohibition directed seeking writ County, Eugene Esq. Y. and W. Wilson White, Alessandboni ac- are on certain proceedings predicated

All these Quarter Court of of Phila- tions taken Sessions running 1962 and delphia County beginning March, into 1962. Those actions lack September, legality An “Special to stand. asserted cannot be allowed for which there is no war- ordered, was Jury” Grand appointed “Special an law; attorney was rant which does not exist; an office investi- Prosecutor,” subject directed without limitation as to gation to the most contrary time, pre- fundamental matter in the administration precision law; cepts duly elected people of officer, by the constitutional displaced from County, office, with- process; employed, personnel out due additional was supplemental quarters were were new facilities rented, per- expense taxpayers all at the of the when obtained, contemplated quarters ac- and facilities for the sonnel, already tion were in existence. petition

The facts On March follow. 22, 1962, judges Quarter Ses- addressed to the of the Court of City County Philadel- sions of the of Peace of the signed phia, “citizens, Robert L. Leonard and other taxpayers Philadelphia, filed of was residents” widespread quarter averring with the clerk of sessions, City government Phil- of violations of in the of the law adelphia attorney, C. Crum- James that the district cope unwilling unable or to with situ- was lish, Jr., petition grand jury prayed be in- ation. The that the investigate de- therein structed to into the matters scribed. petition Judge of came into the hands Guerin, (Bail

assigned Quarter to Sessions Court No. 4 Ar- raignment Court), charged con- court was which ducting coming before all miscellaneous business Philadelphia County Criminal of for the month Courts1 1962. March, pursuant Arti- It to noted the outset that to at Pennsylvania Board §8 Constitution, cle Y, up Judges County, 21 made succeeding judges, for month a court details each judges) pleas (consisting of three to the crimi- common supervise, all direct and handle to conduct, nal court pertaining convenes which to the matters Quarter Sessions known as Hall, in Room desig- of Common Pleas No. 7 1. Court was No. Court duty for the month of March. Within nated Judge decided that it was President itself, 7No. 1 convenience, phrase “Criminal is sometimes Courts” For Oyer long Terminer, formal title: Courts of instead used Delivery. Peace and General Jail Sessions Quarter preside be- in Room weeks

Sloane would Judge ginning March 5th and March 12th and that preside beginning March would for the weeks Gleeson n 19thand pre- Judge March 26th. Thus Gleeson siding termi- in Room 653 from March 19th until nation of March term. explained,

For Robert a reason never (hereinafter Leonard et al. be referred presented petition), Judge Gleeson Leonard Quarter but went Sessions Guerin No. division as above stated, court, It court. administers all miscellaneous business language is no construction of obvious that liberal regarded summoning grand jury a can be of a as odds item. “Miscellaneous” connotes miscellaneous heterogene- scraps, and ends of affairs: remnants and promiscuous. is ous In of what the classification important, grand jury investigation be not a is scraps heterogeneous promiscuous found in the a court’s activities. Judge hear- March On ordered 30, Guerin 1962, April

ing petition on the in Courtroom 646 for not how it came about The record does disclose 1962. Judge that as finished his term of service Guerin2 petition criminal Leonard not revert to court the did logical depository, Quarter Sessions Court No. its Judge but came into the hands of instead Alessan- Judge No. of Court of Common President Pleas droni, Judge in the Miscellane- 5 who now'succeeded Guerin April. (Court ous Division No. month 4) incongruities history Among no in the of this case, query Judge light why the inevitable on shed is perused petition, once he Leonard Alessandroni, thoroughly being conversant with the division and, responsibilities in the criminal did duties court, Judge Guerin, suggested that able not and conscientious It is purpose in judge, the actions ulterior here had discussed. Judge not himself immediately petition refer who was instruct ready Griffiths, April. in Court No. 1 month during entire On District of Phila- April Attorney 13, 1962, peti- an to the Leonard delphia filed answer County tion in he denied that he unable or unwill- which was He petition. to meet the outlined ing situation made factual of his asser- support also averments per- tion capable that he had been and was fully the duties of his office. forming properly On April petition when the Leonard 27, 1962, Fogel, argued Judge before Alessandroni, initi- Republican Alliance which had representing ated the Leonard that Judge stated petition, Alessan- jurisdiction would over the droni Quarter Sessions the event his term the Court of expired before it acted recommended and he upon, that enter into concord with Judge Alessandroni judges grand other to obtain authority charge any convened for of con- might purpose stated ducting investigation. Alessandroni fol- that could not be done. The was as colloquy Fogel: lows: “Mr. Your Honor point, sir, Your come to determination in the matter may when Quar- Honor not then be in Court of might sitting and not being juris- ter the Court that has Sessions, I diction over the Grand would like to make sure Jury, no Your objections interposed there would be if determine that special Honor should instructions should Your Honor jurisdiction and that have given be special a to convene Grand instruct- power Jury so Mr. : admire for a Fogel, you ed. raising I Court kind. I of that don’t However, see how that question he waived.”3 can “I think commented: it Fogel

Mr. was before done point.” to that as And then Judge Judge Alexander 3 supplied unless otherwise italics All indicated. definitively in the following language,

Alessandroni, convening grand took himself out of possibility some on maybe : Even if jury: they agreed “The a Grand other words, other constitutional basis —in sum- have to be summoned would Jury Court, would term. I moned jurisdiction my within the However, Sessions Quarter Judge. still have think I don’t term Monday May. ends my first ” extend beyond can my jurisdiction sessions quarter term as Judge AlessandronEs first on as he himself stated it judge ended, wonld, com- court returned to the and he Monday May, had he court mon Before the criminal pleas. quitting petition Leonard decision on the made no definitive in the mis- on pass and he did not it to his successor had Judge cellaneous branch of the court, Guerin effort did he make any it to him. Nor bequeathed Doty now Judge attention of who call to the ready Court No. 1 and stood in Criminal who presiding required which on all matters charge way accustomed The month of wended its May action. in due June calendar and then came through all this time during into but July, time melted unmen- neglected ignored, Leonard tioned. had charge Judge

As indicated, Griffiths Doty followed by Judge he was jury April, grand Judge was succeeded turn, May. Judge Doty, Judge month of June when for the Ull- L'llman Sporkin as- his assignment completed man had It would of the grand jury July. command sumed refer peti- matter the Leonard simple been a question to determine the judges these tion to investigation. grand 22nd to on the July nothing happened March From in the meantime the cobwebs petition, Leonard inevitable film of their obliteration formed inaction form over near- substance. Undue of time passage ly works always in the ascertainment adversely ripe truth. Where there is truth is a any controversy, maturity fruit which must be After timely picked. what in. passes, disintegration sets Memory fades, guess- it often worse, enters into the shadowland loss focus and even unconscious distortion. work, In muta- translocations and other addition, deaths, repro- tions also make holes the fabric intended to duce in what has occurred in fact. testimony

Of but some inevitable delays law are course, offer this was not the case here. The record does for the inert to the reason slightest explanation as until March petition Leonard from lodgment for 1962. The July only possible explanation re- judicial adherence consistent with inertness, toas doubt judge grave is that was sponsibility, investigation. whether there should be grand Quarter on Finally, July heading under 11th, Miscellaneous March Sessions Court, Session, 1962, he what Docket ordered Judge No. 279, Alessandroni an- Grand But even “Special called a Jury.” then, July intervened. The procrastination other protracted Judge Sporkin, presidency under grand jury, but to take ready prepared action, session, ig- Common No. 5 of Court of Pleas judge the learned He court. machinery the established nored Sporkin. in the Judge Judge over passed Sporkin, Hagan by Judge was followed jury courtroom, grand business for grand jury conduct all who was was indifferent Judge Alessandroni August. month Hagan over which he pre- Judge spe- equally, standing which, sided that month. throughout cial instructions “Special ordered a Grand Alessandroni September on 5th five convened which was to be Jury” Leonard had his come into months after 562 special ordering

hands. In a begin September recognize in he also declined to Judge grand presiding in the who was Alexander courtroom for that entire month. emphasize is all related not as but to

This censure, procedure regular what can occur when the forms and government judges on of are not embark and followed, independent sailing ships of in without sails ventures, power engines authority, using devoid of constitutional employing compass lacking decisional direction. judges jurists of in All mentioned this case are Judge experience highest probity. of wide particularly, granted Leonard who Alessandroni, jurist scholarly petition, ais veteran of attainments Orderly questioned.4 judicial integrity is not whose procedure laying in down of rules the Courts and the guidance kind, in for of future conduct matters this require which the narrative and observations however, may and which follow. have been made happened peti- history the Leonard what background disposing of only in is not as tion needed appeal re- on but it serves also the issues here of the manner in which the business minder of the Philadelphia con- not be should Criminal Courts Philadelphia Judges Why the Board of ducted. delays County recounted, the inordinate allowed thwarting they entangling them- of the schedules up in- criminal we are not courts, selves had set of coordination and lack inertia, But that formed. among judges frank disclosure which absence proceeding no entire bestows manifested been adjudication 6, in in tlie Pleas No. its of Common The Court “Judge Gallagher no tes- case, said: v. needs Alessandkoni Smith concerning legal love for law and the tradi- us Ais timonial from probity and need not We vouch his he cherishes. tions affectionately warmly regard integrity. him as the dean We Philadelphia judiciary.” criminal credit on the administration of whole plainly on written too courts gray Hall. walls ancient question or- as to whether

We now come to the jury, July summoning grand carried der 11, 1962, imprimatur quarter the court of sessions. July. sitting court Alessandroni Monday expired having term the first His there post regular May, President as he had returned to his Judge In fact, of Common Pleas No. 5. backing in which order of the sheet of the reverse side print- investigation jury grand bears he called a designation: 5 in op ed Pleas No. “Court Common County op Philadelphia.” por court in criminal The fact that he had shed his robe acting disqualify on from not of him would itself pleas judge subjects. com- common criminal When a infrequently pletes not in criminal court it his term happens matters attend to unfinished that he must dispose re- may has he of even after these he and must pleas However, court status.5 verted to his common investigation not ordering grand jury could of a heading possibly qualify busi- unfinished under the petition not Leonard was that the ness. We have seen presented Judge instance, in first Alessandroni April he stated 27th he how on have observed we actually jury grand unless he was could not summon could have noted that he and we criminal court, judge petition passed succeeded who on to it from his had inherited court as he in criminal him predecessor. being sought was in the Leonard

What was competence Judge in- if, alone, not AlessandronPs competence at all. Since his within it was deed, already jury as stated, could grand not, 382. 332 Pa. Shenker v. Harr, any regarded view of unfinished matter, sitting business and since not Alessandroni July, signed in criminal court in on order he day binding eleventh month no more ef- sitting than if fect he were Delaware. judge assigned

A over must be the court purports preside. Judge effect he Alessandroni grand jury he took commandeered courtroom when possession petition, as- ju- the Leonard he was but signed to the room. If could assume he assigned grand when not over risdiction, thereto, judge could then in the criminal court matters, appli- jurisdiction. petitions take similar If or other desig- judicial go judge cations for do not action to the subject petition but nated to handle the matter of the may, in billiard-ball the rounds make fashion, haphazardly striking jurisdiction missing courts, disposition until the final destination and becomes potential matter of then the mists of chaos chance, constantly Penn- hover over the will courthouse. dissipating specifically sylvania Constitution at aimed justice workshop through op- of such mists the the judges says shall of which eration Article that V, §8, oyer terminer “to hold the courts of be detailed quarter “in the courts of sessions” such manner may by laxo.” directed as be special if

Even the call of could justified not it did that been follow law, Ales- preside pointed judge to over it. was the As sandroni opinion concurring in his Justice Cohen out Appeal, authority 407 Pa. 366, the Hamilton 373, grand jury, charge in a situation like the one at bar, approval through assign- only the come could grand jury judges judge individual and the sit- ment approval during ting involved. the months No such suggested remotely in the case before us. even Avas confusion, the here that much of It should stated re- not did case complications complexities caused judge sult from the error of but any single Common of the of the Court strange composition inte- one Instead of Philadelphia Pleas of County. court over president judge all, court with a grated comprising up separate is made of seven each courts, Each own. president three with a its judges judge of au- exercises a certain amount these seven courts much from as separates it the other tonomy six, not if are in another who county. Judges were all toward president inferiority feel a certain judges president president judges judges seven so free of the lack be led because may astray simply should characterize and candid discussion which place entire bench of the This is county. Philadelphia courts of reorganization discuss constitutional hoped proper but it is to be County, individual action will be taken to dissolve seven one them into Philadelphia amalgamate courts of who with one pleas, president judge, court of common various assign authority judges will have busi- the court’s schedule departments work ef- or collision of overlapping to remove all ness so as a homogeneous, the end creating fort and endeavor, court. harmonious-working close-knit, adminis- president judge been one having Had there crim- assignable all to the judges direction over trative Leonard when the County courts inal con- he would have after decided, filed, judges, body whole course, sultation, upon call General should he whether April under the Act of Commonwealth, Code of P. L. (Administrative L. 177 P. “When which inter alia: §297), provides, P.S. §907, in the district having jurisdiction judge, president the before proceedings, court of any oyer criminal any general jail delivery, quarter sessions, and or terminer, request Attorney Gen- in this shall the Commonwealth, judg- setting writing, to do eral forth in his so, that, proper for the case one Commonwealth’s ment, is a the Attorney hereby the authorized General is intervention, attorney empowered special employ and to retain and properly attorneys, may necessary, to as he deem represent proceedings, and the Commonwealth such investigate prosecute alleged charges, to offend- and the against Any attorney, em- and ers retained law. so supersede attorney ployed, shall district county may shall or cases which the case arise, investigate, bring prepare, to or cases trial the case may assigned.” to he which be single president judge coordinating lack of a The Philadelphia suspend the did not district, however, applicability quoted The Act. up duty on to take still devolved Alessandroni judges question other of the court the Avith presented under circumstances whether, him, requested supersede General should attorney. considering defini- district Instead of this procedure, Judge his own tive acted on Alessandroni displaced attorney. A dis- district volition partial placement only even if character, temporary, a serious and solemn matter. learned The judge a casualness amounted treated with al- petitioners charged to unconcern. had most attorney misconduct Avith and the district at- district torney declaring had denied such under misconduct, steps legal vigor- necessary had “taken he oath prosecute proven investigate any ously matter and Avrongdoers.” machinery “that He asserted the usual prosecution operat- investigation and of crimes is vigorously.” efficiently ing If these assertions represented actually there could fact, not be need by Judge ordered action for the Alessandroni. the moved attorney district

On the April peti- Leonard the to dismiss quarter court sessions establish “failed to petitioners the had because tion, applica- from the suffer public interest would and procedures forms ordinary tion pursuit emergency an that there of law or exists dismay or terror causing the social shaking fabric, se- public demoralization or the among citizens, curity.” offi- an made

These were assertions substance dismissing summarily of the court. Instead of cer inquiry, door of opened the should have judge them, no effort he made window; did raise a but he not even whether the averments bilaterally ascertain dismiss motion to district his answer attorney strokes fact or not. With a few represented writ- of the whole serious situation disposed he pen motion dismiss the answer accordingly “We ing: ad- had not pen Since his further comment.” without averments, attorney’s district all to the dressed itself at superfluous language. the “further” was in refusing clear that abundantly Of it is course, learned answer, attorney’s consider district judi- exercise arbitrary himself an permitted judge pro- with aloofness he treated cial When power. dis- his he abused (supra), the Act of 1929 visions “Special Prosecutor,” appointed When he cretion. making because he was impossible attempted he consider office. We will phantom to a appointment take “Special Prosecutor,” matter of later the whether namely, in the case, main issue now the up it called summoning what warranted court was Jury.” “Special Grand one opinion did not cite his judge

The learned decision to one point authority, one quote statute, direct of a him to summoning authorized at A be made special clarification must grand jury.6 con- Special Grand meaning Jury once as tbe because from a Grand tradistinguished Regular Jury, been and almost inexcusably the terms confusedly one A Special Jury used Grand interchangeably. cer- into investigate specially that is chosen to specially It tain then make recommendations. conditions, Jury A Grand purpose Regular has no other than this. is grand jury) it called a usually simply is (although of court convened the normal course one which is find to receive and accusations and complaints business ought indictment are a trial bills of where satisfied they availa- had. a is also grand to be Such jury, course, under investigations for the purpose conducting ble Philadelphia court. In from the special instructions first is assembled the regular grand jury a County throughout year. of each month Monday and a Special Jury between a Grand The confusion special investigation a conducting Grand Regular Jury un- melange a produced terminological which, has contributed. Lamentably, even judges fortunately, Grand phrase “Special Reports, even in the State has used when the writer occasionally really is Jury” in- special a Grand Regular Jury conducting in mind a vestigation. for special grand no the law provision

There is The Act of Philadelphia County. 13, March there (17 §472) specifies P.S. P. L. 420, §2 Quarter sessions Sessions monthly be shall 2 Section said County. reads: “The Philadelphia the commencement term, before of each shall, courts issue a venire, summon- established hereby for said residents city twenty-four county, ing Philadelphia County 6 Jury Investigation Grand. reference pro- unauthoritative. That Case, case involved Pa. grand regular which, jury, incidentally, posed by this Court. prohibited serve as grand or jurors; and one more venires or summoning petit shall be issued before jurors, said be during term; petit number of so jurors, and the deter- summoned, time are to to be they serve, mined said when said or shall court, venire venires be ordered.”

It will there be noted here that while particularly may more than one venire of summoned petit jurors given month, summoning grand jurors limited, to one venire per month. If the action of the in- lower court were to be it upheld would mean an vitation to special if one chaos, for, judge can issue a so can venire, other nine every With judge. eight judges continually in the sitting criminal courts would not take much visualization picture the turmoil and engulf disorder would which the courthouse with a jurors large population grand in- investigating subject every might pique terest individual judges. And if in every judge Philadelphia. County special what may issue venire, prevent would the individual judges throughout from State doing (There likewise? prius are 197 nisi judges in Pennsylvania.)

On August Council Philadel- 16, 1962, City of phia, accepting Judge AlessandeonFs orders bind- as on ing and the ordi- it, enacted, Mayor approved, nance appropriating f112,000 (with appro- more to be priated to meet later) expenses of the ordered grand jury investigation.

On 21st August Beatrice M. Smith, taxpayer through her Philadelphia, attorney Louis Lipschitz, in complaint filed a in Esq., the Court Com- equity, Quarter mon and of the Pleas Sessions Court of Phila- A. delphia County against Francis Di- Lalley, Finance Alexander rector ; Hemphill, Controller; and P. Philip all of the Poorman, Treasurer, City Philadelphia,7 7 Philadelphia Charter, §§6-106; Home Buie 6-400. expending the court restrain them from

praying above any Council moneys appropriated by City complaint ordering indicated because, asserted, spe- of a special grand and the of a appointment cial prosecutor law. contrary

On Spe- 29th W. Wilson August the named White, writ cial Prosecutor, petitioned this Court to issue a prohibition or mandamus the Court ordering Common Pleas No. which now had before M. suit Beatrice consideration the filed equity to cease consideration of named suit Smith, or, transfer alternative, Judge the case to Alessan- on Argument presented petition droni. City Solicitor Attorney White Berger, special Lipschitz before Justice in night sitting Jones session Wilkes-Barre. On 30th the August was denied.

On Court Common Pleas No. August 30th, Kelley Judges made Gold up President argument applica- heard on Miss Smith’s Blanc tion enumer- injunction against Philadelphia’s for an ated fiscal officers.

On No. September Common Pleas 5th, filed adjudication stating the Smith action its special appoint- orders convening Prosecutor law Special contrary were ing enjoining null It therefore and void.8 entered a decree from connection expending the defendants sums investigation. special grand jury ordered with the Berger, David Solicitor Philadelphia, on matters to a definitive decision in order obtain of an City filed behalf Philadelphia, issue, Court from the this decree entered to appeal 8 Judge his found that ArtessANDBorri within was The Court July issuing jurisdiction order of order 11th, but finding illegal. Court reverses first affirms This itself second. Alli- Republican Court of Common No. 6. The Pleas purported and the ance, represented by Attorney Fogel, assist- and his Special W. Wilson Prosecutor, White, in- F. ant, representing themselves, Hastings Griffin, County tervened as The Democratic party appellants. represented Executive Committee Philadelphia, Thomas Herbert Levin Former Justice Attorney S. granted Court petitioned for, D. McBride, argu- oral and make permission leave file briefs to, in the ment, appeal. Phila- September

On the District 6th, special for his James C. having delphia, Crumlish, Jr., Edwin filed in this P. counsel, Attorney Rome, directed petition that we issue a writ praying from Wilson White Judge prohibit W. Alessandroni order of pursuant Prosecutor serving Special appointment of 18th. July Common Pleas No. 6 appeal

The from Court of prohibition on the for a argument writ ap- intervening were heard on 12th.9 The September Common Court of pellants attacked the decision of jurisdiction No. 6 on Pleas first ground that Miss Smith’s argued then on the merits. They col- pleas action in of common constituted a the court equal juris- on decision of a court of lateral attack could not be sustained. diction and therefore action le- do not find that Miss Smith’s lacked We Beatrice Smith had a substantial direct, gal vitality. controversy. purpose in the subject interest part to determine whether moneys, her lawsuit was used from she had should be paid, taxes which came which she claimed in fact operation was, support argument appeal (to day, was also heard on an the same On Atjessandboni later) restrain from an order discussed he hearing conducting from ing Council Hastings qualifications Griffin, Jr., as of F. inquiring into the Special Prosecutor. Assistant

572 and in proce not legal. precedent There is for a law, in le dure the court of common pleas question gality quarter an order from the court of issuing Pa. In Moskowitz’s (cid:127)sessions. Registration Case, 329 183, Registration Commission struck off its Moskowitz registry the name of David because on imposed of a sentence of disfranchisement pro him in the court of quarter sessions. Moskowitz tested common pleas Regis court this action of the tration that sentence contending Commission, the court of it quarter illegal sessions was because he expiration imposed after the of the term at which been had convicted. This Court sustained position, his mere declaring controverted sentence was a Court to attack in nullity therefore, subject and, any passing rights of Moskowitz involved upon authority judgment sentence: “Such a is entitled to no subject impeachment or and is in collateral respect, pur time it rights at' one whose proceedings any In ports Camp affect. v. 10 Watts Wood, peace held judgment justice that a void introduced subse rights could not be to establish over the same quent proceeding property. And, said: 253 Pa. Court Simpson’s Estate, 217, 225, ‘ usurpation jurisdiction exist, does “When the are then of the tribunal all the acts takes its-place, so ‘and of none treated effect,’ may void . . no.jurisdiction . Where there is collateral proceeding con pronounce aúthority judgment, there no so entered is so but in.form judgment sequently authority ho has substance, force, similitude, ' "... 10 Borough 10 Hall, 341; v. Irwin 291 Pa. Commonwealth See also Huntingdon District, 135; School v. North District 374 Pa.

School June 16, 1836, 545; §13(V.), Act of P. Wall, v. Pa. L. 123 Wall 2 8 . §2 P.S. It has been the action argued Common Pleas No. 6 was indis- ineffective, lacking parties. The record not substantiate pensable would and particu- this It will be argument. noted, however, com- that court of of the action larly, regardless mon this under Bench pleas, King’s powers, its Court, issuing to all orders possesses power pass upon from court Chief Justice any Commonwealth. in the case of v. Commonwealth Onda, Horace Stern, Pa. ago 376 declared: “More than centuries 405, two XIII Court of Supreme section of the Act creating 1 L. (Act this Commonwealth Sm. May 22, 1722, provided justice that the court ‘minister 131) should pow- to all and exercise the persons, jurisdictions ers all and hereby granted concerning singular all premises according law, fully amply, purposes intents and as the Justices of the whatsoever, Court of Common and Exchequer, King’s Bench, Pleas, do.’ Thus at or or can may Westminster, them, inferior tribunals power over superintendency its became court from the time of very vested this Blacks tone explained creation.” Sir William that in- Court of “keeps of the Bench all jurisdiction King’s within the bounds of their author- jurisdictions ferior (Book 4) ch. ity.” 3, never there was argued

It has also been since from order appeal Judge a direct Alessandroni’s subject order is not the legal 11th that that is July law. appraisal incorrect This is an of attack. inception in its illegal does gain An order which from. appealed because is not validity legality strike down power any illegal has Court This of antecedents. Justice regardless a lower act of quoted for a unanimous speaking Court, Brown, 222 v. Pa. Hartman, in Schmuck approval Pa. judicial v. 520: “The au Place, Gosline from to the extends review and corree- court of this thority except tion of all of all inferior proceedings courts, where expressly such review is excluded statute, all accordance with the issue and we constitution; may legal sorts and use and sorts of process, adopt all super- forms that are effect give necessary visory authority.”

But appellants the intervening say Ales- authority did have jurisdiction and sandroni special to order a appoint special grand sub- prosecutor. arguments oral and written mitted in lack conviction behalf this thesis, however, speak or even They vaguely of inherent persuasion. common and traditional jurisdiction law authority, F. of Attorneys One sentence the brief powers. and W. Wilson illustrates Hastings Griffin White “He [Judge of the nebulosity contention, namely, Ales- lawa convened not special a grand jury, sandroni] not but an agency investigating agency, enforcement proce- of parcel and the usual enforcement part law dures statute to Attorney General assigned a unusual judicial the District but highly power on the inherent of a court procedure bottomed (Em- situation.” specialized in a highly to intercede in original). phasis glittering which a argument

This is an sails sea solid emerges not one from which there generalities, and as- on can stand which one jurisprudence rock palpable recognizable a rule, principle, tangible sert in law. unlimited judges

It is a mistake to assume specialized situation.” highly “intercede to power inter- adjudicate to to A function is judge’s upon to pass questions presented duty his cede, procedure and with established not, him accordance to issue edicts initiative, orders, his volition own on his estimate personal own decrees “bottomed” im- situation”. specialized juridically a “highly on this mortal Chief Justice Marshall spoke pointedly contradis- subject when he said: “Judicial power, from no power of the has existence. tinguished laws, can Courts are the mere of the instruments law, discre- will When are said exercise a nothing. they be it a discretion to legal is mere tion, discretion, law; exercised the course discerning prescribed by that is and when is the discerned, duty power follow it. Judicial is never exercised for al- effect the will of purpose of giving Judge; for the effect to the will of the ways purpose giving in other law.” or, the will Legislature; words, (Osborn v. U. S. 9 Wheaton 6 L. Ed. Bank, 738, 866, 204.) appellants

The contention of the intervening splin- authorita- ters stone wall these wise and against greatest exponent words uttered law tive Our speaking of our own history country. Court, said in Justice through scholarly Mitchell, v. of Commonwealth Pa. 553: “No Smith, man, case accomplishment of a great even can good, himself and least to set above the permitted law, to administer it.” judge appointed all the regular It is the workload argued grand undertake an permit investigation, would not it to always it has been County but conducted investigations.11 regular 11 McBride, Distinguished counsel former Justice Thomas D. Attorney Attorney Lipschitz, Edwin P. Rome and Louis however, stated, in their brief: “It is Levin declared Herbert S. juries’ ‘special grand number of instances wherein there are a that any case of all in which An examination cases such utilized. were remotely present in the discloses: authoritative case be even could juries grand ‘special (1) have been utilized Philadel no in that questions argued (2) ; the cases were phia in none of the here that ‘special grand (3) of raised; in none the cases in which a grand regular functioning jury impanelled a jury’ was there

576 Pennsylvania under the Moreover, statute March 18, of provision anticipating 1875, is made for call of regular grand jury protracting in and of its duration dispose any order to of unusual workload. Section provides grand jury may that a meet be summoned “to prior holding at such time to the said terms judges expedient; if of the said courts deem shall opinion judges in of the said the business jury any require grand courts at time shall said it, may be for an detained additional weék without April issuing amendatory venire.” a new The Act of P. L. 1927, allows the court hold over jury grand any during summoned term interim grand succeeding as: until the next term is prop power dispose sembled, with business erly grand jury regular laid at a term. before investigation regular grand jury conducting

If a an completed has not its work before the next period may held is over for reasonable convened, (Shenker of time terminate its labors. v. Harr, 382.) Pa. infirmity proceeding glaring

The in this entire of the Criminal Courts failure County machinery already existence. utilize the July ignored only order 11th not the time-hon- well-functioning constitutional institutions ored, up judicial department government set but compete interfere would which with, establishment orderly eventually probably clash with with, Philadelphia County. the law in administration July directed an The order of 11th scope, timeless duration, was unlimited person. power of responsible one to but Unlimited incongruous anywhere America, character investigate.” Independent competent confirm research would this statement. particularly birthplace Philadelphia,

bnt in of Republic. July American The order of 11th directed Special Jury inquire investigate in- Grand “to a,nd any to all forth in matters set the said may properly other in- matters which come before it, cluding investigation any of other con- unlawful part public any person on duct with- of official or ” jurisdiction in our every person County

This would mean that in the of pow- subject inquisitorial would be to the body; every of ers this it would mean that in act through catalogue ranging whole of “unlawful conduct” regulations, the most as- trivial of traffic infractions types, battery, larceny, sault and of misdemeanors all up including in- felonies to and could be murder, vestigated proceedings preliminary ; it would mean that pre- Magistrates’ suspended courts could be while special liminary investigations being by the were made July grand jury. only And not did the order then, suspected crime, 11th make the whole world crime, investiga- suspicious subject circumstances the placed period no limit on the of time that tion, investigating probing, questing, hunting boundless go national could on. In of threatened the absence powers perpetuity are no such or infinite disaster representative government. lodged branch trenchantly warned later Chief Justice, Justice, Stern, “A v. 332 Pa. 388: the case of Shenker Harr, perma- anything approaching tendency to establish repugnant nency our scheme rights.” government of individual and subversive even no assurance that, In there could be addition, investigation author- intentions, with the best July 11th would not cross order of ized limitations and become boundaries of democratic especially oppression, engine fact view the were the limits marked history The line. painted or even a wall, fence, hedge of excesses the inquisitors, of the of overzestful rigors injus- limit the and scope, no time having inquests con- are not from that can result searches which tices into deeply too to a is etched particular subject, fined coun- a free people of the American the conscience practice fraught of a so resumption to allow try from emancipation and threat, tyrannical no that to attain. The fact fought war was bloody intended people of the of the usurpation rights such Good not result. that abuses could does not guarantee the not heal will releasing juggernaut intentions wheels. remorseless of crushed beneath its those wounds of scope of the omnibus character The ever-building par- made Jury investigation the Grand Special 10th, August fact that on manifest the ticularly County Democratic R. Treasurer of the Smith, Francis petition requesting filed a Executive Committee, Spe- the to charge include his Judge Alessandkoni and “investigate it the direction cial Grand Jury con- unreported matter of unlawful and into the inquire Alliance Republican expenditures and tributions election.” during this granted 20th August

On Alessandkoni requires public interest stating “that of scope matter within the subject of this inclusion would added that the investigation investigation political of one any limited to the activities not be ac- applicable but will be or committee, party political or committees of parties of all political tivities within persons jurisdiction or other parties Court” in- of the purpose investigation was original now of municipal illegalities. By charges into

quire “political the “activities” of including any specifically and all persons juris- “within the committee,” party sec- Court” (meaning, every of the course, diction of the tion, area whole district, far-flung could search County Philadelphia), Such into almost individual. any type activity into universality delving such unrestrained probing, and unlimited ques- affairs whole community into tioning private business and matters security, people be a direct would menace the peace, tranquillity every family could Such set aside constitutional regular government. institutions absolute is alien the free authority take permit and this Court will country, hold. ex-

Sir William the imperishably great Blaekstone, Commentaries, of in his pounder the Common said Law, the American as accepted lawyer which are by every countries, basis of all in English-speaking ordered law essentially more that: “the is public good nothing individual’s than in the protection every interested of Bl. Comm. private rights.” (1 139) lead An of power may illustration of one abuse how Fact of Finding to another is to be observed in the 33rd stated Court of Common No. 6, Pleas appropriated $112,000 the Council of City spe- “at the Special investigation, for the Grand Jury of request Judge cial instance and Alessandroni.” of Board request from the we do not have a Here the requisition not find a submitted we do Judges; revealed is what general judicial authority; name of the branch of on the importunity legislative here is branch. judicial of the member single government the before appeared personally Alessandroni of Council in behalf Finance Committee re- made unquestionably That he appropriation. ac- Council manner and that courteous in a most quest from detract does not request graciously to his ceded de- government of one of the encroachment peril authority on another. partment Once irregularities regular procedure ignored, is 18th On follow without trammel. quickly July “pur- Judge Alessandroni issued the order: following order day suant court dated the 11th ap- W. Wilson July, hereby is White, Esquire, Spe- pointed Special Prosecutor connection with said cial Grand to be as set forth in Jury convened order. He and directed accordingly authorized him all of the duties perform upon incumbent lawfully Special inquire Prosecutor investigate as into all matters before may properly come Special Grand Jury, including said conduct on offi- any part public any unlawful or our aid person cial within and to jurisdiction present- Grand Special Jury making proper presentments jus- ment or as the the court ends tice may require.” Penn-

As already stated, public there is no office Concur- Special known Prosecutor. In his sylvania in Hamilton Pa. Justice Opinion ring Appeal, 21 reported involving listed cases grand Cohen In requested accomplished. either investigations, there not one them was an official kind duties even those distantly approximating assigned Judge White W. Wilson Alessandroni. Special

Not does the office of Prosecutor only Penn- person in but there is no in Pennsylvania exist Judge on or even the whom sylvania Alessandroni, could bestow unconsti- Legislature, Pennsylvania and the concomitant powers tutional unconstitutional in the Un- judge’s learned order. implicit immunities of that W. White provisions order, Wilson der con- empowered investigate “unlawful be would within the vast do- person geographical of any duct” Philadelphia. metropolitan mains or is is not unlawful be conduct can only Whether judicial but through process, by means determined precedent amazing without which is document, parallel history Pennsylvania’s W. courts, harry, investigate, quiz, Wilson White could harass, annoy, badger, worry any two number of command and subject according million inhabitants on which, pur- judgment, his own unrestricted came within the view “unlawful conduct.”12 authority Mr. And the exercise of this incredible anyone White would not for misbe- be answerable to usurpations. holding havior or Not a constitutional subject being impeachment; office would he not be judicial clothed with immune sanction he would be prosecution; governmental engaged from criminal person civilly. business he could not be sued No impene- may constitutionally United States such wear against illegal responsibility possible trable armor performance. clanking an The armor such would incongruous anywhere, particularly sound but so Liberty Bell which heard the music of the proclaiming “Liberty throughout the land unto all why Ameri- inhabitants thereof.” One of the reasons against tyrannical King George cans III rebelled was described Thomas Jefferson: “He has erected a multitude of hither New sent swarms Offices, People, Officers to our their sub- harass and eat out stance.” July 11th and order those which followed having responsibility anyone no

created new offices except appointer. July On 25th their Alessan- appointed Hastings F. even who is not Griffin, I'RONi Special Philadelphia, a resident of as assistant to suggested, indication, and it is not There is no that W. Wil White, bar, member of who is estimable con son would infringement others, sciously rights himself to the lend especially delegated power, subordinates, when absolute but high powered wire which must be tension consti insulated with democracy safeguards if is to remain safe. tutional could

Prosecutor. Of of office point his course, law, have no be no whatever since there can as- authority sistant a myth.

On that August 15th ordered Alessandroni space specifically be beyond obtained the courthouse, Spe- of Widener for the Building, quartering that cial Grand stated Jury. order specifically of to the Grand means Jury “by access Boom to be room 630.” happens known No. Room 630 office F. the assistant very Hastings Griffin, contem- Special It is shocking Prosecutor.13 almost advocate, plate that a prosecutor after is an who, all, should be allowed to have intimate contact with he pass of the tribunal who are to on matters members before that tribunal —a tribunal which is brings Philadel- liberties of the citizens of safeguard phia. This is but another illustration of the danger strictly responsibility over turning governmental atmosphere private job individuals to the bring who pursuit investing of a than personal, partisan rather neu- and solemnity with all the dignity unyielding trality. appurtenances appearance

Almost with the and White, an W. Wilson occupying expeditionary force, Griffin, F. year at a Hastings salary $20,000 Widener moved at a into the salary $17,500 year, investiga- made up attorneys, with staff Building together with tors, detectives, stenographers clerks, All other furniture. filing cabinets desks, already grand jury, there exist a of the fact spite clerks, attorney, detectives, stenographers, district them, together appropriate to house all quarters accomplish in- furniture the work equipment grand constitutional investi- orderly volved August 28th, Mr. Griffin states his Ms affidavit 13 In Building.” 630 Widener “at Room offices are

583 gation. Nowhere in the lower court opinion the in as the explanation orders issued there by is to the reason for this duplication effort, costly David enterprise indeed. very costly Solicitor No. in Pleas Berger, argument his Court of Common said: I think “We need not be naive about this, as facts judges need not be we blind lawyers, we the in the bucket men; know is a $112,000 drop dol- and it million is installment on this only first lar bill.” Smith The Court very said aptly “in suit was the taxpayers’ interest.” in- The order of 18th not constitutes an July only vasion of but it pointed constitutional liberties as out, perpetrate would another unconstitutional It mischief. would disfranchise the people realm of their freedom to attorney select a district elected their own choice. James C. Jr., Crumlish, election accordance with the Constitution and the signed laws The learned Pennsylvania. judge who the order of 18th dismissed District July summarily grand from all phases contemplated At- One of the duties of the District jury investigation. to “attend them torney upon grand is before jury, lay upon all which are aid them they matters pass, of witnesses and instruc- general the examination give v. required.” tions as may (Com. Brownmiller, Ct. Superior 113.) Pa. forbade ap-

The learned him to do this. An judge spend have to time expatiat- court should pellate patent illegality on such an interdiction. ing not be his Attorney may removed from The District impeachment. No dicta- except judge by may office from him to refrain doing order his work. torially in this opinion, earlier learned As stated the District consider Attorney’s reply refused him in the against made Leonard petition. charges denial of due process spells there- refusal This completely. en- in this fore condemned whole evil by proceeding tellingly tire than is no more illustrated arbitrary attorney has of a who dismissal district place people putting been elected his upon person passed qualifications whose have not been people, discharge duties serious and solemn people. involve liberties securities unprece- judge authority for The learned cited no his Nothing speedily demolish dented action. can more against rights deny ac- of a him citizen than defense contempt nothing bring more cusation; could law into example quickly by or than the announcement word opportunity bring evi- forth that there can be no against charges misdeeds. dence of innocence purported Special Prosecutor and his assistant The pro- attempt supply judge’s deficiency in the by they arguing, did in connection with nouncement as Special ordering Jury, courts of a Grand appointments.” power In have “inherent to make such support they Brownmiller, of this assertion cite Com. v. Superior are Pa. Ct. 107. The facts in that case wholly Dis- from the at Bar. different ones There, conducting Attorney, in- who was a trict vestigation exercise and who was not disturbed petitioned power, the court for of his constitutional appointment district at- of several additional assistant torneys in- of the unusual amount of labor because making preparing for his volved Upon grand jury. of matters to the the submission by presentation Attorney, the District the Presi- Dauphin Quarter Court of Sessions of dent appointment County of the assistants authorized Attorney, prayed at bar In the case the District for. any attorneys he for assistant district not ask did certainly displaced. The to have himself did not ask judge as established, case indicated, Brownmiller upon appointments representa- suitable may authorize tion not of may District but the judge Attorney, per- appointment his own volition order of prosecuting order District ap- nor he sonnel, may persons. judge The point particular person arbiter and not the prosecutor, must remain the always adjudicate he must he must decide and advocate, as The accused has champion and not either side. prose- as the much to ask the a shield judge right for a right cution has the to ask sword. v. ex rel. Shumaker facts in the case of Com. Mr. White

N. Y. and Pa. 378 Pa. also cited Co., resemble candlelight and Mr. do not even in Griffin, In the Shumaker the circumstances the instant case. Coun Clarion of Butler and case the District Attorneys negotiate, ordered attorneys “prosecute, ties several to restrain superintend” equity settle and suit This river. of a public alleged pollution nuisance the illegal. power delegation Court held that such respondent-prose- Brownmiller case the From the things do all may the sentence: quote cutors “[Courts] for the administration reasonably necessary that are They scope jurisdiction.” the of their of justice within of both support ordering in of the quotation urge the the of appointment the special grand sentence noted that the it must be but prosecutors, limitation “within vital very contains question actions judicial The jurisdiction.” of their scope ju- of his scope beyond went Judge Alessandroni demonstrated. already as risdiction, own its a district attorney remove Court may No act else someone appointing nor may it, volition, removal. result of the same accomplish place, in his that: Pa. 288, Case, 276, in Snyder’s saidWe method or out a points statute Constitution “Where that officer, is exclusive public removal for methods.” other they then respondent-prosecutors argue

The their to hold right de facto officers and that their are war- quo in a offices can be attacked respective only in sugges- but deal ranto here proceeding, again they au- the issue into bringing tions and shadows without “There no doubt thoritative relief. is They say: on court order appointed special prosecutor, ap- well prosecutor, as assistant July 18, 1962, on are their duties pointed July 1962, discharging 25, them public appointments giving of the under behalf whose facto officers color of title. As are de such, they proceeding can attacked a direct authority only for that purpose.” dixit. Mr. White ipse

This statement is mere hold cannot be de facto officers when they Mr. Griffin challenge post they forth in a exist, does of his possession a constitutional official who rights, exercising fice by election, currently O. of that office. James prerogatives privileges Phila de jure is the District Crumlish, Jr., Attorney 310 Ill. 472). v. County. (People Brautigan, delphia of W. Wilson White to take appointment was C. Crumlish Attorney of the District James place M. Esq., because Paul additionally illegal Chalfin, Phil- Attorney County Assistant District First Act of accordance with the June and, adelphia, empowered to (16 P.S. P. L. 370, §7723), §2 reason, Attorney District event, act as was unable to act. the District displace or can any judge If Alessandroni (because or- fiat attorney by district elected duly can cannot be he regarded 18th otherwise), of July der elect- displace lack of reason to reason find some displace if can he the Clerk Courts; Clerk ed displace to the Prothono- on elected can go he Courts elected so that Sheriff, then the time tary be under one-judge rule. would courthouse respondent-prosecutors that It is asserted acquiesced Attorney appointment District in the Special explains Prosecutor. The District ap person understanding that it his that the to pointed legally qualified, is, would be some one Attorney’s How one taken from the District office. regardless At the District ever, modification, torney agree constitutionally him to could not divest upon any duty elected attendant his office self as (Commonwealth attorney. ex Shumaker district rel. 359). Pa. Pa. v. N. Y. & Co., July illegality, was The order of from its aside 18th, infringement self-government at a blow and an people. good on rights of the No amount of intention part judges signed amount of the who no order, duty, good assumption doing one’s will even illegal justify can so autocratic, unwarranted, despotism kindly procedure. do Americans not take thunders cloak of wear the officialdom or whether night. the door at at supporting July July

In 25th the orders of 18th and Special appointing respectively, Prosecutor as them Special Mr. Mr. and Assistant White and Prosecutor, special power assert: “Just as to convene a Griffin judicial pow- inherent, constitutional, is an implement power supplement by so the er, special appointment in- to the assistants court is part judicial function.” as herent attempt uphold they theses Here two fallacious scaffolding thrusting But under other. one any- uphold itself cannot too weak sustain that is special power grand thing to convene a else. The power judicial cannot therefore an inherent is support part special prosecutors appointment judicial function. argues that he arm Mr. White is “an brief In his enabling perform the court better of the court special jury undertaking grand in- court’s that a see vestigation (Emphasis original.) is conducted.” judicial beyond

A Court has no arm anato- its own my; delegate judicial power. it cannot misap- respondent-prosecutors a serious reveal prehension authority. judicial power duties, pro- speak They grand jury investigation they posed personal project carry if out as awere Judge They say: other “Just because Alessandroni’s. judicial fit in discre- courts saw the exercise of their par- tion to have the usual law enforcement officials ticipate investigation in the court’s not mean that does (Empha- Judge way.” had to do it that Alessandroni original). insis Judge course

But Alessandroni must follow, unquestionably procedures au- he desires to do, thorized and Adams, directed established John law. Republic, one the immortal builders of our declared government that our is one “of of men.” and not laws, jury special grand As a matter of if even fact, legal, legally were it was not established Judge preside judge that over Alessandroni was the astonishing phenomenon it. It is an in all opinions orders, and memoranda filed in this case there authorizing Judge not statement is one Alessandroni’s presidency investigation. only the assumed over Not Judges, from is there no authorization the Board of not only suggests is there no even schedule which he should grand jury investigation, conduct a but not there is slightest any intimation from one of the other twen- potentially ty judges Judge presiding available for preside. Through was the one to a series Alessandroni wholly and forced events of chance unrelated to order, system, responsibility, and official control it has been through enigmatic that because, assumed misdirec- Leonard came into tion, Alessan- possessed power he he alone hands, droni’s grand attorneys appoint investigation, call a arrange financing to run its and dictate it, it, scope sug- judicial usurpation by and duration. Such atmosphere gestion, is not consistent circumstance orderly judicial process condemned. and must be judge permitted juris- type A to exercise personal dic- diction or control which his inclinations imagination encompass. may or tate his power, Pursuing concept judicial their erroneous of respondent-prosecutors say: perfectly the clear “It is justice that to achieve the ends of in the certain cases ap- power existence of the inherent in the courts to point assistants is circum- fundamental. Where the special judge convening stances are such that the the upon is not to call District the satisfied Attorney power or General in the must lie way.” the court to conduct its own in business its own They say further that the had Alkssandroni right approve professional help “to of choos- his own ing,” right “pursue justice that he has the sees as he regard Special Jury, it,” to the that, Grand right powers way.” he has “the to conduct it his The respondent-prosecutors upon which the would a confer judge powers powers are the of a the absolutism, of Judge, powers George Star Chamber the of a Lord Jef- freys.

Nothing judicial could be more destructive of re- nothing sponsibility, quickly destroy could more faith nothing easily could the more courts, the weaken very government foundations democratic a than for judge power, to have the autocratic, unlimited he when is “not satisfied” with constitutional to dis- officers, pleasure them at his own miss to conduct the busi- way.” court his “own ness the While, course, operates judge within extensive latitude of dis- rendering it comes cretion when he decisions, is still by Constitution and bound laws the land as lawyer, litigant tipstaff. much as The case of Com- respondent-prosecutors cite the monwealth precedent v. 178 Pa. aas Shaffer, appointment Special Prosecutor. There is case slightest between the facts similarity before us. called those There the district attorney two members bar to assist him in the trial murder into just case because he had come recently More- office he was be a witness. and, addition, Super- trial occurred before the over, 1896, long session Act. “Ju- respondent-prosecutors further argue

dicial functions on independently must be carried without interference legislative from either the laws executive branch government.” Obeying in no representatives enacted can people manner meaning interpreted interference the Legislature. ap- Gargantuan

Once the wheel of unconstitutional started the hill of unrestrained au- pointment down with it was inevitable it would collide thority, added other authorities and further confusion would be when mixed-up began to the situation which already unaccountably the Leonard was filed Grand for month charge of the Jury judge of March. Griffin Mr. to began operate Mr. White and

After up Council took discussed, City under the orders as Hast- to whether P. question for consideration year who to be paid $17,500 per ings Griffin, Jr., for appropriated City funds Council out possessed the detachment and investigation, in- impartial to conduct an required the impartiality City As a result vestigation. consideration, appoint- enacted a resolution 23rd August on Council in- of five councilmen to conduct an a committee ing hold hearings “concerning charges against and to quiry made Councilman Jr., Esq., Griffin, Hastings F. Dis- A. Councilmanic William of the Sixth Dwyer, Jr., trict.” Attorney retained

On the Mr. Griffin following day Robert M. to him in the councilmanic represent Landis proceedings. David

With the Solicitor approval City written appointed Esq., Council E. Berger, Freedman, Abraham inquiry. counsel to conduct the councilmanic special 29th. first for public August was scheduled hearing On subpoena, August 27th the Council issued a Pro over signature of Paul President D’Ortona, Griffin Tempore of the City commanding Mr. Council, to appear According to at the August 29th hearing. Mr. Berger, sworn statement Solicitor by City made declared on of the Griffin, learning publicly subpoena, in- that he at appear as a witness willing opportunity and that he looked forward to the quiry but not limited cross-examining including witnesses, Dwyer, Councilmen Paul D’Ortona and William ” “whom he ‘tear into shreds.’ stated he would publicly August As for Mr. Mr. Landis on Griffin, 27th D’Ortona Tempore wrote Council President Pro purposes informed regarding asking in- On councilmanic that same without inquiry. day, intention Solicitor David forming City Berger his on to do Mr. Landis called so, Alkssadroni Mr. him that had (Mr. Landis) informed he advised before Council. appear Griffin not in- Berger replied 28th Mr. August On Landis’s scheduled purposes hearing quiry regarding inter alia: stating, purpose the next “The day, is to or inquiry determine whether the councilmanic toward appropriated by City monies Council not the Special a conducting Grand Jury Investiga- cost of the Judge Alessandroni are prop- ordered being tion This takes on added expended. sig- erly obvious fact to the the ap- due $112,000 nificance propriated expenses may only defray part the Special request ad- Jury Investigation. A Grand appropriations made ditional have to be will then City Council. justifi- expenditure public

“The monies is these appropriate only they conduct able and if are used political proper investigation, a from one free i.e., impartial, calm other will be bias one which dispassionate study based on and law. of the facts public appropriation, state- “Since councilmanic the indi- believes ments have been made which the Council Hastings grave F. Griffin, cate doubt as to whether investiga- Esquire qualified proper to conduct a Jr., political tion free from or other bias and one dispassionate impartial, calm and based on a will study of the facts and law.” evening, 8:30 and o’clock of that same

Between again informing City in- he Solicitor that without Judge Alessan- to do Mr. Landis called on tended so, presented F. the name droni Esquire Hastings White, and W. Wilson Jr., Griffin, upon Esquire, Pro for a rule Council President Tempore and the other members D’Ortona plus Councilmanic Solicitor Committee, named special E. show and the counsel Abraham Freedman, subpoena quashed why should not be cause the Griffin conducting in- from Committee restrained investigator vestigation Mr. Griffin’s fitness an into Special Special Prosecutor in Grand and assistant evening Investigation. Judge Jury That same Ales- making signed order the rule returnable sandroni restraining August in the meantime but 31st, on conducting hearing. respondents from restraining order was served on named Special City Solicitor and Counsel councilmen, morning next few before until minutes Freedman hearing begin. August was to On councilmanic argument before heard 31st Alessandroni,

593 together Judges and on Weinrott Reimel, rule. restrain- refused to lift the Alessandroni ing Tempore and Council order, President Pro D’Or- appealed respondents, tona with the others listed this Court.14 appellant Special

The Councilmen Counsel particular appeal Freedman in contend that restraining signed by Judge order Alessandroni (1) null sitting and void court because as a court, quarter jurisdiction issue was without sessions, injunction an order which inwas the nature of an strictly jurisdiction equity therefore within the (2) being alone; that the order issued without bond (3) separation filed and under the doctrine of that, powers, it constituted interference an unconstitutional legislative department government. with the appellees on the other contend, hand, inquiry ordering action of Council in the Griffin (1) attempted powers; judicial invasion of (2) Special an unlawful interference with the Grand Jury investigation; (3) and an invalid extension of the powers Council’s under the Rule Home Charter. ap-

A discussion of this feature of the four cases on peal again emphasizing origi- warrants once that if the properly nal Leonard had been handled at subsequent beginning, proceedings all these not would necessary they have been could not blundered many labyrinthian passages into here recounted mentioned) (plus resulting multiplicity others in a arguments hearings, extraordinary actions, le- entanglements gal-procedural in what had been from uncomplicated inception simple, matter. But appellate knot is Gordian here, since the blade function. must Berger’s respondent name was struck off David as a Oity.

proceedings counsel for the he was since legis that a begin question

To there can no with, lative has the to conduct body right will information data, disclose facts and other consideration needed to guide proper enlightened Court of a as legislative project. As late right in v. “The said 401 Pa. 320: McGinley Scott, knowledge to factual investigate to order acquire aid or subjects which concerning particular will, may, determine or if, in their efforts to legislators an their powers, what should exercise is manner, they but of a ancillary to, inherent right legislative body, powers.” distinct such from, is that Council any question City Nor can there Home Philadelphia authorized Section 2-400 by Council Rule to conduct “The investigations: Charter inquiries to by shall have resolution authorize power body to entire by be conducted investigations pow- of its committees in aid of its legislative by and functions.” ers se- Mr. Griffin appellees argue that since was which in- matters investigate to by

lected City it Council for City improper was itself, volved to That he was investigate investigator. Council pur- an assistant to by Judge chosen Alessandroni insofar as this ported Special Prosecutor, litiga- was, even- and that he was concerned, coincidence; tion is was Council into the affairs of City to tually inquire that coincidence. The essential sequel a fortuitous Mr. that procedural potpourri in this ingredient job. to do a paid by City Council being was Griffin job? job to do Whether his was qualified heWas or carpenter architect was investigator, lawyer, it citizenry Council owed to the immaterial, whether properly ascertain the public purse. from funds Certainly, withdrawing person if the illustration, who was an extreme use could not speak investigation, English, subject inquire could of Council question right no one should funds to whether of the taxpayers’ $17,500 for disqualified obviously be turned over to one so more is no job question. Deficiency language proper impartial an impediment conducting impar- in a respect than investigation deficiency tiality. represented

It was that Mr. Griffin had charged could be affected certain clients whose interests firm law of a and that he was a member investigation interests. present in such a a conflict manner as been Council would Under these circumstances regarding inquiry appropriate remiss in not making employment Mr. for the serious qualifications Griffin’s appropriated The $112,000 was to undertake. he admitted Council for grand towas in what first installment all to be the only argu- Assuming undertaking. become a very expensive into inquire chance to Council had lost its endo that was first $112,000 far as the so qualifications Griffin’s ac- a fait was now appropriation the concerned since would that it questioned possibly it cannot compli, receive should if to determine Griffin the right money stream of the additional part any tax- deny To treasury. City from the pour monies as to how tax inquire body right making of financial on sea to embark spent is to be are anarchy. in States said of the United Supreme

The U. S. States, Louis v. United East St. case prop- are expenditures what “the question that municipal administration, necessary er and discretion law it is confided judicial; not right No court has the authorities. municipal super- usurp much less to discretion, that control it.” sede at aimed action, therefore, Alessandroni’s City subpoena restraining the Griffin

quashing un- Council constituted untimely but only functioning interference orderly warranted with the in- branch The government. legislative City court, three-judge tervention on 31st of the August up made of Judges Alessandroni, Weinrott and unauthorized Reimel was even more unwarranted emphasizes in anomalous proceeding law. This acephalous administration loose, uncoordinating, it as insofar Philadelphia County Criminal Courts of in this case. placed has been relief disconcerting assign- one of was on judges Not the three enumerated purported ment criminal court. Yet sat as they argu- heard quarter court en banc sessions, they the heading deliberated and under finally, ments, what put into effect quarter the court sessions, pur- for no other amounted to a decree equity. If, steps than to recount so pose judicial jumble, future, be taken to avoid similar conduct may it to discuss this feature necessary has been Spe- in the eventual decision on the even though case, and re- subpoena the issue over the cial Grand Jury, moot. really order is straining Coun- deprecate degrade appellees pre- “cannot body, stating cil a legislative It powers. constitutional legislative to exercise tend municipal self-government, of local as an arm operates only of the of the legislature State, sufference only by legisla- doled out to it powers the by on hand-me-down First Class Home Rule Act.” the through ture no confirmation language finds derogatory This on the dignity the authority, of this decisions Philadelphia’s home govern- of rule powers the of estab- is one government The ment. a power people the sovereign through by lished ordered, supervised di- plebiscite constitutional by representing Assembly rected the General all people Pennsylvania. Pa. In the Addison Case, this Court “That the Charter constituted 48, 57, said: legislation legislature no less than does a statute of the plain mu- to like end is too Whether a even cavil. statutory nicipal being by charter comes into direct grant legislature adoption by by of the or constitu- constitutionally power ent electorate exercise reposed, legislative as is much the one instance legal standing equal inas the other and has force and adoption constitutionally permissible in both. a Indeed, municipal by whit charter the electorate is not one grant- legislature dignity than a statute less of therefore, Philadelphia’s ing Specifically, a charter . . . legislation (i.e., the Home Rule Charter constitutes adoption competent body), by or enactment of a law just City’s much did the Charter of 1919 as as upon legislature due itself enacted. its Wherefore, Philadelphia’s adoption, on Home Rule Charter tooh legislative enactment.” and status force point appellees city governments are out that only Legislature, “they creatures powers authority self- such the exercise of local legis- government may delegated be them as regula- within limitations and lature, restrictions, imposed by legislature itself.” tions true but it does not This is follow that where the complete power give city governments legislature does power operate self-government, that to exercise regarded as of an inferior character and that to trampled upon impuni- ignored and even it can be judicial gov- ty other branch branch up persons City Council is made who have ernment. processes through popu- the democratic chosen been representatives people they and, election, lar respect and to the consideration their of- are entitled demand. fices tendency regrettable has been a noticeable and

There to treat in and in this case argument oral written brief officials and even with some disdain the slightingly in figured hold office election and have by who who suggested in one or another. It is even way this case people the the choice of they because are simply their usefulness impairs in some manner this fact does Of responsible government. agents course, as himself presents that a person not need to be said who in for and office placed a candidate office is any the to have presumed of the people is majority possess particular for that office and qualifications of- duties of that discharge the moral fortitude to accom- in with the oath he takes fice accordance and conscientiously and to act plish those duties If an official fails accordance with the law. strict people requirements meet of his high office, at disapproval their opportunity register until there has been misconduct but polls, defini- procedures through regular calls removal of no admitting deviation, established tively cooperation respect official is entitled to the persons. other law-abiding all in appellees’ statement brief that Thus, governmental pow- on a lower level of “stands Council the court power constitutional exercised er from the gov- persons not correct. When or bodies is below” power granted to them exercise constitu- ernment land accordance with the law of the tionally other person body. stand beneath do not they dignity be reviewed within may but, acts Their peace justice their jurisdiction, the limits respect much as a Justice of the Su- to as is entitled councilman as much city as a sena- preme tor. brief that their “no say subordinate appellees subcommittee can encroach thus

municipal legislative judiciary.” upon powers It constitutional powers upon no more encroachment the constitutional city judiciary legislature deter- of the of the for the qualified employee they pay is must mine whether regu- perform it for as does Council, his duties than judges’ pass upon larly, payment for of salaries stenographers. decides and If Council law clerks salary judge’s pay it clerk, for a law less more ap- “kangaroo constituting court”, not itself a City pellees improperly Council characterized pay any determining if it should at all, what amount, Griffin. appellees charges City Council The brief of the

“ judicial power’ de- arrogant ‘a of ‘an invasion prin- basic constitutional liberate desecration separation by ciple mu- powers this subordinate ” nicipal CoTincilcommittee.’ any so to warrant evidence The record is bare extreme a statement. pre- question length discussed at

We have some appeal im- of the feature of the because sented powers, portant governmental but we do issue of free of error. that either side is in the end resolve illegal restraining no effect because and of order was jurisdiction its lack of Court, of the constitution enumerated; other reasons we have for the proceeded an- City could not have with its Council under because the resolution nounced legis- operating any failed to announce it was sup- Berger’s purpose. Mr. letter Mr. Landis lative part purpose plied not made a but was resolution. argument

During before this Court, Philadelphia asked the Court for directions Solicitor jury investigations. grand subject of The mat- on the investigations factually grand is decided at ter to the end facts, ascertainable level re- necessary corrective with the keeping action, quirements law and taken. justice, may Perhaps the most ex- recent and worded succinctly position on grand jury investigations Pennsylvania Kephart was made Chief Justice Peti- McNair’s tion, 324 Pa. which can at be consulted profitably all times district public offi- judges, attorneys de- as well as all those cials, who wish to see crime fault tected, law violators remedied, suppressed, the innocent saved from unjust accusation and unfair censure. or-

Prom the this Court concludes foregoing, ders: 6,

1. decree of No. The the Court of Common Pleas of appealed exception here is from, with the affirmed, with- finding Judge acting its Alessandroni jurisdiction his when he the Order of signed July 11, negatived. is finding 1962, order 2. The President signed by Judge Alessan- dated of authority was without July 11, 1962, droni, therefore null and void. and is law, 2, August 3. The orders dated July July 18, 25, and all other orders August 20, August August 15, 21, Special Special to the Grand and the appertaining Jury Prosecutor, Special and the Assistant Prosecutor were with- or orally writing, communicated whether void. and are therefore null and of law authority out members on August The order 28 restraining 4. attor- and the Council Judge and otherwise orally supplemented neys, under his acting or anyone direction, Alessandroni therefore null and void. and is made illegally Phil- of the Council of the City The resolution 5. and dated August numbered adelphia, there- its and purpose describe is sufficiently not did void. null and fore prohibition

6. The on behalf for writ of Attorney C. Phila- James District Crumlish, Jr., delphia, Judge W. Wil- directed to and Alessandroni Esq., prayed son is ordered to for. White, issue as application plaintiff, 7. The of W. Wilson White, prohibition Judges against and writs mandamus and is denied. Blanc Gold, Kelley, Opinion Concurring Dissenting Comment on Minority opinion dissenting concurring The Opinion, makes as it to, will hereinafter be referred frequent persons” “guilty “criminals.” reference liberty Nothing every is more land of fundamental justice person presumed guilty un- than that no is person peers. Every til found under so flag presumed un- innocent the United States is proved guilty. til Opinion Minority says: “District disqualified grand conducting any

Crumlish is from jury investigation alleged wide- into the aforesaid spread corruption and crime.” adjudication

There was never effect so to this only Opinion Minority that this statement unjust ignores utterly As unfair but the record. Majority Opinion, stated Alessandroni disregard proper procedure ignored in a sworn utter Minority pleading Attorney. filed the District The Opinion same. the does Opinion Minority says White that W. Wilson

The indispensable party in been added as an should have proceedings Court of Common 6. Pleas No. before the only re- not so included is that he reason he was The Berger, in Solicitor David included. to be fused night addressing of this Court at the Justice Jones August on said in 29th, the in Wilkes-Barre session presence White] “He in [Mr. White: was asked Mr. party, summarily presence and he my become re- to jected going ‘I am invitation. said, Gold to invite Mr. Com- the Crime White, Commission, Republican Seventy, mittee of filed Alliance which original by Judge which was heard Ales- ‘I General.’ And he will said, SANdkoni, people you, Berger, invite all do in; these do Mr. Lipschitz object?’ Lipschitz you, Mr. And said Mr. object?’ you, Berger, ‘No. ‘No.’ ‘And do Mr. I said, people I all in.’ welcome these And Mr. White sum- rejected marily He is the invitation. said he not party proceeding will not become a to this question It can be a as to Mr. White, whether spite formally party, of his to did not refusal become a litigation. full-fledgedly After enter fact into the completed Berger argument Mr. Justice before his night Mr. in the referred Jones of this Court session to, replied. “My standing I have this: White He said: carry appointing for- order to been directed me investigation, get ready we as soon as ward this proceed- possibly grand jury can for the appointing ings, order required. urgently tax- court found so Should this payers’ wholly I be unable suit successful would perform my duties.” replied only Berger, made Mr. he

Mr. White analyzed length argument, cases, cited and a full he presented It be difficult to conceive he brief. would voluntarily, complete entirely a more involvement, participation. And Mr. White’s in a lawsuit than assumption merit can be little there somehow Common Pleas No. 6 was Court of case disposed by denying Mr. proceeded opportunity to be heard. the fullest White Opinion says Minority then suit Pleas No. should have named as Common also “all other members of in- party defendants If Smith vestigating Miss had to all staff.” name investigating members she would staff, stenographers, had to include of all also the names every typists, messengers, janitors, and file clerics, conceivably one who could ha/ve been affected Obviously multitudinous eventual decision. such only necessary inclusion not it would was not but improper decidedly them, have been named to have they merely bobbing since were on the sea corks litigation. ships their Lawsuits deal with the courses not the of each vessel as wake action, pursues way port. its toward its destined indispensable parties

The in this case those were City who were ordered Council of pay taxpayers’ money. out The finance officers and the Courts were the ones be sued they duly they duly were sued, were served ty- duly litigated. Miss aimed at Smith’s action was ing up purse strings City Treasury of the improperly had case she Her been, claimed, loosened. duly litigated purse strings duly tied. was and the were Opinion Minority says The that “The net result person lawyer15 oppose that there no or tax- protect parties payer’s suit of the who had a pecuniary suit.” immediate and interest direct, hearing The record shows that at the the Court spoke following attorneys Common Pleas No. taxpayer’s opposition namely, E. to the Edward suit, Esq., Seventy”; “Committee of Herbert for the Russell, Republican Fogel, Esq., B. for the Daniel Alliance; A. Crime Commission. If Mr. White Michie, Jr., particular speak hearing, seem it would did at plan mapped had he out to have been because says Minority Opinion filed numerous actions Lawyers credit on the bar.” hired no are “reflected in this case duty indica present it is their to do so. There is no clients lawyers case have not conducted themselves in this tion ethically. properly and

604 participate opposition to in the battle to the extent of any regard but to to make himself non-combatant a with position. might We decision which hurtful be to his acknowledged to the common seen what extent he pleas petitioned action in for a writ that he this court to mandamus transfer the cause Alessan- party litigant, If on what court. he not a were droni’s possible case basis could he for the transfer of a ask from court to another? one disposed on if even the matter is to be

However, technicality, easily cited a it can be that the cases seen proposi by Minority Opinion way support in no par indispensable by Minority tion advanced as Langkamp Minority quotes Hartley from v. ties. The indispensable party ‘A & 243 Pa. 550: . . is Elder, can he an that final decree when has such interest a affecting leaving con not be made without it, troversy in such a condition that the final determina good may wholly equity tion be inconsistent with ” conscience.’ question is: is hornbook law. The This, course, indispensable party to the extent What makes party? named and served as a he must be Opinion Minority At District The states that the Attorney torney contends that since the District is a by constitutionally ordained officer elected who is superseded people func he can never be of his contention. The District makes no such tions. Legislature by Obviously bound he is Acts superseded an can be under conditions and therefore Legislature. What he contends, nounced superseded may simply on rightly not that he so, judge. single ipse Nor is there case dixit of a statute) nothing library (to say of a in the whole empowers judge Pennsylvania act. law so attempted support po Minority Opinion, in of its quotes from the case of Commonwealth v. Mc- sition, quotation very its carries Pa. but Hale, wiping completely contended eraser out what is own by Minority, namely, urged, however, “It for it quashed properly because the indictments were signed They signed by attorney. were the district appoint specially by Guy Parquhar, Esq., E. who was try the Act under ed the court to these cases, ap Pamph. appointment March L. 85. The 12th pears regularly made accordance have been provisions said act . . .” election

That case involved election frauds attorney More- a candidate. where district that this case occurred is to be noted over, part Supersession prior is now to the Act of which controlling. Code and, therefore, the Administrative Opinion says: Minority as- “Even more Then the present tonishing At- District contention of the is Attorney torney unless and that an General, others power specifically by authorized has no statute, supersede Attorney.” a District present question nor in the case

This is involved powers Attorney by anyone. Gen- raised What is it attorneys may district under common eral have over subject there no dis- for discussion since were law is a attorneys has common but that discussion law, trict at judge place on here since our issue is whether no attorney may from a district initiative oust his own any pow- performance In of his duties. event, equated single judge cannot be with those ers of supersession involved, where is General any judge common or statute, lacks law since supersessional capacity. authority to act in a decisional R. and Mr. Justice Justice Benjamin Mr. Jones in the result. concur O’Brien

Dissenting Concurring by Opinion Chief and Mr. Justice Bell: majority utterly two have failed to decide the important questions

most involved in these cases: (1) investigation; Should there be a (2) conduct it? Who should noonday It is clear as the in a cloudless sum- sun sky: mer alleged

(1) grand jury investigation A of all the legislation by City sale of members of Council, by widespread corruption im- alleged graft, and crime Philadelphia’s portant public City Govern- officials in by Com- Democratic members of the ment, conspired allegedly them, others who mittee, required protect public imperatively interest criminals. out the and the order to ferret crimes should (2) grand jury investigation, which This im- ago, not be must been commenced months peded longer “stalling” em- are tactics which investigated, or ployed by are about to be those who deliberately proceedings dilatory un- court investigation al- seriously delay intentionally and persons guilty to es- tracks to cover their low and/or running through cape punishment of statute necessarily proceedings court Such of limitations. deny jeopardize Justice. or investigation con- grand jury be

(3) must The supervision law- of able and direction under the ducted impartial independent completely and yers who are parties any of the connections no close and may be involved. are or who disqualified Attorney Crumlish is (4) District investigation jury any grand into the conducting from corruption widespread crime: alleged and aforesaid

607 impor- very incapacity (a) of because his long to investi- and failure tant or inexcusable matter, charges alleged gate conduct of criminal “higher-ups” City and Administration alleged corruption in party, Democratic as well as spite unjustifiable which in Council—an failure knowledge in Phil- matter of common denials is a his adelphia; and opposi-

(b) particularly strenuous because his any investigation, alle- for and Ms tion months to such gations investigation was—- that a record recently (cid:127)“entirely unnecessary”. until Crumlish’s last — grand necessity minute to the for a conversion (after provided investigator investigation, he is the Court) argued can- orally the cases had been in this prior vigorous opposition give not out blot his a conduct reliable assurance that he can and will impartial investigation speedy, thorough his high- supporters City in the friends and Council and party. er Democratic echelons permit to conduct To District Crumlish investigation repeat, until he has such an we which,— opposed ago strenuously publicly a weeks so few absolutely unnecessary in the Courts as not —would mockery only “improper”, but would make a travesty on Justice: Cf. Commonwealth and be a law 406; Pa. Commonwealth v. v. McHale, Havrilla, Superior Commonwealth rel. 295; Ct. ex 38 Pa. Superior Ct. A. 868. v. 110 Pa. Irvin, 387, 393, impartial necessity immediate, alleged speedy legislation, sale of wide- conspiracies corruption, graft spread other public only matter of common knowl- crimes (of edge which the Courts can take important notice) judicial even more but is mat- grand The reasons for records. such ter length my investigation forth at jury are set dissent- opinion in Hamilton ing 407 Pa. 382-412, Appeal, 366, Judge Alessandront’s opinion 11, dated July in which he ordered a special investi and in District gation, peti Attorney Crumlish’s new tion for a praying grand which he jury investigation presented as in the recently September Uj,* 1962, Quarter Court of Sessions Sep County, tember 1962. In Term, requesting grand Crumlish investigation, said: pertinently

“At the oral argument before the Court Supreme on September for a Grand 12, 1962, necessity Jury investigation challenged.

“As a result of the Order Supreme of the super- on Pennsylvania September 13, 1962, refusing Order of enjoin- sede the Court of Common Pleas No. 6 the further Grand ing payment Special funds, operations ceased its Jury entirely.

“A Grand to restore Jury necessary public City government,** law confidence enforce ment and the Judicial of: system generally because

“(A) charges The cor about counter-charges ruption city government; The

“(B) undermining public confidence in law enforcement;

“(C) public undermining confidence in the ability Courts arrive at judicial decisions political . . considerations; without I would further hold: specifically The decree issued Court of (1) Common Pleas opinion No. by Judge Gold —which voided the Orders of without joinder Alessandroni parties who indispensably necessary had vital adverse had petitioned some whom interests, were re- * days grand jury investigation the issue after of a Two argued in this Court.

** ours. throughout, Italics permission fused to and and intervene—was null void, its decree should he vacated! Quarter Judge (2) The Order of Alessandroni Judge, ordering special grand jury

Sessions investi- a gation corruption widespread of the above mentioned appealed by anyone, and crime was never from valid.

(3) alleged grand A of all corruption by spe- (a) a crime can be made either grand charged jury specially investigate cial these to alleged specially (b) by regular grand jury or crimes charged though investigate alleged to these even crimes, prior regular grand jury specially such convened monthly monthly term is term its or held over its after ended.

(4) exceptional Under the circumstances developed Attorney Gen- have in these either the cases, Pennsylvania approved can eral of or counsel Court investigations. and should conduct these (5) Appeal In et al. the matter of the D’Ortona (members majority City Council) agree I City inves that Council under its resolution could not may tigate City Griffin. Council cannot select who investigate displace, remove it cannot it; restrict, limit, indirectly, disqualify compel, directly or or or Griffin, Judge any Quarter or Sessions Alessandroni my disqualify remove or Griffin. However, restrict, power right judgment, Council has the subject to the laws slander criticize Griffin, power investigate right Grif and has libel, legitimate purpose. proper Such fin at a time and for pending purpose legitimate would be consideration ap legislation,* prospective amendatory or future or money payment propriations of the costs and grand jury proceeding, investigating expenses of an * Charter, Philadelphia Home Rule 2-400 See.

even if the or discredit underlying delay motive was the grand jury investigation.* that I

Perhaps should add I am certainly glad I majority has recommended what strongly sepa- long and seven ardently urged, namely, County rate Courts Common of Philadelphia Pleas should Pleas he consolidated into one Common expedite Judge. with one President This will obviously eliminate promote Justice litigation, and, incidentally, cases many confusing situations of which the instant I However, are striking example. a believe that some majority’s Judges of the Common Pleas criticism is unwarranted.

The reasons for each of the aforesaid will holdings soundness forth in detail and the be hereinafter set thereof demonstrated.

Since a of the principles by number enunciated in Opinion judgment squarely are majority my teeth of decisions of this as well with many as Court, I approved Court and with deem procedures Justice, facts length at some necessary pertinent review of law which these pertinent principles govern and the investig future grand cases and all govern should ations.** * City employed adopted Council similar those tactics (infra) Dauphin Jury Investigation County cases Grand high officials,

cabinet members and State virtue which accused. hunted became the hunters and the accusers became the purposes investigatory However, powers proper are Council’s by Dauphin County Jury Investigation supported principle Grand Proceedings (No. 2), 342, 344, 802; 2 Pa. A. its limitations 332 2d McGinley Scott, v. Pa. 424. 401 164 A. are delineated 2d ** ap- magnitude required the work these cases is pages parent record which totals over 600 briefs from the decisions, pages, prior more than 250 and the number of which total quoted (plus and statutes cited or those discovered authorities text research) required my independent re- which examination or study, 200. exceeded Important

Summary of Facts important beginning very It is to note at the appeal by anyone no taken ever from Ales- respect (except Orders his Order sandkoni’s Council hereinbefore mentioned which was discussed). fully On will be hereinafter more contrary, Judge de- were Orders Alessandronj’s (as attack clared null and collateral void of a result thereon) co-equal jurisdic- by a decision of Court of Phil- namely, tion, Court of CommonPleas No. 6 taxpayer’s adelphia County, in suit an amicable jurisdiction absolutely be- had no which No. Court indispensable (such parties White, cause none of as had immediate direct, Griffin who others pecuniary interest) joined parties and even were prohibited by memorialists Common Pleas were intervening. No. 6 from petitions arose

All of involved these cases pro- proposed proceedings out of and other posed investigations alleged widespread graft, con- spiracy, corruption high of and in the echelons crime Philadelphia’s municipal government City Coun- and in They City re- in the cil and Democratic Committee. counter-petitions, barrage petitions, from sulted a of charges counter-charges, delaying and and as well diversionary many procedures, were tactical which highly political obviously irrele- or so and so technical, they More- no reflected credit on the bar. vant, unintentionally, they undoubtedly, although over, bar in the well as in the caused confidence Courts as everyone temporarily to be a result which diminished, deplorable. le- agrees was welter Furthermore, counter-charges charges, petitions, gal and suits, Philadelphia by conflicting decisions the Courts produced County, chaos confusion and near tremendous Orderly An Administration of Law and Justice. in the generated enveloped politics all which aura and hid sometimes public cases from and successfully from questions legal very important view the legal and petitions raised in and were the various dispel bring suits. In order to and political fog dis- important questions into legal proper focus, from and irrelevant entangled arguments facts and from technical many highly points although which, served to controlling, becloud the main we shall issues, recite important the most material facts in chronologi- cal order. Hemphill

Early Oily Controller Alexander fraudu unearthed and and public made a conspiracy lent conduct the City which resulted loss Philadelphia million dollars. This nearly railway known as the “Frankford El” or Elevated Philadelphia scandal. The com newspapers thereafter or (continued investiga menced their and) intensified tions attempt to discover whether there was wide Philadelphia, and crime in spread corruption graft, if to expose corruption and those involved so, therein. news As result their investigations, papers independent, of which were —all supporters of the Dilworth Ad although so-called City proclaimed widespread there was ministration — Ad corruption crime in the payola, graft, especially among higher ministration, echelon, a grand jury months demanded many constantly prominent Finally, residents, citizens, investigation. taxpayers early June, Philadelphia, electors petitions or memorials* separate filed alleging * Virginia or memorial was filed Knauer The first Hamilton, other on behalf of H. themselves all and Wilbur might Philadelphia taxpayers residents, citizens, and electors who Rubel, join, was filed second Donald and the C. wish prominent citizens, Miller, Jr., other elec- residents, and P. Walter Philadelphia, taxpayers and as members of the Re- tors and publican Alliance. City gov- in tlie corruption and crime

widespread graft, jury special grand ernment and that a requesting investigation complete full convened to make a and “Dis- that further matters. averred the aforesaid They and failed Jr. has trict James C. Crumlish, do which staff with despite adequate refused to act pur- for the appoint the Court and “that so,” prayed intelli- pose special conducting standing special prosecutor high legal gent character.” forthright and of fearless and ability Quarter to the presented were petitions These Philadelphia Court of County Sessions in sitting then over presided by Judge Alexander, note that that Court. We Division Miscellaneous in effect agreement pursuant arrangement to an Pleas of Common the 21 of the Courts Judges between member each of whom is a of Philadelphia County, Pleas Common Quarter several Sessions Court, business month to criminal are each Judges assigned County. Quarter Philadelphia Court of in the Sessions regular monthly grand One supervises Judge Quarter Ses- in the criminal cases and likewise hears “Quar- courtroom as in Court or known sions Court over presides 1.” Another Judge ter No. Sessions Quarter Division” of the “Miscellaneous (so-called) petitions and hears miscellaneous Sessions criminal bail cases (mostly and also hears matters, “Quarter No. known Sessions Court is This cases). conducted also simultaneously trials are Criminal 4.” Quarter Philadelphia other courtrooms other customary statement This Judges. Session Quarter Sessions Court procedure practice made the benefit of Judges County practices proce- unfamiliar are who and to make County, clear absolutely dures Judge Judge whether Alessandroni, Alexander Quarter Sessions presided particular 614 is— investigation a grand jury

over directed Quarter all Judges as Sessions management matter the internal agree solely —a add may themselves. We the Quarter Judges Session internal that in this might decision make any they Court appellate be reversed management by will for fraud. only C. James Philadelphia,

The District Richard- of Philadelphia, the then Crumlish, Jr., Mayor H. James the President of City Council, son Dilworth, named other officials who were city J. and six Tate, filed a writ- in the aforesaid respondents petitions, as all ten in denied they virtually answer investi- opposed charges vigorously any District Attorney, and the Mayor gation. Dis- and the for the Mayor Solicitor counsel (as grand opposed any

trict also Attorney) strenuously in Judge oral before investigation arguments jury peti- to dismiss the urged Alexander —and a grand on that ground jury tions It important note, unnecessary. entirely was Judge that more fully appear, (a) hereinafter will Division in the Miscellaneous presided Alexander decide Quarter his (b) right Sessions Court, expired was term therein had after his petitions said Quarter presided who Judge acquiesced that 1 June and and (c) July, No. Sessions nor did alleged, Judge the parties-respondents none of that special grand proceeding hold, Alexander the law illegal. unknown after careful consideration of all Judge Alexander, oral answers dismissed arguments, petitions, An appeal from petitions. Judge memorialists’ Alex quashed by this Court (in decision ander’s that ground upon the memorialists decision) 2to or right appeal: standing Hamilton no legal had 2dA. 7822. Justice 366, 180 407 Pa. one Appeal, Jones, concur of the aforesaid four filed a majority-Justices, opinion majority which he with the ring agreed take an appellants lacked legal standing the peti but was convinced appeal, prayer of tion should have been granted Alexander. majority-Jus Justice another one of the four Cohen, expressed filed a in he opinion which tices, concurring opinion standing the that memorialists had no the the in petition special to grand jury for a litigants Judge to Court or and that appeal, lower take had no and jury over the jurisdiction grand Alexander should reason that moot and for this appeal was opinion I lengthy dissenting be dismissed. a wrote vigor joined was in Justice by which O’Brien, special a asserted that an ously (1) by that (2) was and grcmd jury imperatively needed, errone opinion decision and were Alexander’s misconception and based upon ous were a fundamental that applicable principles (3) and law, by ordered grand jury investigation should been Judge Alexander ! be- important

It as will hereinafter very note, case that in Hamilton strikingly come apparent, in- special that a- three the Justices held grand jury was Justice vestigation imperatively needed, while no in that do in this asserted case—as now majority special unknown to grand jury case —that not be convened. We further note and could may law Solicitor nor respond- of the City neither time that a special at that grand contended ents illegal. or the law unknown another was filed peti- by Thereafter who memorialists were residents, citizens, tioners Quar- Philadelphia and electors asking taxpayers Philadelphia instruct special Sessions ter investigate alleged widespread cor- graft, and and conspiracy among high City ruption, crime — impor officials and Councilmen and persons occupying in Committee positions tant in the Democratic City legislation inter and cluding, alleged sale alia, members particularly ordinances zoning new Council of City Philadelphia the light —in this forth in which were set facts circumstances inter petition.* petitioners averred, new further breakdown on complete “that there has been a alia, C. of the District James part Philadelphia, public duties and performing Crumlish, Jr., func Jr., tions this The said James C. regard. Crumlish, refused failed deliberately has fact wilfully principal prosecute investigate vigorously between conspiracy involved wrongdoers City Council of and the Democratic City special petitioners Committee.” The also prayed or State present not connected with the attorneys ap should be any way assigned Administration special investigation. pointed to conduct this charges. Crumlish filed an answer these denying In the custom in accordance with pre- presented Judge to the petition the was County, Ses- Quarter Division the in the Miscellaneous siding of who The Philadelphia County. Judge Court of sions of in the Miscellaneous Division then presiding was L. Quarter Judge Sessions was the Charles the April fixed 1962, Judge 27, Guerin Guerin. on petition. on the The hearing hearing time for a filed answer thereto was (which and on the Attor- on behalf of the District Solicitor the by City date by Judge on that held ney) Alessandroni month April of Judge succeeded who Guerin in the Miscellaneous Division Judge presiding Court. Sessions the Quarter of after careful consideration, Judge Alessandroni, filed Order the conven- ordering July 11, on ^[*] Sometimes referred to as Leonard petition. on September 4, a special grand ing of widespread graft, charges the aforesaid investigate re- particularly conspiracy crime, corruption, of the Democratic Council and members spect City opinion, in his Committee. City Adessandroni said: aptly men- incidents that argued

“. . . It cannot be rea- is There tioned are not serious nature. above merit charges to believe ground sonable very at impropriety and indicate the existence Philadelphia, of the City core of the government to undermine natural and effect of which is probable . . . public the confidence of the generally. indicate merely the brief summary

“We recite nature. of a corruption grave are charges government by of democratic existence very gravity An indication of the is at people stake. reflection serious perhaps the most situation director publicity was a statement all, concern- questions Committee that all Democratic City members received by of fraud and ‘payola’ ing charges Com- the City be referred to Council would and if it were screened there would be mittee; they answers provide committee would deemed desirable the . . media. . to the various news indica- charges of the sufficient

“Mere mention it is If corruption exists same. gravity tion and prosecution a few arrests merely [of not cured evidence ample There is reliable fry”]. “small several prima legislation. facie the sale of at least to establish coincidental the passage contributions ITnreported amend- of proposed acceptance or the of legislation suspicion pro quo mere that a quid than more is ments involved. is public of the shocking betrayal trust this is a

“That beyond question. is . . . involved officials in the afflicts the malady politic, body a serious “When This is for so when exist. particularly must remedy a opponents of at least to the a number of vital reasons, Attorney petitioner, probe, the the District usual the proceeding. unwilling A the or to institute unable are good there when in the instant case reason ewists public grounds elected the that reasonable belief political by effectively been muzzled officials high command. petition

“Upon alleged in the of the facts all give ground to believe a serious rise to reasonable govern- corruption grave attacked and infested has City Philadelphia, fol- we summarize ment petition granting a (1) for the citizens can lows: petition (2) grand jury investigation; of the the facts support reasonable belief be sufficient to must the facts deem been and we committed, crimes have (3) only pleadings or documents sufficient; be public matters [and considered are the knowledge]. accordingly the answer We dismiss comment. without further motion to dismiss gravity completely aware of the “We are investigation do not reach and we institution of an in- lightly. is that an Our determination conclusion alleged proceed cor- vestigation in order that the must politic body ruption may from the be excised may of citizens that the confidence end be restored.” opposition made to Ales no was

Thereafter by the District Order or sandroni's by anyone City Mayor Councilmen or or connected any nor Administration; writ with prohibition challenging grand jury investiga filed by anyone.* appeal any taken ever tion, therefrom * question below, agree Although raised I with the scope majority was too broad. For Republican example, Alliance has not been accused investigated by grand jury. Cf. cannot be therefore crime Pa., supra, Special Case, Jury McGinley Scott, 401 Grand v.

619 Berger, July City day, on The next Solicitor 12th, City of and behalf District of the Crumlish publicly Philadelphia, of Administration announced, appears and it as matter record in these cases that, opposition despite previous grand jury in- their to a oppose vestigation, (1) they the Or- would not further (2) by Judge urged der made and Alessandroni, expedited special convening grand jury the be the special appoint- (3) and that “a counsel eminence be investigation. by formally ed Court” conduct denial of facts. There has been and can be no these Judge July on 1962, Thereafter, 18, Alessandroni prose special appointed Esq., Wilson W. White,* Hastings July Griffin, Jr.,* and on P. cutor, 25, 1962, prosecutor, Esq., conduct assistant directions with special investigation with accordance Opinion. previous Judge Order Alessandroni’s City appeared Judge before Thereafter, Alessandroni August assistance 18, 1962, Council on appropriation City Berger, an from obtained Solicitor City estimated cost to cover the Council of $112,000 period approximately investigation 6 for a then collaborated with The Solicitor months. renting Build in Widener of offices in White equipment ing Attor and District thereof, publicly ney offered turn over turn, his Crumlish, req might copies of files White whatever to White, uest.** properly Pa., supra. scope could 397 appeal by by for a writ on

limited Court 101, §1164; 1891, May 20, 2 12 prohibition. L. P.S. Section P. Act of 354; Kensington, v. Alle- Pa. 97 A. 2d Smith New 374 Adams v. gheny A. 137. 105 2d County, Pa. * by attorneys panel submitted From Asso- Bar former Chancellors Chancellor ciation. wise, ** say, proper both of this was all Needless to repeat: appeal anyone at

We No was ever taken any from time or from decision Orders temporar- except Ms later Order Alessandeoni, ily restraining City investigating Griffin. Council from cooperation orderly TMs era of and administration August ended on a was 21st Beatrice tax- when Smith, payer, complaint taxpayer’s filed the nature of a against City’s suit re- fiscal officials who were sponsible payment city moneys, praying for for the of injunction restraining payment an of them from the any money investigation by for the cost of the ordered Judge Alessandeoni. complaint enjoin payment

Beatrice Smith’s taxpayers’ money was docketed in of Com- Court Philadelphia mon 2 County, Pleas No. because but that Court inwas summer referred recess the case was to Court of Common Pleas No. 6 of Coun- ty, so-called summer which at was that time Court, composed Judges Kelley Since Gold, Blanc. Common Pleas No. 5 and Common Pleas were No. 6 co-equal comity Courts jurisdiction, stature and by would have dictated the transfer of the Smith suit Common Pleas No. to 6 Common Pleas No. with- as out doubt it constituted a collateral attack on Judge decision Judge President Alessandeoni, present No. Court. If 5 that had been all the done, questions appeal could have been settled on to this by losing parties in No. 5 and all Court, conflicting temporarily confusion of decisions which impaired public confidence would have been avoided. special grand

Neither memorialists for a by had Judge been allowed —which At.es- approved by and thereafter Mayor, sandboni City Solicitor and the Council Philadelphia, prosecutors as aforesaid—nor the White and Griffin, investigating other members many of staff, up permanent given jobs had whom in order to aid as crime in a public investigation alleged civic duty then salaries who owed corruption, were If the suit. parties were made wages by City, cents who had few Smith, amounting interest or at she most a few a proper party dollars, —as neces- proper White et were certainly al., was — parties. memorialists sary when the Furthermore, filed a petition invited intervene, being —after to do Judge so—their refused Gold Kelley No. We Judge Court, wisely dissenting. also note that to the Gen- wrote Gold eral of him if he to inter- Pennsylvania asking wished vene or take part Attorney General, case. The whose work the Commonwealth is not state- only but wide, replied record tremendous, declining intervene.

It is No. astonishing note that before case 6 and field” Court, City Solicitor “reversed his agreed with Smith, Judge complainant, Ales actions and Orders which had thereto he SANDronFs fore were null and net void.* The approved, illegal, result there no party lawyer person, to oppose or to taxpayer’s protect suit of the any parties who had a immediate and in direct, pecuniary terest the suit. Common Pleas Court No. in an 6, opinion Judge thereupon by entered an Order Gold, (1) enjoining financial officers of from paying any money which ap Council had aforesaid propriated as for grand jury investiga tion and (2) declaring illegal, null and void each and one of every Judge AlessandronFs aforesaid Orders. filed the decision Court of Common Gold September Pleas No. on 6 and 5, 1962, since there was no take adversary party an appeal, Berger, the City * Berger, Knowing do, we as we believe be acted in accordance conscience. bis witb

622 appeal took to bis

Solicitor, immediately credit, this Court. of Com

Tbe Orders and tbe Decree Court issued null mon absolutely Pleas No. 6 per Judge were Gold Nei of lack indispensable parties. void because parties indispensable ther tbe memorialists nor any me nor were included tbe parties were defendant, that Court. permitted White, morialists intervene in investigating tbe all tbe members of Griffin, bad and pecu staff* substantial direct, immediate, v. niary Lang interest** tbe Smith Hartley suit — kamp 402; 243 Pa. 90 A. 550, Gard Elder, 555-556, 491; ner 2d v. 382 Pa. 114 A. 95, Allegheny County, 88, Fineman A. 819; v. 273 Pa. 116 see also: Cutler, 189, Rac Keystone v. State Raceway Corporation Harness Ritter ing 97; Pa. A. 2d Finance Commission, 1, 173 A. 2d Inc. v. 401 Pa. 246— Company, Myers, indispensable tbe parties were consequently Smith Court of Common 6. Judge suit tbe Pleas No. * parties nomine, sub These should have been made defendants White, et Griffin al. ** $112,000 salary appropriation approved made Council approximately period for a six months at for White rate year, year $20,000 $17,500 per per Griffin at and for the rate of wages investigators, secretaries, as well as etc. At time of Common Pleas No. had been decision White July working July since 18th and Griffin 25th without since September September compensation As whatever. 5th as of argument Court, 12th, the members date some the wages for in connection and their services owed salaries staff were investigator employed by investigation. at One contract with the Hence, judgment per if of Court of $000. owed week was $150 in the Smith case should individu- stand, No. 6 Pleas Common compensation will never receive now owed them als mentioned approved by City as of a Court which Council Order under an persons relinquished Moreover, per- these some of had aforesaid. service, public Quarter jobs which the render Sessions manent ap- previously Administration and had ordered had proved.

623 accord- indispensable party was also an Alessandroni be- petition Attorney Crumlish, of District ing prohibition cause he filed a for a writ Wil-W. and also against against Judge Alessandroni, son White. supra,

In v. 243 Pa., Hartley Langkamp Elder, indis A is the Court said : “. . . 555-556) party (pages de a final pensable when he has such an interest leaving cree cannot be made affecting it, without final de a condition that controversy such equity with termination be inconsistent may wholly presence conscience. That his good is say con is are so party indispensable rights where his decree nected with the that no litigants claims can be made such impairing between them without . . nei indispensable parties . The rule as to is rights. nor ther technical one of absolute convenience; goes to the their ly without jurisdiction, presence ” cou,rt can no . . grant .’ relief. In v. Gardner 382 Allegheny County, Pa., supra, Court said : “. . . In (pages 95-96) Cutler, Fineman v. ‘ 273 the Court Pa., said : “One must supra, (page 193) be joined who bound de- otherwise, being might ineq- assert demand . . . which would be cree, performance uitable after the of a decree favor “A plaintiff”; again indispensable is and, party when he has such interest that a final can- decree not be made without it or con- affecting leaving the in such a condition that troversy the final determina- tion inconsistent may wholly equity good . conscience”; . law that No.

It well settled Court had ju no its orders and decrees risdiction must be vacated parties: indispensable for lack Reifsnyder v. Pitts Adv. 396 Pa. Co., Outdoor 320, A. 2d burgh 894; 381 Pa. 405, v. Shepard, Powell 113 A. 2d 261; v. 403 Pa. Rosenberg, Agency Dozor 240, 169 A. 624 Pennsyl Company

2d the State 771; Insurance Company, Casualty 405 vania v. Lumbermens Mutual Keystone Com Insurance Pa. 177 A. 2d 94; 613, 617, Corporation, Warehousing Equipment pany 402 v. and Geesey City Pa. 254 A. 2d v. 608; York, Pa. 318, 165 Langkamp Hartley Pa., 243 A. v. and 27; Elder, 99 397, supra. Pittsburgh Reifsnyder 396 In v. Outdoor Adv. Co., (page 326) supra, fail- Court : “Plaintiff’s said Pa., present indispensable parties join ure to in the these jurisdiction to Equity a Court of without suit leaves prayed any grant relief the relief for or substantial appeal quashed. and be must Avhatever, Shepard, 261, “In Pa. 113 A. 2d Powell v. 381 405, indispensa- (page 412) : ‘The the Court said absence parties absolutely jurisdiction, “goes and ble presence grant relief”: court can no without their Langkamp Hartley A. 243 Pa. 90 556, v. Elder, 550, rights indispensable party . where his 402. . . And, litigants no of the are connected with the claims so impairing be made between them Avithout decree can rights: . . .’ such Hartley Langkamp 243 Pa.

“In v. Elder, (page 556) : said ‘It is a settled A. the Court jurisprudence equity an absence of as the rule of jurisdiction goes indispensable party court, to the of the proceeding ground objection may on that to the during hearing appeal any on an time, raised at trial . . of the court the decree from escape by glossing majority can not over indispensable parties question dozen adversely answer Court which to the cases it— majority. often does this Court How have to estab- principle reiterate a before iterate law lish Pennsylvania? established law it becomes that the therefore, Orders and clear, It is Decree Pleas Common No. 6 of Or- the null result that are the County void, men- hereinabove ders made by Judge Alessandroni investigation, directing special grand jury tioned, were which no was ever taken appeal by anyone, from not be challenged and could full force effect Order proper suit. It that only Smith follows to va- is which this Court can make in the Smith suit of Court cate the Orders and the Decree made Common Pleas No. 6. these raised and involved questions

However, people important cases are for the protection so clarification and likewise for the Philadelphia, all proceedings, future or grand jury investigations I indispensable par- that will assume that all arguendo had joined. ties been

It 6 is contended that Court of Common Pleas No. consider jurisdiction had neither the nor power complaint the Smith or to invalidate the Orders equity because the bill Judge Alessandroni Smith a collateral Orders upon constituted attack Quarter afore Sessions Court made as judgment rule said is by Judge general Alessandroni. Quarter has a Court of or Court where Sessions any parties, matter subject and of the jurisdiction which it makes not subject an order or is judgment Common collateral in a Court of proceeding review a or in Court coordinate jurisdiction: Pleas Pike 242 Pa. 88 v. A. Moel Northrup Township, 1, 781; 352 Pa. 44 ler v. A. Washington County, 640, 644, 2d v. Construction Pa. Tenth National Bank 227 252; Co., v. 67; A. 107 Pa. 20 Doyle 76 Commonwealth, 354, one court can or said, modify (where “[If] of another court of co-ordinate judgment set aside deplorable most consequences . . . the would jurisdiction v. 159 Kennedy Pa. A. ensue.”); Baker, 28 146, likely 245 Pa. 314, 91 A. Cottesfeld, 494; In re Dauber 252; 46 A. Pa. 435, 442; 196 Plains v. Hain, Township’s man 626 Pa. 209 Pa. 206 A. Haines v.

Appeal, 60; Hall, 56 556, A. 58 A. v. Pa. 125; Gould, 51, Randal 986. I rule,

While there no doubt about the general is exceptions there is be one more believe and should or taxpayer’s and one exceptions of these thereto, munici to restrain the payment money* by suit parties indispensable pality provided, course, therefore or therein. I appeared joined were would rule oust general hold that would not itself Com of Court of jurisdiction invalidate decree No. 6. mon Pleas right of this Court hold

Many decisions that cannot be tested jure office de and de facto officers any or or mandamus or by injunction invalidated except action an action of Pleasant Hills quo warranto: A. 2d v. 359 Pa. 59 Borough Township, 509, Jefferson Brinton v. Pa. 181 A. Common 697; 569; 320 62, Kerr, rel. v. Pa. A. 389; wealth ex 316 175 Gibson, 434, 429, Common Williams’s Pa. 167 A. 477, 587; 312 Appeal, rel. v. wealth ex Palermo 339 Pa. Pittsburgh, 173, 178, v. Pa. 24; 555, A. 2d Commonwealth 294 13 Snyder, v. 748; A. Commonwealth 307 Pa. 406, 559, 144 Blume, 161 A. 551. also to the same effect: Spen See 413-14, 64 A. In cer v. 361 Pa. 2d 771. Pleasant Snedeker, 234, v. 359 Borough Hills Township, Pa., supra, Jefferson (later (pages Chief Justice) Mr. Justice said Steen : 512-513) A dis- person possession

“... an office and the color under of authority, its duties charging —that from an derived election or appointment authority is, so that irregular informal, the incumbent however a de facto volunteer, mere not a his officer, be —is respects far as public; up- so good are attacks acts * exception corpus proceeding familiar habeas Another validity petitioner’s of a sen- conviction attacks which and/or case. in a criminal tence

627 insti on the must be right such incumbent serve tuted the Commonwealth in a direct proceeding v. purpose and cannot made collaterally: King 309, 26 A. 308, 154 Pa. Co., 160, 168, 169, 526, 221 310; Krickbaum’s Contested Pa. Election, 521, v. A. rel. Raker 854; 70 Commonwealth ex 527, 852, A. Common 294 Pa. 144 Snyder, 749; 555, 559, 748, 177, Palermo Pa. wealth ex rel. v. 339 173, Pittsburgh, McCreary 26; A. 2d Commonwealth ex rel. 178, 13 24, 2d Com Pa. A. Major, 355, 690, 691; v. 686, Superior 141 Pa. Ct. 107, monwealth v. Brownmiller, 14 A. 2d 910.” 112, 113, facto appear

It would are de White Griffin authorities. officers come within the foregoing I I because point make no decision on this However, questions important public prefer, view very on broader place grounds. decision involved, my I consideration therefore turn next to a Pleas Common Alessandront’s Orders Court Phila- void. enjoined and decreed to be null and No. 6 State, in the unlike other delphia County County, month. every Grand (so-called regular) Jury convenes a Grand convene Jury regular Other Counties four term service three or times year, or a of period for three extends jurors usually these prac- are unfamiliar months. Those who with the four in are County which procedures and tices of tremendous number crimes the which by necessitated fail to realize the functions and the (a) occur monthly, of performed work by regular amount enormous in Philadelphia County; (b) and monthly grand of several Judges dispose assignment necessary volume criminal cases enormous and mis- this matters which rea- criminal whenever must, cellaneous or heard tried each month. There be possible, sonably and there are no such problem divisions no such in any Courts other County in the Quarter Sessions conversant person and no unbiased who is State, would Philadelphia County in practices procedures de- hearing right question Judge Alessandroni’s presented memorialists’ petition termine the which Quarter Sessions to the Miscellaneous Division of was, in This Court over he 1962. presided April, which management a matter of internal we repeat, Quarter Sessions Quarter Court Sessions speak- Judge Gold, As Judges Philadelphia County. said so aptly for the Court of Common Pleas No. ing Judge fact that “After careful consideration [of preside “designation” did not Alessandroni Quarter May, months of Court of Sessions during “designated” or and had not been August June, July month during as a said preside Judge right that he had such September] conclude [to we memorial- consider and determine the opin- in this . . . for stated the reasons ists], although supports there is no law which authority ion, the orders a special grand jury [for which special prosecutors] appointment Court made. had not been fact

“The Alessandroni Quarter Sessions to sit the several designated him, prevent 1962 did not subsequent Courts April, adjudication on the to defer his hearing petition, after careful and necessary study until when later, [after he important legal questions the very many involved] decision issues had come [on raised]. deferred adjudications and petitions, “Motions been before a judge sitting sentences, Quarter in a Court of Sessions judge may designated of later when he is no disposed longer sitting are volume of judge. argu- designated trials, aas [The miscellaneous matters in Philadelphia ments absolutely necessary make the orderly County

629 administration of judge law and He is still Justice]. Quarter Sessions.

“In Com- re Kensington Turnpike v. Oxford Road 12 cause Phila. pany, 611, at it is said: ‘That Quarter is in is the Court of county Sessions of the that not denied. particular What or hold judge judges if any of no to duly importance is court, commissioned, one judges courts, save the .... The themselves several one public as business detail therefore, demands, public or of their number to hold all said court. The to do the sched- nothing suitors, therefore, courts. ule or hold assignments judges said It for made the convenience of by judges of all the four general (now business seven) courts, at moment.’ may changed at Pa. 531 Green, “See also Commonwealth v. 126 note, supports the page (1889), we [which, amply on Judge position Kensington case, supra, Gold’s this point.] hold for reasons

“Therefore, stated, we memorial considered lawfully Judge Alessandroni Judge presented for investigation by grand jury turned March latter on 22, 1962, Guerin his succes- designated as over to Alessandroni Quarter 1962.” April Sessions Court No. sor Body Jury “Special” Is a Lawful A Grand hold no known there is body majority The if understand and we special grand jury, as law exist Grand cannot two Juries correctly their opinion contrary This is so simultaneously. and operate decisions Court that many prior realities and incomprehensible. majority admit, it seems could monthly grand jury that a regular (1) they must, Quar- charged presiding specially investigate, if charges made in memorial- Judge, ter Sessions 630 that (2)

ists’ and before Alessandroni advance an convened in investigating such can be jury after its for months many can be held over and/or (3) and term regular monthly service ended, these investigate that such could jury continue monthly charges for months after its many regular specifically term All of these were propositions ended. 298, A. 2d v. 332 Pa. 2 approved Shenker 382, Harr, and we are admitted repeat majority by after Court. The with me majority agree likewise it term of a ended grand is monthly regular jury Jury a special becomes thereafter investigating Grand re- presents and which its recommendations findings, Quarter or ports presentments to the Sessions functioning for subsequent consideration the then Jury or subsequently convened Grand regular monthly which as we all Grand is, know, indicting Jury.

A and regular Grand is both an Jury indicting de- jury. It considers evidence to investigating grand to find Bill of or termine whether a true Indictment against persons Bill of Indictment accused ignore investigates everything and it also and crime, anything Quarter di- presiding Session Judge may which regular only rect. we so-called However, repeat, par- indict its can and if a Jury during Grand term, holds investiga- over thereafter ticular it can continue its re- purposes tion in- its but cannot findings presentments, port differ- only absolutely dict. The only difference — an investigating grand such regular ence—-between special investigating grand which jury jury is that this case a case, special convened with the was convened sole jurors purpose venire forth in charges set the memorialists’ investigating petition. Act upon the rely March

The majority 18, 1875, Act April 27, P. L. 420, amended grand provides 17 P.S. Section §1351, may prior jury he summoned to meet at such time term, holding Judges Quarter its that the expedient, “may de Court shall deem Sessions issuing tained for an additional week without the grand may new venire” be held over “until succeeding . .” of the next . . term is assembled mandatory directory It clear that this is and not exclusionary. example For v. Harr, Shenker supra, ma other authorities Pa., jority hold, regular

Opinion a concedes even so-called grand jury monthly may in advance be summoned completed may over be held its if period labors* a reasonable time to terminate its for n —not succeeding only grand jury until the the next may monthly term is but be over after held assembled, monthly grand juries assembled numerous have been expired. terms their have supra, :** In v. the Court said Shenker Harr, grand question presented a “The here is whether regular jury, for term of can continue convened a court, uncompleted beyond such function as business grand concurrently remain in term and session with regular juries succeeding . . for terms. . summoned [Act 13, if acts of March these however, “Even, April Amendatory March Act of Act of 18, 1875, fixing as time limit were be construed a 27, 1927] upon grand purposes, for their of all the session directory provision must be considered to that effect mandatory. . . . and not grand jury if a contends that functions

“Plaintiff adjourned during of the court after a suc- session brought regular ceeding term has with conven- * investigating grand jury per- v. Harr 1he In Shenker investigations for 14 months. its continue mitted to ** by Justice, opinion Justice, written later Chief A unanimous Horace Stern.

ing grand jury, of another be two result will grand juries operating county will be in the at practical same time. Neither in nor law from a stand objection point, is there serious to such however, a situation.”* upon majority rely

I note that also the Act requires March §472. P. L. 17 P.S. This 13, 1867, convening jurors regular grand of 24 for each (monthly) Quarter session of the Sessions Philadelphia County. always considered has been This directory to be and non-exclusive. Were it otherwise, grand jury often inter could not act, because, alia, many grand jurors might be fact that so would legitimate excused for result that less with the reasons, jurors duty. grand might than 13 be available for legally inadequate, Such a be would that a would sum- result new venire be possible ignore majority moned. it is How I do not understand. these realities, jury, repeat, majority grand To that a holds validly regular monthly grand meaning jury, can prior special purpose of to for convened its term the corrup- alleged widespread charging investigate it to validly tion and held over for months and can be crime complete investigation. majority The thereafter to its validly special grand jury cannot then that a be holds special purpose charging in- for it convened the corruption vestigate alleged widespread and crime and validly months thereafter cannot held over complete investigation. its can there be ’twixt tweedle-dum a difference

What tweedle-dee. and

Assuming a material there is be- difference and the and tweedle-dee, realities tweedle-dum tween * repeatedly approved the Courts I further note jury. presentments grand procedure the made such a and such support of this Court and prior decisions legalize, special justify grand jury.

Realities make Philadelphia realities Court business circumstances) a special grand (under exceptional jury spe- of a absolutely advantages One of the necessary. customary cial grand one of the jury proceeding and results is that made by which is time special grand of the lack jury because —and grand cannot usually regular monthly be made aby which jury out of crime and criminals ferreting —is dis- processes readily cannot ordinary law cover or cope with. adequately

A witnesses regular grand we hears jury, repeat, prima thereafter decides facie case whether a ignores a crime on that basis finds or exists, Jury Bill or A regular Bills of Indictment. Grand presiding likewise matter investigates any Quarter In investigate. Sessions directs Judge in the year regular monthly County considered average together bills indictment which were presented, the District supporting his witnesses, by staff. Of these 1828 finds monthly grand bills, jury ig- on the 1668 true bills average every month, regu- nores 160 bills. approximately Furthermore, lar we under a monthly grand is, repeat, duty matters investigate presiding whatever Judge Quarter Sessions directs. addition If, hearing witnesses, indicting persons all ac- this — investigation of cused of whatever matters crime, regular monthly grand directs —a jury would Philadelphia of investigate charges have wide- and crime throughout in- corruption spread City, of trials criminals will be and re- grievously dictments or will become lost their recol- move, witnesses tarded, limi- lection or become statutes may hazy obscured, of op- tation and have further run, criminals will may tracks”. net would to “cover their result portunity be be law citizens would protection abiding fur- of ther weakened and not but delayed jeop- Justice only ardized. A protected law can be abiding community from and only police criminals force adequate and conviction trial speedy arrest, indictment, and the prompt adequate sentencing criminals, them Philadelphia the Courts. The crime wave alarming; and the of untried criminal backlog cases is increas- crimes and are backlog constantly moreover, On ing. September there was 1, 1961, backlog County untried criminal indictments On approximately September 12,700. 17,- untried backlog of criminal indictments nearly hear To 000. require regular grand monthly jury more dispose or approximately witnesses bills indictment each and at the time month, same Quarter specially investigate whatever the presiding and also to Judge may investigate Sessions direct, period widespread graft, a four to six months charges Phila- in the corruption crime echelons of higher so impractical unrealistic delphia’s government, to be fantastic. Jury Prior Approve Special Decisions Grand Investigation de- if realities ignored, prior even are However, Superior Court and of of this cisions in- time time a special grand after approved speedy ignored can if vestigation repudiated, are certainty stability Justice and Law Pennsylvania. prevail wide- A special grand jury alleged approved and crime was corruption Dauphin spread Investigation (No. Jury Proceedings 1), County Grand

635 Case, Jury 2 in 783; Special Pa. A. 2d Grand 332 289, v. 2d in Commonwealth 592; Pa. 154 A. 397 254, in 2d 57; 154 A. Pa. Ct. Superior 179, 196, 190 Evans, in Commonwealth supra; v. 332 Harr, Pa., Shenker 2dA. 90 Superior 171 Pa. Ct. 134, v. Hershman, Superior 146 Pa. in v. Antico, Commonwealth 314; Brown v. in 22 A. 2d Commonwealth 204; Ct. 293, 312, in 2d Com 907; 141 Ct. 14 A. Superior Pa. 107, miller, A. Ct. 107 Superior 423, monwealth v. 175 Pa. Soloff, Superior Pa. 172 v. 179; Gross, 2d Commonwealth 168 Pa. 2d in Manko Appeal, Ct. 92 A. 251; 85, Ct. A. 2d 700. 77 Superior 177, in Com- 397 supra, In Special Jury Case, Pa., Grand supra; Superior 172 Pa. Ct., monwealth v. Cross, supra; Superior Ct., v. 190 Pa. Evans, Commonwealth su- Superior Ct., 175 Pa. v. Soloff, Commonwealth Superior Pa. 171 v. Hershman, Commonwealth pra; Ct., Superior in Manko 168 Pa. Appeal, supra; Ct., con- was “a investigating supra, special regu- the so-called vened” In the other eases, supra, its term convened before lar Grand was Jury and/or cases and in all these after held its long term, over or this Court and referred known jury such was its a special grand Court as Superior —and in- in the limited as thereafter were duties powers power without indict- cases stant al- acts of such jury, validity ment —and sustained by challenged, vigorously though Court. Superior or by Court Pa. 2d 154 A. Jury Case, In Grand Special such asserts there is no now Gold—who Special “a Jury Grand special body —convened certain criminal investigate alleged ... Jury Grand the ranks Local 107 of existing situations” This Court issued a writ Brotherhood. International Judge Gold “to directing discharge prohibition himby on September 3, convened Jury Grand Special unknown special grand jury 1959”—not because a investi- but only because illegal, widespread did not gation support any allegation crime. Moreover, specifically recognized of an validity investigation by special legality it “We not con- grand said do jury (pp. 260, 261), when we done the acts in the suggested darkly petition, not if special grand\ do that situation a say the worsens it. convened to investigate be jury may properly .” “. directed . . . . writ of prohibition issued, [A] Joseph him E. to the Honorable Gold requiring con- Special forthwith to the Grand Jury discharge September investigate him on vened by 3, 1959, connec- Local to terminate all proceedings 107 and tion it.” Pro-

In Dauphin Investigation County Jury Grand (No. probably ceedings 332 1), Pa., supra, which the bitterly grand jury most fought speaking the of the this history Commonwealth, Court, : 293) Kephart, (page Chief said through Mr. Justice Dauphin of April “On the District 29, 1938, presented primary on the eve of a County, election, Quarter peti- a the Sessions of that county, Court convened grand a be special jury tion requesting campaign made during to investigate charges individu- public private officials and certain against for “The page : this call 298) genesis als.” And (on petition suggestion the special grand jury Attorney.” of the District Superior v. 171

In Pa. Hershman, Commonwealth : “On (page 135) the Court said petition Ct., supra, of the Commonwealth Court Attorney General Quarter directed Allegheny County Sessions al impaneled investigate special grand a enforcement certain with boroughs of law lack leged Allegheny.” County Superior Ct., In v. 172 Pa. Gross, Commonwealth present- 88-89) (pages supra, Court said : “The investigating prepared by special filed a ment was upon petition Attor- summoned Pennsylvania, ney . . .” General fought bitterly exceptionally Com- case of In the Superior supra, v. Pa. Ct., monwealth Evans, (which in 399 Court affirmed was afterwards prayer following 387), record Pa. shows presented by Attorney General which was Pennsylvania Quarter Sessions Dauphin County: your petitioner [Attorney now General,

“Wherefore, prays make Herbert B. that this Court Justice Cohen] directing Special Jury* con to be an Order Grand and to have summoned before it witnesses vened such complete may require making in full making vestigation full of the aforesaid matters and petitioner report reserving thereof to unto this Court, expand scope enlarge upon right to and of said the the supplemental Jury investigation petition by Grand petitions presented to be to this Court.” Special Following investigation by the Grand Jury such which was convened accordance with Dauphin County prayer, Quarter the Sessions following order: entered the Attorney January the Now, District 21, 1957, “And prepare regu- directed to and submit to

is herewith the Jury January, 1957 Grand now bills lar session, covering all the matters in the contained indictment * McBride, Esq., and Thomas who Justice Herbert B. Cohen Pennsylvania Attorney General of conducted him as succeeded investigations Attorney Special the District made with the Jury, for the who is now counsel Com- Democratic Grand body mittee, there is no such known now assert to the law jury. grand special the Special Investiga-

presentment Jury Grand tion made to the Court on 1957.” Friday, January 18,

. In President of the opinion Superior Court, (page. for said speaking Court, Rhodes, : 196)

“1. The of the Indictments. Validity At- of the “On October upon 22, 1956, R. torney General the Commonwealth, [Herbert District September dated in which 1, 1956, Cohen] in- Dauphin special had County joined, was convened. The matters dis- vestigating grand jury grand presentment investigating closed sub- of indictment formed the basis the bills jury regular at direction of the to the Court, mitted, 1957. On Janu- for the Sessions of grand jury January indict- returned regular grand jury ary 23, have five of the nine whom against defendants, ments ac- and four of whom were appealed conviction, after . . . quitted. investigating is that

“A consideration further separate are indicting grand considered bodies. both Although may legal individuals, same crimes alleged involving same are presentments deliberations, their proceedings, not one affecting may Extraneous matters distinct. are irregularities before one the other, influence un- other; in the the two bodies are always present an indictment respect. Consequently, in this related by is not tainted jury necessarily grand regular aby influence improper alleged or irregularity some . . . .” grand jury investigating the affected v. 146 Pa. Superior Ct., Antico, Commonwealth In conspiracy indictments charging involved supra, of the Election the Court provisions Code, the to violate : 312-313) (pages said

639 “Special Grand Jury Investigation questions concerning propriety “The raised and ordering special court’s grand jury now trial on the bearing conduct as same, ap disposed adversely under are consideration, Brownmiller, pellants in the in Com. v. opinions recent Kirk v. 141 Pa. 14 A. 2d Com. Superior 907; 107, Ct. affirmed, Superior et 141 Pa. 14 A. 914; Ct. 2d al., 123, Pa. 324 A. Petition, 340 Pa. 17 2d 346, 195; McNair’s Superior A. Pa. 498; 187 Com. v. 137 48, Brownmiller, cited A. and Ct. 2d the cases 261, 267, aof matters them. The offenses dealt with charged well-being grave public importance nature of proper the Commonwealth. were They peculiarly presen for the investigation by special indictment tation district bills of attorney as directed grand jury.” Superior

In Manko Pa. supra, Appeal, Ct., Justice, Superior through later Court, speaking Judge, : “A (page 178) special investigating said Arnold, upon grand County was summoned Allegheny Pennsylva General nia . . . .” Court and the Superior often does this

How proposi- iterate reiterate a assert, establish, have to it to be maintained the law recognized tion for can lower Court How Pennsylvania? Judges their powers know how public officials limitations, citizens be can men abiding protected, how can law or or deeds if or make contracts wills, law safely changed? frequently meaning its Be Superseded Certain Attorney May When A District Exist and Circumstances the Interests Unusual Require It Justice or unusual circumstances extraordinary Special require of Justice interests supersession exist and Dis example a District for whenever a Attorney, trict or in complacent is or too or Attorney lazy ill, or mistaken about the law or his competent, powers or or should disqualified per be because duties, reason sonal or or or where family legal interest, ably appears that his failure to take promptly appro consid priate and adequate action is due to political rea or political erations close or for any whenever ties, promptly, son whatsoever failure or refusal act his im result impartially will adequately likely Justice. public periling interest and jeopardizing condi or any Where these unusual extraordinary (1) tions superseded a District can be exist, Attorney (2) authorized by proceedings by statute* and/or his General of under by Attorney Pennsylvania ap broad common Court powers by law (3) and/or pointed power counsel under the inherent and right protect and to law abiding community preserve promote astonishing It Justice. (2), the well established forth in principles law set have been the District supra, challenged by City Solicitor and by by Democratic deci Committee, by spite others of the many of the Court of Supreme sions Pennsylvania and reaffirmed principles many sustained these rejected times the same contentions which made are present District Attor by Attorney. The District prop contentions are based on ney’s fundamentally District osition that since the constitu Attorney is a ordained officer who is elected tionally people, never superseded he can as to functions of his except under Section 907 Administrative Code the Act of 1905. May 2, * April 907 of the IX, Article Section Administrative Code 177, §297, May 2, 1905, L. 71 P.S. or the P. Act of D. P. §§817, 818. 351, 71 P.S.

Supersession by Statute Legislative providing supersession aof Acts have Attorney District under certain circumstances protests At vigorous by District been sustained over torney: 397; Pa. Com 97 Commonwealth v. McHale, Superior 292; Ct. Com 38 Pa. monwealth v. Havrilla, Superior Ct. 110 Pa. monwealth ex rel. v. Irvin, 168 A. 868. supra, the McHale,

In Commonwealth v. 97 Pa., (page 406) urged, : “It however, said was quashed properly not because indictments were by signed signed by attorney. They were the district by appointed Guy Parquhar, Esq., specially E. was who try of March 12th under the Act court to these cases, appears appointment Pamph. L. 85. provisions regularly been made accordance with eminently proper, district as the said and was act, general attorney at election a candidate at the was alleged and which the frauds were committed, there would it his It frauds, is increased vote. stated, professional official and fore have a breach of been attorney propriety for him to have acted as district appointment ille But it is these cases. said adopted gal act because the Constitution since the attorney passed, consti makes district 1866 stripped of he and as cannot be tutional such officer, powers by legislature. There little force his is legislature suggestion. may abolish not ibis While regulate They can can it control the officer. office, punish performance of his him mis duties, for case of other officers. And where conduct, neglects from cir act, he or refuses where, improper given indeli is case, cumstances competent legislature it is for for him act, cate remedy. This all that the Act of 1866 to afford a provisions think its are and we does, obnoxious provision.” any constitutional General Supersession Attorney Attorney District by Law Broad Common Under and Virtue of the by General Attorney Powers Even more contention present is the astonishing coun- the District and the Solicitor City others sel the Democratic Committee and unless authorized Attorney General, specifically Attorney. power supersede has no a District statute, over This contention been and dismissed rejected has follow- and over and over this Court. See the again in point specifically directly cases which are ing Dis- reject the clearest and refute the language rel. ex contentions: Commonwealth Attorney’s trict 524; A. Minerd v. 325 Pa. Margiotti, 17, 30, Proceedings Dauphin County Investigation Grand Jury (No. Dauphin Pa. 2 A. 2d 783; 332 1), 289, 298, (No. 3), County Jury Investigation Proceedings Grand 2 A. 2d Matson v. 809; Margiotti, 332 Pa. 358, 362, 365 892; Pa. 88 A. 2d 200, Margiotti Appeal, 371 188, ex rel. 75 A. 2d Commonwealth 465; Pa. 330, 332, 891; Pa. 81 A. 2d v. 368 Margiotti Orsini, 259, 261, 238, v. 396 Pa. and Commonwealth Fudeman, 236, A. 2d 428. 152

In Commonwealth ex rel. v. 368 Margiotti Orsini, “The : (pages 261-262) said Pa., supra, 260, of Dis- superseded General Attorney Pennsylvania in Attorney Allegheny County trict Coun- widespread criminal activities in alleged in- direction and control of a grand jury ty pub- violations law alleged vestigation public employees. supersession officials and The lic Attorney by Attorney General in that the District matter sustained by this Court in Mar- particular A. 365 Pa. 75 2d 465. 330, Appeal, giotti authority Attorney “. . . General in- acts is clearly criminal set forth vestigate ex Com.

643 524; A. 188 Pa. 17, 325 rel. Minerd v. Margiotti, Proceed Investigation Grand Dauphin County Jury Ap Margiotti 2 2d 783; Pa. A. 332 ings (No. 1), Minerd In Com. ex rel. A. 2d Pa. 75 465. 365 peal, Mr. Justice Pa. 17, supra, v. 325 Margiotti, Schaffer review from the : ‘We conclude said (pages 30, 31) authorities historical and other decided cases and clothed with is Pennsylvania General the Attorney Attorneys enveloped powers and attributes which investi the right at common law, including General sev in the proceedings to institute criminal gate acts, indict sign Commonwealth, eral counties of the tes and submit before the appear grand ments, cases criminal try in court and to appear timony, all and, on the behalf, Commonwealth’s district and set aside to supersede these activities such judgment General’s the Attorney when attorney Margiotti In Appeal, necessary.’* action may approval quoted this Court Pa. 330, supra, Coun Dauphin from the opinion language following Proceedings (No. 1), Investigation Grand Jury ty General, : ‘But the 298) (page Pa. 289, supra, Com this Court recognized by vast powers, with his supple 325 Pa. rel. v. Margiotti, 17, may ex monwealth in any investigation; supervise ment so he believes the his to do duty is he may, if —and hindered in conduct to be government lawful and peace detriment security, to the its affairs the District Attor State, supersede order good — ” the entire investigation. . . .’ in the conduct ney of Commonwealth v. case Fudeman, recent In the 238-239) the Court said : (pages (1959), supra Pa., 396 under the common and the that law no doubt “There * Attorney necessity judgment General’s to course Of subject to review Court for an abuse supersession is discretion.

644 At and of Pennsylvania, decisional law statutory* cir under certain power General has the torney and, to violations duty investigate any cumstances, Commonwealth violations of the laws of the alleged he and to a Grand supplement supervise Jury, or act supersede under may, proper circumstances, conjunction with a district attorney. A. 2d 892,

“In 88 Matson v. 371 Pa. Margiotti, 188, con : ‘“We the Court pertinently (pages 200-201) said and historical of decided cases clude from the revieiv General Attorney and other authorities and attributes powers is clothed with the Pennsylvania in at common enveloped law, General Attorneys insti criminal to investigate acts, to cluding right Com in the several counties proceedings tute appear before monwealth, sign indictments, court appear and submit testimony, be and to cases on the Commonwealth’s criminal try im, supersede and all these activities half, mid, Attor in the and set aside the district when attorney neces action may such ney judgment** General’s sary.” “ were General powers ‘These vast opinions County in our in Dauphin further recognized 2 A. No. Pa. 332 Proceedings 289, 298, Grand Jury Grand Dauphin County Jury Proceedings 2d 783; Ap- 2 2d in Margiotti Pa. A. 809; No. 3, 358, 362, 332 v. and in Com. ex rel. Margiotti Pa., [330], peal, in each of reiterated which we [259], Orsini, Pa., super- supplement General may the Attorney under circumstances proper may vise a grand with a district attor- or act conjunction supersede “. . and it if . is his to do so duty then said: ney; “* 177, §904, P. L. 71 P.S. Code Administrative §294. subject judicial exercise of which is re- reasonable **The , view.” government lie in the believes the to be hindered is the the detriment of lawful conduct affairs to its peace good security, order of the ....”’” State pow- Statutory and Common Law Furthermore, Attorney supersede At- er of to District General a wag present recognized torney by reasserted Attorney Pennsylvania. Attorney General General gaid hig Judge reply David in Stahl letter Gold, cage: my very “In who him to in this asked intervene opinion adjudication way or affect [the] could no powers statutory detract and common law from Attorney authority particularly to su- General, persede cageg proper Attorney and set aside District gpecial power appoint digcretionary or coungel investigationg in criminal or criminal Pregident other go proceedingg requested when to do thege powerg appear be Court. of a None of iggue here.” repeated light In re- these declaration and thig gettled iteration Court of the of Penn- well law ig Digtrict incomprehengible gylvania, Attor- it that a ney anyone Attorney General or can contend that an hag apart gupergede power, no from a statute, to ever Digtrict Attorney. interegt happeng public gafety What and wel Digtrict any reason whatsoever both a when fare, Attorney digqualified Attorney or General* are promptly, impartially adequately fail in the to act * heavy duties An General lias burdensome statewide perform, including requests daily from the Governor or members legislature com- or members of the or members of of his cabinet interpretation powers and their missions for an of Statutes and ofttimes For these reasons difficult and duties thereunder. watchdog impossible be all Dis- for him to over the acts of 67 separate Furthermore, Attorneys counties in 67 State. trict personal professional may disqualified inter- because of he ests, dis- the reasons hereinbefore forth for set or for Attorney. qualification District aof be Are the of that to people County circumstances? left To ridiculous. unprotected? answer would be “yes” power Yet unless the Courts have inherent —under in- special appoint those unusual circumstances —to law an entire vestigating prosecuting attorneys, and/or pro- adequate can left be without abiding community Can corruption. tection and redress erime and against so impotent believe that Courts are so and person cannot public of duty they oblivious obvious a require necessary not do whatever may will protect in order to impartial prompt public? a Court Can Appoint Under Certain Circumstances Special Investigating Prosecuting and/or a District

Attorneys Supersede Superior In 141 Pa. Commonwealth v. Brownmiller, indicted Ct. where the Highways Secretary funds using and convicted of wilfully corruptly Supe- political for purposes, Commonwealth Attor- rior Court of the District granted as- of additional for the the Court appointment ney preparation district for the attorneys sistant “the president : (pages 111-112) case. The Court said Quarter Dauphin of the Court of Sessions judge assistants special additional County appointed district . . also authorized the . attorney district [and] . . a coun- typists, . engage, stenographers, attorney three, filing investigators, clerk, ty detective, operator. photostat under our Constitution have certain in-

“The courts which do not powers depend rights solely herent or legislative grants. They constitutional express upon that are reasonably things necessary do all may within justice scope ju- their administration

647 Maxey §171. risdiction: Am. Jur., Courts, Supreme recognized rule now Justice of the Court, Surcharge presiding County when in Re Lackawanna County 12 & In an elabo D. C. Commissioners, 471. opinion rate which included inherent a discussion of powers it is courts he held that within record, scope pay jurisdiction of the court’s to order the required salary employee ment of the of an who was by judge Jus him in assist the administration powers. See, as that tice, is within the court’s inherent 924; Commonwealth 35 A. also, v. 178 Pa. 409, Shaffer, Superior Pa. Edwards v. Prutzman et Ct. al., Lycoming County 165 v. Hall, A. Commissioners 255; p. 7 Watts 290; 15 C.J. 871.” §205, In &York Commonwealth ex rel. Shumaker v. New Pennsylvania Company, 106 2d Pa. A. 378 Inc., 359, (page 369) this hold that Court said : “We do not appointments statutory coverage because of the of such wholly power a court is confined thereto and without appoint attorney to to an to an assistant act as recog attorney. power district inherent been Such has (see 141 Su nized v. Pa. Commonwealth Brownmiller, 907).” perior 14 Ct. A. 2d Dauphin Investigation County Jury In Pro- Grand ceedings (No. 3), supra, Governor where the Pa., Pennsylvania cabinet his and several members of special investigation, subjected to were a power only the Attor- this Court not sustained the ney supersede Attorney, to but di- General a District attorney-at-law appoint to an rected the lower Court perform attorney to the duties district lieu 367) Attorney (page : General. Court said Attorney appointee Governor “The General is an subject by to him. Under such circum- dismissal impulses ordinary neces- sentiments would stances sarily Attorney to General’s tend interfere though might he even fact action, freedom him. succumb to temptations confront which would permit To him to conduct such case would be professional to all contrary standards commendably as the General ethics, himself him this recognizes, presented the brief for, he court, pro- disclaims intention of handling In ceedings personally. event, therefore, court has below shall decide that the district attorney been it will properly appoint superseded, thereupon at law attorney resident another perform county his functions.” How can such an necessary obviously inherent power doubtedf

But we do not need to rely on solely necessity, on the Supreme decisions Court of Pennsylvania and the Superior Court of Pennsylvania support justify power inherent of a Court pro- to maintain, mote and preserve Justice! The Supreme Court of the United States has once recently again pro- strikingly claimed the broad inherent rights powers a Court protect public interest in Baker v. 369 U. S. Carr, In 186. that case the Supreme Court held that a Fed- eral District Court had jurisdiction consider determine whether citizen of Tennessee had been de- nied the equal protection of the guaranteed law Fourteenth Amendment, by reason of of the failure the General of Assembly Tennessee to reapportion the State’s 95 Counties and in particularly the County which the complainants resided. Many decisions of the Federal District Courts have held that a Court in- has power herent to void a reapportionment legislative act and to direct an election at large Congressional and representatives State or to order such an if election the not Legislature does validly and constitutionally reapportion the promptly Districts and in Counties the It State. is clear, that therefore, whenever reasonably protection the necessary Constitutional rights or a preservation Justice, the Court having general ju- right subject risdiction the the inherent matter has rea- and are power things order and direct all that sonably protection for the of the and people necessary preservation the of Justice. made

The in my only not majority have, judgment, no in major mistake that the have holding Courts power inherent to supersede Attorney,* ever a District but also made another mistake.

There is no contention absolutely merit in the office Crumlish has been removed from (or ousted) of District The no court Attorney. assert that majority except remove District accordance may Attorney awith and the from language Sny statute, following der’s 301 Pa. Case, quoted 152 A. 33, is their contention: the Constitution support “Where for the points statute out a method removal methods: public is exclusive of other officer, Apart . from circumstances extraordinary . .” super- exist this case and which justify of the appointed session District Attorney** by Court * Supersession by superses- Quarter Sessions, a Court like subject by Attorney General, is, repeat, sion we course an abuse review this Court where test of discretion error of law. and/or ** testimony Quarter not have to Sessions did hear by of the averments to determine truth District investiga- willing proper ready, was able and to conduct a that he Attorney’s case, promptly in- District In this tion. failure by legislation vestigate allegations City Council, of sale important widespread corruption by alleged graft, and crimes administration, and members Demo- in the of the officials glaring, City Committee, duty so his dereliction of cratic widespread respect a matter of common and knowl- in this super- Philadelphia, edge that under these circumstances his Quarter thoroughly Sessions Court was of the Order session Furthermore, was, justified. petition unquestionably Leonard adversary majority, proceeding according con- only com- sequently averments matters properly knowledge can be considered. mon indisputable investigators prosecutors, an displaced removed or fact that Crumlish has not been Philadelphia County. as District Attorney of Crumlish is still District powers except County con- for and he still all the has — Attorney, investigation ducting a District this one —of salary Attorney. Fur- and he still has his as District perform. he has voluminous duties to still thermore, approxi- prepare example, For he and staff his mately every indictments wit- intervieAV 1,800 month, present in connection therewith and them nesses regular grand jury. monthly evidence to the other try aid sev- of his still has to staff, Crumlish, every Crum- eral hundred criminal cases month} important duty disposing or further lish has the constantly substantially reducing increasing back- log indictments now total over criminal 17,000.

Appeal of D’Ortona questions worthy raised The last of discussion are Appeal of D’Ortona et al. from the order by Judge Quarter Court made Sessions Alessandroni enjoined, City without notice to who, Solicitor, period days, hearing by a committee of three charges against City Griffin. One Council of its publicly charged City that Griffin more Councilmen Special disqualified Coun- Assistant to act as an investigate Council members because sel to alleged bias. his Quarter to the Session

Griffin’s restraining City for an order Council Alessandroni investigation conducting alleged, of him inter from illegal uncon- that such alia, contends that Each side of the actions stitutional. illegal provi- and Adulatedone or more were other side history It has been Constitution. sions questions Country that similar have been raised— our

651 year Washington particularly times a or more —one right of involving questions century, (a) for a i.e., investigate wit- legislative body cross-examine and alleged en- involving (b) questions and nesses, upon branch another one branch croachment powers usurpation alleged and and the Government, Legislature or jurisdiction by Executive or by the Courts. genius and of our Constitution—which success aptly by distinguished British Prime

has been described distinguished Americans** Ministers* and greatest Govern that our document written —is ever system divided is and balances, its of checks with ment, great of Government into branches or divisions three co-equal Executive, which are co-ordinate and —the impos Legislative, found and Judicial. It has been sharply clearly divides sible to a line which draw necessarily great Government, these divisions of overlapping may con from or a there time to time an jurisdiction.*** been current there have Furthermore, these and often be borderline cases each will particular must be decided on own facts.**** its It is clear The instant case is a borderline case. tempo- power right that Courts have the to issue restraining pre- rary Orders without in order to notice, quo protect they serve the or to the Orders which status jurisdiction have made—even when the Court’s chal- lenged v. Mine : United States United Workers Amer- Shipp, 203 290; S. United States 330 U. v. ica, 258, 266, scope re- Moreover, S. 573. this Court’s U. 563, Appeal of D’Ortona et al. in the is limited to view * Bryce. Pitt, Gladstone; E. also Lord William William ** them, Among E. Alfred Smith. *** Dauphin example: County Investigation Jury See, Grand for 342, , (No. %), Proceedings 355-356, 332 Pa. 358. **** McGinley example: Scott, 310, See, v. 401 Pa. 164 A. 2d 424.

852 ground deciding whether there was reasonable temporary Quarter restraining for the order of the Sessions Court: Cf. Slott v. Inc., Plastic Fabricators, 306; cases cited Pa. A. 2d 402 167 therein, v. 2d Pa. A. Lindenfelser, Lindenfelser 626. Whether considered in the

light of Council’s conjunction considered Resolution, surrounding Resolution and all the circumstances, temporary restraining undoubtedly Court’s Order was supported by grounds; reasonable it was not an abuse imperative. indeed it was discretion; unanimously opinion

This Court is that Coun- proper legitimate legis- forth no cil’s Resolution set purpose therefore invalid» lative

Case Details

Case Name: Smith v. Gallagher

Court Name: Supreme Court of Pennsylvania

Date Published: Oct 26, 1962

Citation: 185 A.2d 135

Docket Number: Appeal, 424; Appeal, 425; 327, Miscellaneous Docket 12; 328, Miscellaneous Docket 12

Court Abbreviation: Pa.