Pa.) COMMONWEALTH v. MCAFEE 87 * * * 98 Am. Dec. 272. Etter v. McAfee, 229 Pa. | ration of the tenure. * * It is not with315, 78 Atl. 275. in the power of the Legislature to extend the term of the office and prevent a vacancy. * Holding over * * "In our opinion, there is ample provision in the Constitution itself for the adjustment of the present conditions to the limitation of is not a new or another term, but a projudicial elections to odd-numbered years. longation of the elected incumbent's term. If an election cannot legally be held in NoArticle 5, § 15, of the Constituvember in the year immediately preceding the tion, provides that all common pleas judges termination of a judicial term on the first shall hold their offices for the period of 10 Monday of January of any odd-numbered years. The schedule adopted by the people year, a vacancy will exist which can be to put into effect the amendments of 1909 filled by executive appointment under article 4, 8, of the Constitution, supra, and this appointment will necessarily be followed by an election, either on the first or second succeeding election day appropriate to the office; that is, in November of the first or second succeeding odd-numbered year. Thus, without any new statutory enactment or strained construction of any existing constitutional or statutory provision, the new constitutional limitation of judicial elections can be put into successful operation. It is quite unnecessary to seek for some method other than that which the people have expressly provided in their fundamental law to meet the results caused by the adoption of the late constitutional amendments. Especially is this so when the conclusive inference is, from the schedule extending terms expiring in 1911 to the first Monday in January, 1912, that the people purposely omitted to extend other judicial terms, but left them to the operation of the provisions of the Constitution itself. "We conclude that ample remedy for the present situation is provided by article 4, § 8, of the Constitution. "For these considerations thus hastily and perhaps imperfectly stated, we are of opinion that the relator is not entitled to the relief sought by his petition, and the same is now dismissed at his costs." Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. John G. Johnson, for appellant. D. T. Watson, John C. Bell, Atty. Gen., and ErWatson, John C. Bell, Atty. Gen., and Ernest C. Irwin, for appellee. MOSCHZISKER, J. The objection to the act of March 2, 1911, is that it extends for the period of one year the terms of all judges whose commissions expire on the firs Monday of January in odd-numbered years. In Commonwealth v. Sheatz, 228 Pa. 301, 77 Atl. 547, referring to a term fixed by the Constitution, we said: "The term of office fixed by the Constitution is expressly limited to a definite number of years, and it is not within the power of the Legislature, directly or indirectly, to extend it beyond the prescribed period. ** There is an implied prohibition against the right of the Legislature to add to the term, where the Constitution has expressly prescribed the du * declares: "All judges for the courts of the will create vacancies which it will be the right and duty of the Governor to fill. If the Constitution gives the Governor the power to fill such a vacancy as is here under consideration, since the people failed to say so in words or by necessary implication, we cannot assume that they intended by the amendments of 1909 to change the established rule regarding the time for the election of any of the judges; on the contrary, we must assume that they anticipated the natural legal consequences of their omission to provide for the contingency before us, and that they intended the creation of vacancies and the exercise of the executive prerogative to fill them by interval appointments. The question is, Does the constitutional provision vesting the Governor with the right to fill vacancies apply to the condition which will arise in the event of the expiration of the term of the relator without the prior election of a successor? The proper determination of this case depends upon the answer to that question. [3, 4] After looking at the matter from every standpoint, we are brought to the con the correct one, and that the question must be answered in the affirmative. Article 4, §.8, of the Constitution, as amended in 1909 (P. L. 948), provides: "He [the Governor] shall have power to fill any vacancy * * The suggestion that the difficulty can be the view that the nonelection of successors solved by holding that the judges whose terms expire in odd-numbered years shall have successors elected at the municipal election which will occur 14 months before the expiration of their respective terms is likewise open to constitutional objections. Article 5, 26, of the Constitution, provides that "all laws relating to courts shall be general and of uniform operation." Classification must not only rest upon a plain distinction in the subjects classified, but it must always have a substantial reason back of it amounting to more than a mere convenience. The suggested solution leads to a classification which will destroy uniformity in the election of the common pleas judges, and its effect is permanently to divide such judges into two groups, the members of one to be elected fourteen months, and of the other two months, before the expiration of the terms of their predecessors. The arrange ment would be contrary to the long-established public policy of our state, which allows but a short time to intervene between an election and the assumption of office. This policy has strong practical reasons back of it, particularly in the case of a judge elect-clusion that the view of the court below is ed from the bar, who, after being set apart for judicial work, should not be obliged or permitted, during such a considerable period, to practice his profession for a livelihood. However, these practical reasons would not constitute insurmountable objections, if the proposed classification were a natural one, or one made imperatively necessary by existing conditions. In other words, if the amendments of 1909 left the matter in such a position that the only alternative was to accept the classification, and there was nothing in the Constitution plainly forbidding it, then, ipso facto, the classification and its effect would be there, and the General Assembly could enact proper legislation with reference to it, or, possibly, it might be of sufficient force to annul prior legislation in conflict therewith, such as the act of April 30, 1874 (P. L. 118), which provides that the terms of office of all judges shall commence on the first Monday of January next succeeding their election. But the division is not a natural one; heretofore the only classification of judges known to our law has been founded upon differences in the work performed. The question remains, Is it a necessary one? for under all our cases a new classification will not be permitted, unless there is an apparent reasonable necessity to support it. A classification, for the purpose of applying a different rule or remedy as between persons in the same general category cannot be held to be necessary or permissible, if the situation impelling it is already provided for in our organic law; and the learned court below has held such ** that may happen Pa.) vacancy that may happen elective office. * * * But COMMONWEALTH v. MCAFEE 89 in any ed by the people themselves (Walsh v. Coma per- monwealth, supra; Etter v. McAfee, supra); son shall be chosen to said office at the nor is the objection that it will make some next general election, unless the vacancy of the judges appointive and others elective shall happen within three calendar months sound in law, for limited interval appointimmediately preceding such general election, ments to elective offices have always been in which case the election for such office part of our system, and none of these apshall be held at the next succeeding general pointments will be for more than one year. election." The Governor appointed Walsh The solution works no permanent division less than three months before the date of in the ranks of the judges, as the situation the "next general election," and the relator when thus dealt with is but a temporary one, was elected to the same office at that elec- which will cease to exist after the expiration. "He contended that the design of the tion of the term of the last of the present Legislature * * * was to bridge over the incumbents in 1919. In the meantime the interval between the creation of the county positions of 39 of the 131 judges of the comand the next election, by directing the Gov-monwealth may be affected, unless the people ernor to appoint the new officers;" and "he by another amendment should extend their relied on the second section of the fourteenth terms or provide that judges can be elected article of the Constitution, requiring that 'all in any year. vacancies not otherwise provided for, shall be filled in such manner as may be provided by law.'" We held that "the word 'vacancy' aptly and fitly describes an office when it is first created and has been filled by no incumbent;" that the law had created a vacancy in the office in question within the meaning of the section of the Constitution which vested the Governor with the right to fill vacancies; that the Governor derived his right of appointment from the Constitution, irrespective of the statute; that this constitutional right could not be abridged or interfered with by the Legislature; that the statute would have to be construed with reference to the Constitution; that it was not to be supposed that the Legislature intended to run counter to the organic law, even to bridge over the interval between the erection of the county and the next general election; and that the Governor's appointee would hold the office until the qualification of a successor, elected at the second general election. The meaning of the word "vacancy" was again under consideration in Commonwealth v. Dickert, 195 Pa. 234, 45 Atl. 1058, and it was there ruled that in case of a failure to elect a successor to the incumbent of the office in question "a vacancy exists by reason of the expiration of the term." In Commonwealth v. Sheatz, 228 Pa. 301, 77 Atl. 547, the State Treasurer elect died before qualifying, and at the expiration of the term of the incumbent there was no one to fill the office. We held that there was a vacancy, and that the Governor had the right to appoint. By the light of these cases, the learned court below was right in the view that the inevitable effect of the amendments of 1909 will be to cause the offices of all common pleas judges whose terms expire on the first Monday of January in odd-numbered years to become vacant, and that it will be for the Governor to appoint incumbents to serve until successors are chosen by the people at the next appropriate election. The people may have supposed that the schedule of 1909 comprehended all possible contingencies and made all necessary provisions to carry the constitutional changes into effect without disturbing their right to elect immediate successors to the judges then in office. But the difficulty is, if such was their intention, they failed to say it, or so to express themselves that the Legislature, without violence to other fixed constitutional mandates, could carry out their wishes in that respect. In construing any part of the Constitution, we are not at liberty to disregard other applicable provisions, or to supply words omitted, in order to work out a thought which the people themselves had the opportunity to give expression to, had they so desired; nor can we ignore the authority of our own prior decisions. We must take the law as we find it, and we are constrained to hold that the relator's term cannot be extended by act of assembly; further, that his successor cannot be lawfully elected in the year 1911. To permit either would disregard constitutional inhibitions and read that into the organic law which cannot be found therein; fou while to follow the rule laid down by the learned court below is to conform to the Constitution as it is written and as it has been heretofore construed by this court. It neither takes from nor adds to the Constitution, but simply accepts a remedy there supplied in plain and, under our decisions, unambiguous language. The assignment of error is overruled, and the judgment of the court below is affirmed. FELL, C. J. (dissenting). The term of office of the relator as a judge of a court of common pleas will expire on the first Monday of January, 1913. His successor in office cannot be elected in 1912. The question raised by this appeal is whether he should be elected in 1911 or in 1913. The constitutional and statutory provisions relating to the subject are these: (a) Article 5, § 15, of the The argument that the solution arrived Constitution of 1874, provides that: "All at will postpone the popular choice is of no judges required to be learned in the law, exavail against constitutional provisions adopt-cept the judges of the Supreme Court, shall tion cannot, under the amendment, be held in 1911, and that on the first Monday of January, 1913, a vacancy will exist which must be filled by the Governor. This conclusion is accepted as correct by the majority of my Brethren, but I cannot agree with them. The situation with which we have to deal may be the result of an oversight; but this is by no means clear, for the words of the amendment have but one meaning, and the people deliberately adopted it. The Constitution provides that all judges of the courts of common pleas shall be elected for a term of 10 years, but nothing in the amendment changes this by the remotest implication. Judges are still to be elected for a term of 10 years, and the amendment merely provides that all of them must be elected in oddnumbered years. This means that the election for judges shall hereafter be biennial. The framer of the amendment of 1909 knew that if it should be adopted it would go into effect immediately upon its adoption, and therefore there could be no election of judges in 1910, and vacancies would exist in some districts for the period of one year, 1911. In view of this the schedule consistently provided that all judges holding office at the date of the adoption of the amendment, whose term would end in the year 1911, should continue to hold office for one year longer. As there could not have been by the terms of the amendment an election for judges in 1910, and the first election of them would occur in 1911, the terms of those expiring in January, 1911, were extended one year. This is as far as the schedule goes, and nothing could be plainer than the expressed intention of the people that after the first Monday of January, 1911, all judges must be elected in odd-numbered years and each for a term of 10 years. be elected by the qualified electors of the respective districts over which they are to preside and shall hold their offices for the period of ten years." (b) The act of April 30, 1874 (P. L. 118), fixing the time when the terms of judges shall commence, provides: "That the term of office of Judges of the Supreme Court and other judges learned in the law hereafter elected shall commence on the first Monday of January next succeeding their election." (c) The constitutional amendment adopted in 1909 provides: "All elections for judges of the courts of the several judicial districts *** shall be held on the municipal election days, namely, the Tuesday next following the first Monday of November in each odd-numbered year, but the General Assembly may by law fix a different time, two-thirds of all the members of each House consenting thereto; provided, that such election shall always be held in an odd-numbered year." (d) To avoid inconvenience in carrying into operation the amendment of 1909, the schedule provides: "All judges of the courts of the several judicial districts * * * holding office at the date of the approval of these amendments whose term of office may end in the year 1911, shall continue to hold their offices until the first Monday of January, 1912." (e) On March 2, 1911, an act was passed that provides that: "All judges of the courts of the several judicial districts * * * holding office at the date of the approval of said amendments, whose commissions expire on the first Monday of January in an odd-numbered year, shall continue to hold their offices until the first Monday of January in the following even-numbered year." (f) The Constitution of 1874 empowers the Governor to fill vacancies in judicial offices "happening by death, resignation or otherwise" by appointment, to continue until the first Monday of January next succeeding the first general election that should occur three or more more months after the happening of such vacancy. One of the amendments adopted in 1909 changes the period for which an appointment shall be made by extending it until a successor shall be chosen "on the next electionists for the election of a successor in each day appropriate to such office," according to the amendment making the election in oddnumbered years. The learned judges of the common pleas in dismissing the petition for a writ of mandamus held that the act of 1874 is unrepealed and unmodified by the amendment of 1909, and that its provision fixing the commencement of judges' terms "on the first Monday of January next succeeding their election" prevents an election in 1911; that the schedule to the amendments of 1909 did not by implication extend judicial terms; that the act of March 2, 1911, was an attempt to extend the terms of judges beyond the limits fixed by the Constitution, and is therefore in But, if we assume there was an oversight in limiting the extension of terms to those that would end in 1911 and in not applying it to all terms that would end in odd-numbered years, it does not follow that there will be a vacancy. If an adequate provision ex case, whose term will commence with the expiration of the term of his predecessor, there will be no vacancy. This provision is found by reading together, as we should, the amendment and the act of 1874. The amendment requires an election in an odd-numbered year, the act provides that the term of office shall commence on the first Monday of January next succeeding the election. When judges could be elected at any annual election, the appropriate time to elect was in November of the year immediately prececing the end of their terms. Now that they are to be elected biennially only, and in oddnumbered years, the appropriate time to elect is in November of the odd-numbered Pa.) FAUX v. FITLER 91 The following is the opinion of Ralston, J., will give effect to both the constitutional and statutory provisions and to the declared in the court below: purpose of the people that judges shall be "At the trial the plaintiff produced the elected by them, and that appointments to notes. The defendant, the maker, testified the office of judge shall be limited to the that he had invited the plaintiff, the payee, filling of vacancies happening by death, resig- to join him in a stock speculation; that the nation, or otherwise during the term for plaintiff had agreed, and had given him which a judge was elected. The act of 1874 $3,000 for that purpose, in three different must yield to the Constitution, in so far as it payments; that, when the first money was is inconsistent with the latter. The amend-paid, the plaintiff 'had his private secretary ments are self-operating, and no legislation write out a note for one thousand dollars, is needed to give them effect. To sustain the decree of the common pleas will make more than one-third of the judges of the commonwealth appointive for a period of years. It is inconceivable that there was an intention to divide the judiciary of the state into classes by establishing a system making a part elective and a part appointive. That there are practical objections to the election of a judge 14 months before the beginning of his term of office is of course to be conceded, but the people have so willed, and it is not for courts to set their will aside. Their intent, as expressed in the amendment, is free from all ambiguity, and I can see no justification for the substitution by implication of a different intent, not suggested by a word in the amendment. Unwise legislation is bad enough, but worse than it is its attempted correction by the courts. One is wrong in practice; the other is radically wrong in principle. It is not for courts to say what the law should be, but what it is, and to leave its correction to those on whom that duty devolves. which I signed.' His testimony then I proceeded as follows: 'Q. What, if anything, was said by you or him as to that note at the time it was drawn up and signed? A. Well, he persuaded me to sign it because he thought it would be a good thing for him to have in case anything occurred to either of us-he should die or I should die. It would be sort of a memo for his estate to have in case of the death of either. Q. What was said about the note at the time it was signed? A. At the time it was signed I think I expected to close up the account before three months. don't think anything was said about it.' Concerning the second and third notes, the witness testified: 'A. Well, he just asked me to sign this note in each case. There was a note to sign in each case. Q. What agreement, if any, was there between you two men at the time you signed that note, as to what that note should be? A. Why, it was a verbal agreement that the note should be considered as a memorandum of the loan of the money. He said that it was understood between them that the notes were mere memoranda of the transaction, a sort of receipt for the money.' Further: 'Q. What, if anything, was said about your paying the note back, paying the amount of the note? A. Nothing at all.' In describing the stock May 17, transactions the witness said: 'I would put up a certain sum of money and the broker would loan the balance and charge interest on it, and buy the stock, and he held the stock certificates as security for the money he advanced.' Referring to the stock thus purchased, he said: 'I didn't pay for them, but I bought them outright.' BROWN, J., concurs in this dissent. 1. EVIDENCE (§ 444*)-PAROL EVIDENCE. A maker of notes cannot defeat his liability thereon by evidence that they were mere memoranda between him and plaintiff of a joint-stock speculation, and that he was not to be called up on to pay in the event of a failure to come out whole on the transaction. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1929-1944; Dec. Dig. § 444.*] 2. GAMING (§ 49*)-DEFENSE TO NOTES-GAMBLING TRANSACTIONS. Recovery on notes cannot be defeated on the ground that they were given in gambling transactions, where the maker's own testimony shows that the stock dealings in question were not of such character. [Ed. Note.-For other cases, see Gaming, Dec. Dig. § 49.*] "The plaintiff denied absolutely that he had any interest in the defendant's stock speculations, or that there were any outside conditions concerning the payment of the notes. He testified that the notes simply represented three separate loans to the defendant for their face value, none of which had been repaid. "The verdict was for the defendant; but Appeal from Court of Common Pleas, Phil- the court below entered judgment n. o. v. in adelphia County. Action by William J. Faux against Alfred E. Fitler. From a judgment for plaintiff notwithstanding the verdict, defendant appeals. Affirmed. favor of the plaintiff for $4,587, representing the principal of notes with interest." Argued before FELL, C. J., and MESTRFZAT, POTTER, STEWART, and MOSCHZISKER, JJ. **For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |