Opinion
October 31, 1940.
November 6, 1940.
Constitutional law — Statutes — Title — Magistrates — Age — Act of May 10, 1927, P. L. 866.
1. Section 8 of the Magistrates' Court Act of May 10, 1927, P. L. 866, which provides an age requirement for magistrates, is not unconstitutional on the ground that the subject matter of the Act in this respect is not adequately and clearly expressed in its title, as required by Article III, section 3, of the Constitution. [64-5]
Constitutional law — Legislative power — Magistrates — Age requirement — Reasonableness — Person not of prescribed age at commencement of term of office — Act of May 10, 1927, P. L. 866.
2. Section 8 of the Magistrates' Court Act of May 10, 1927, P. L. 866, is not unconstitutional on the ground that the legislature has no authority to impose an age qualification upon a constitutional office where the Constitution itself has not done so. [65-6]
3. Power not expressly withheld from the legislature inheres in it, and this is especially so when the Constitution is not self-executing. [66]
4. Section 8 of the Act of 1927, in providing that magistrates shall be at least thirty-five years of age, is not unconstitutional on the ground that the age requirement fixed is unreasonable, arbitrary and capricious and, therefore, an invalid exercise of the legislative power. [63-4]
5. The courts have no authority to interfere with the discretion of the legislature in the exercise of its power to prescribe an age qualification for magistrates, except where its action is so manifestly arbitrary and capricious as to amount to an abuse of the discretion conferred. [63]
6. To be unreasonable and capricious, an age qualification must be such as to so limit the electorate's field of choice in that respect as either, altogether to prevent the filling of the office, or, to establish a basis of classification as to age which bears no rational relationship to the functions and requirements of the office to be filled. [63]
7. Under section 8 of the Act of 1927, a person elected to the office of magistrate is disqualified from holding the office if he has not reached the prescribed age on the date when his term of office begins. [62]
Quo warranto — Public office — Burden of proof — Personal qualification of respondent.
8. In quo warranto proceedings instituted by the Commonwealth, the burden of proof to show good title to public office is upon the respondent. [72]
9. Such burden is not met by producing a commission from the Governor or a certificate of election where the challenge is to some personal qualification of the respondent. [72]
Argued October 31, 1940.
Before SCHAFFER, C. J., MAXEY, DREW, LINN, STERN and PATTERSON, JJ.
Appeal, No. 294, Jan. T., 1940, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1939, No. 3202, in case of Commonwealth ex rel. Charles F. Kelley, District Attorney, v. E. David Keiser. Judgment affirmed.
Quo warranto. Before GORDON, P. J.
The facts are stated in the opinion of the lower court, by GORDON, P. J., as follows:
This action in Quo Warranto is before us on a rule for a new trial and on motions filed by both the Commonwealth and the respondent for judgment in their respective favors on the whole record. The Commonwealth challenges the right of the respondent to hold the office of magistrate of the City of Philadelphia on the ground of age, and the jury rendered a special verdict on that issue of fact, finding that he was born on January 6, 1905. The respondent was elected a magistrate at the General Election in November, 1939, for a term of six years, beginning January 1, 1940. In due course he received his commission as such magistrate from the Governor of the Commonwealth, and on January 6, 1940, subscribed to the oath and assumed the duties of his office before a judge of the Court of Common Pleas of Philadelphia County. Thereafter, the present proceeding in quo warranto was instituted by the Commonwealth on the relation of the District Attorney to try the respondent's title to the office in question. No objection is raised to the regularity of the respondent's election, and the only ground upon which his qualification to hold office is challenged is that, when his term began, he did not possess the age qualification of 35 years prescribed by the Magistrates' Court Act of May 10, 1927, P. L. 866.
In his answer to the writ, the relator averred that he became 35 years of age prior to January 1, 1940, and hence was not disqualified to hold the office to which he had been elected. Under the pleadings, therefore, the only issue of fact to be determined by the jury was the date of the respondent's birth. At the trial the respondent submitted testimony that he was born on January 6, 1904, while the Commonwealth's evidence indicated he was born on January 6, 1905, and the verdict of the jury has now established that he was born on the latter date, and thus did not attain the required age until five days after his term of office began.
The respondent now moves for a new trial and for judgment in his favor on the whole record, grounding the latter motion upon the contention that the Act of Assembly fixing the age qualification of 35 years for incumbents of the office of magistrate is unconstitutional for reasons which will be hereafter discussed, and hence that, there being no lawful age limit for magistrates, he is not disqualified to hold the office in question regardless of the correctness of the jury's finding as to his age. The Commonwealth, on the other hand, moves for judgment of ouster against the respondent on the whole record on the ground that, the verdict of the jury having established that he did not become 35 years old until five days after his term began, he is disqualified under the Act of 1927 from holding the office.
Although the respondent has assigned thirty-five reasons in support of his rule for a new trial, the oral argument before the court en banc was devoted entirely to the questions of law raised by the motions for judgment on the whole record, and while the rule for a new trial was not abandoned by the respondent, it could not have been more completely ignored at the oral argument had it been formally withdrawn. However that may be, our consideration of the numerous reasons assigned, together with the references to them in the briefs submitted, satisfies us that they are without merit and do not require detailed discussion. The trial was free from substantial error, and the verdict of the jury was fully justified by the evidence presented. We have no doubt from a careful reading of the testimony that the respondent was born, as the jury found, on January 6, 1905, and that any other verdict would not have reflected the truth with respect to that disputed question. Accordingly the respondent's rule for a new trial is discharged.
We come now to a consideration of the motions for judgment on the whole record, under which it must be taken as settled by the jury's verdict that the respondent became 35 years of age on January 6, 1940. If, therefore, the Magistrate's Act of 1927 is constitutional, and if also, as contended by the Commonwealth, a magistrate must possess the age qualification of 35 years prescribed by that Act during the entire term for which he is elected, the Commonwealth's motion for judgment of ouster on the whole record should be granted. On the other hand, if the Act is unconstitutional in respect to the age qualification established by it, or, if constitutional, a magistrate-elect is only required, as contended by the respondent, to possess the qualification at the time he subscribes to the oath and assumes the duties of the office, regardless of when the prescribed age is attained, the respondent's motion for judgment on the whole record should be granted and that of the Commonwealth dismissed.
The respondent challenges the constitutionality of the age requirement for Magistrates upon three grounds: first, that the subject matter of the Act of 1927 in this respect is not adequately and clearly expressed in its title, as required by Article III, Section 3, of the Constitution; second, that the Legislature has no authority to impose an age qualification upon a constitutional office where the Constitution itself has not done so; and, third, that, even if the Legislature has the constitutional power to impose such a qualification, the age of 35 years fixed by the Act of 1927 is "unreasonable, arbitrary and capricious," and, therefore, is an invalid exercise of the power.
With respect to the last of these grounds, namely, the alleged unreasonableness of the Act, it will be sufficient to point out that, if the Legislature has the power to prescribe an age qualification for magistrates, the Courts have no authority to interfere with its discretion in the exercise of the power, except where its action is so manifestly arbitrary and capricious as to amount to an abuse of the discretion conferred. To be unreasonable and capricious, an age qualification must be such as to so limit the electorate's field of choice in that respect as either, altogether to prevent the filling of the office, or, to establish a basis of classification as to age which bears no rational relationship to the functions and requirements of the office to be filled. For example, an age limit which is so extreme in either direction as to render the office available only to juvenile ineptitude or senile incompetence would be manifestly arbitrary and capricious. But unless the qualification established is of such a character as to necessarily defeat the constitutional end in view, we have no power to interfere with the exercise by the Legislature of its judgment and discretion in carrying out the constitutional mandate.
Judged by this standard we see nothing unreasonable or capricious in the age qualification prescribed by the Act of 1927. The functions of a judicial officer such as a magistrate, which demand, for their acceptable discharge, the exercise of powers of intellect, judgment and sagacity which are ripened by time and developed by experience, manifestly justify the establishment of an age qualification for the office. And who shall say what particular age is best calculated to produce the desired fitness; what period of preparation in the crucible of adult life will give the State the richest return in efficient service? This question is left by law to the wisdom of the Legislature. Within the limits of reason its judgment is final, and the age established by the Act of 1927 is so clearly reasonable and within a proper exercise of legislative power that to strike it down as arbitrary and capricious would constitute an unwarranted intrusion into the functions and prerogatives of the Legislature. We see no merit, therefore, in this objection to the validity of the Act of 1927.
Neither can we agree with the respondent's contention that the section of the Act fixing an age qualification for magistrates is not sufficiently expressed in its title. An age limit has been included in all the legislation dealing with Magisterial qualifications since the creation of such courts by the Legislature in obedience to the constitutional direction. The first Act establishing those courts was that of May 25, 1874, P. L. 224. In it, and the succeeding Act of Feb. 5, 1875, P. L. 56, the age qualification was fixed at 25 years, and that remained the age limit for magistrates until the passage of the Act of May 10, 1927, P. L. 866, which raised it to 35 years, where it has remained to the present time. The Act of 1874 was entitled "An Act relative to the establishment and jurisdiction of Magistrates' Courts in the City of Philadelphia." This language, with certain additions not relevant to the question now under consideration, was repeated in the title to the Act of 1875, and the titles of subsequent Magistrates' Court Acts, including the Act of 1927, consistently followed the language employed in the earlier titles. In the more than half a century during which these Acts have been in operation, their provisions as to age qualification have been uniformly recognized and obeyed, and their constitutionality with respect to the sufficiency of their titles has never been challenged. While this does not in itself settle the question thus belatedly raised by the present respondent, it is certainly a persuasive indication of the sufficiency of that title to give notice of such a subject matter. The establishment of a Court necessarily involves suitable provision for a judicial officer to preside over it as well as a definition of its jurisdiction and powers. Without the officer the Court cannot operate, for it consists of the officer invested with power appropriate to its functioning, and a title which declares an Act to be "relative to the establishment and jurisdiction" of a Court clearly gives notice to all seeking information on the subject that it will contain provisions setting up and defining the characteristics of the judicial office being established. The title to the Act of 1927 does not, therefore, offend against Article III, Section 3, of the Constitution.
The respondent's second objection to the validity of the act, that the Legislature cannot impose age qualification for holding a constitutional office where that instrument itself has not done so, ignores the nature of the Magistrate's Court clause of the Constitution. That clause (Article V, Sec. 12) has been held not to be self-executing: In re Cahill, 110 Pa. 167. It does not create either the Court or the office; it merely provides that "in Philadelphia there shall be established" a certain number of Courts not of record which "shall be held by magistrates." Being only a direction to the Legislature to establish the Courts, we think that, in doing so, its power to prescribe qualifications for incumbents of the office is plenary, at least when, as in the present case, the Constitution itself is silent upon the subject. It is argued that, because the Constitution creates many public offices as to some of which (such as governor, members of the General Assembly, etc.,) it has established age qualifications, while as to others (such as Judicial Offices) it has refrained from doing so, a constitutional purpose is thereby disclosed to leave the latter offices open to all adult citizens, without qualificational restrictions. This argument overlooks the general principle of interpretation applicable to a state, as distinguished from the Federal, constitution, that powers not expressly withheld from the Legislature inhere in it, and this is especially so when the Constitution is not self-executing. The sovereign power of the people to create, through their representatives, offices deemed necessary for the public welfare includes the power to prescribe proper qualifications for their tenure, and, unless expressly restricted, this power should be unhampered by inferential limitations upon its exercise, whether the Legislature be acting upon its own initiative or in obedience to a constitutional mandate. We see no constitutional bar, therefore, to the establishment by the Legislature of an age qualification for magistrates, and in this respect we hold the Act of 1927 to be constitutional.
This brings us to a consideration of the final question in the case, namely, whether the respondent is disqualified from holding the office to which he was elected because he had not reached the prescribed age of 35 years on January 1, 1940, when his term of office began, and did not attain that age until five days later, when he took the oath and assumed the duties of the office on January 6, 1940. The question as to when a person elected or appointed to office must satisfy a constitutional or statutory requirement relating to qualifications is quite confused, both in this state and elsewhere. Upon this subject there seem to be two principal lines of authority: one holding that the qualification is determined as of the date of election, and the other, as of the commencement of the term. There are also a few authorities holding that the officer need not be qualified prior to taking the oath of office, while other cases hold that it is sufficient if the qualification exists at the time the proceedings are brought to test his title. While these apparently conflicting cases may not be completely reconcilable, we think that they can in the main be harmonized by classifying them according to the nature of the qualification and the character of the office involved. In the early case of Commonwealth v. Pyle, 18 Pa. 519, these cases were classified in the following manner, at p. 521: "Where the constitution or a statute declares that certain disqualifications shall render a person ineligible to an office, he must get rid of his disqualification before he is appointed or elected. . . . But if the law merely forbids him to hold or enjoy the office, or exercise its duties, it is sufficient if he qualifies himself before he is sworn." Subsequent cases have more precisely defined the latter class and the test has been declared to be whether the officer is qualified prior to the commencement of his term, rather than before he is sworn. Thus it was stated in Mosby v. Armstrong, 290 Pa. 517, at p. 524: "where 'the law merely forbids' one 'to hold or enjoy' an office . . ., it is sufficient if the candidate becomes qualified before the time arrives for him to assume the post in question."
In 88 A.L.R., 812, it is noted that great conflict of opinion exists on this problem, but that, even where eligibility is not determined as of the date of election, courts "are inclined to hold that removal of disqualifications before the time fixed for commencement of the term of office qualifies the incumbent." A number of Pennsylvania decisions are there cited in support of this proposition.
A few cases in this state hold that the disqualification may be removed after the commencement of the term, but these all involve the holding of incompatible offices under circumstances where the constitution or statute failed to provide a penalty therefore. In them, the court held that, if the officeholder makes a choice between the incompatible offices and can so answer at the time of quo warranto proceedings, he may continue in the office he has chosen: DeTurk v. Commonwealth, 129 Pa. 151; Commonwealth v. Kelly, 255 Pa. 475; Commonwealth v. Snyder, 294 Pa. 555. These cases dealing with incompatible offices are clearly distinguishable from cases involving such fundamental a priori qualifications as age, citizenship, domicile and the like. The former involve conditions of holding the office, the latter prerequisites for assuming it. Thus, in the case of age and similar qualifications, it was held in Spitzer v. Martin, 100 A. 739 (Md. 1917), that this qualification must be possessed at the date of election.
Ultimately, of course, the whole question of the date at which a qualification must be possessed is to be determined by the statutory provision prescribing it, and Section 8 of the Magistrates' Act of May 10, 1927, P. L. 866, significantly links the requirement that a magistrate must be 35 years of age with other provisions clearly relating to the date of election: It reads: "The said magistrates shall be at least thirty-five years of age, and shall have resided for at least five years immediately preceding their election in the City of Philadelphia, and must be natural born citizens, or naturalized citizens for at least ten years, and shall be qualified voters thereof." The provisions of this section, other than those relating to age, expressly refer to the date of election, and there would seem to be no reason for including the age provision in the same section with them, rather than in other sections, such as Section 9, which prohibits a magistrate from practicing law, unless the Legislature intended to require a magistrate to be 35 years old when elected, or at least at the time his term begins.
Undoubtedly Sections 8 and 9 fall respectively into each of the two classes of qualifications set up in Commonwealth v. Pyle, supra, and this classification, recognized in the Act of 1927, is followed in the new Magistrates' Court Act of June 15, 1937, P. L. 1743, No. 368, in which Section 8 of the Act of 1927 continues unchanged, and Section 9 is superseded by Section 3 of the later Act. Section 3 provides that: "No magistrate shall personally engage in any other business or profession, or hold any other public office, or serve as a representative of any political party, in any assembly district, senatorial district or congressional district, or on the executive committee, or any other governing body of any political party organization. Each of the magistrates shall devote his entire time and attention to the duties of his office, and no magistrate, clerk, stenographer or other officer or employee provided for herein shall demand or receive any money or other thing of value for the performance or non-performance of any of the duties pertaining to his office other than fees and compensation allowed by law." Obviously none of these requirements relate to the date of election, and hence are conditions of holding the office, violations of which disqualify the incumbent, and fall within the second class set forth in Commonwealth v. Pyle.
Another consideration important to the problem before us is that the Constitution itself recognizes officers as holding their offices from the beginning of their terms, or immediately on appointment, for it provides in Article VII that, "Senators, Representatives and all judicial, State and County officers shall, before entering on the duties of their respective offices" take the prescribed oath of office, and that "any person refusing to take said oath or affirmation shall forfeit his office." By this language the taking of the oath is merely a prerequisite for "entering upon the duties" of the office; not for holding it. Had the Constitution considered the office as not being held until the oath is taken, it would have more aptly required officers to take the oath "before assuming their offices," rather than before "entering upon the duties" of their offices, and would have decreed a refusal to take the oath to work a forfeiture of the right to the office, rather than of the office itself. The careful draftsmanship manifested in the language thus employed forces the conclusion, in our judgment, that an officer legally enters upon his office when his term begins, regardless of when he takes the prescribed oath; and, while neither the 1927 nor the 1937 Magistrates' Court Acts expressly provide that a magistrate-elect shall hold the office prior to taking the oath, Article VII of the Constitution governs the question, and operates to produce this result.
Apart from the Constitutional aspects of this question, the law generally requires a candidate for public office to possess the prescribed qualifications at the time of his nomination or election, except where the disqualifying circumstance is such that it is certain to be removed (as in the case of age) before the time for assuming the office arrives. As was said by Mr. Chief Justice VON MOSCHZISKER in Mosby v. Armstrong, 290 Pa. 517 :
"It may be, as decided in certain cases, that where one seeking nomination for, or election to, an office, is unquestionably ineligible for the position owing to a disqualifying cause of which he, by some action of his own, may rid himself, the law requires him to take such action before his nomination or election; and this for the reason that it will not be assumed the electors intended to run the risk of the removal of the disability between the date of the candidate's election and the day fixed for the commencement of his official term. But that reason is inapplicable to this case; here, the elector runs no such risk, for, in the poetic language of senior counsel for appellees, on the day of the election everyone will know (as presumably was known theretofore) that, so far as the present question of eligibility is concerned, 'the stars in their courses will have him (the candidate) qualified and ready when the time comes to take the office.' "
To permit an ineligible candidate-elect to delay entering upon the duties of his office after his term begins, until the disability is removed by time or at his own caprice, would work a species of fraud upon the electorate, and pro tanto create an interregnum in office incompatible with that continuity in government which is essential to its proper and efficient functioning. This respondent was elected for a term of six years beginning January 1, 1940. When he submitted himself to the people for election, he deceptively declared in his nomination papers that he was qualified to hold the office he sought, and it may be assumed that those who voted for him did so in the mistaken belief that the candidate of their choice would be legally capable of holding the entire term for which they were balloting. That they were deceived with respect to a matter of days, rather than of months or years, is a difference in the extent of the deception, not in its nature. Its effect in either event was to bring about the election of one who could not, by any act of his own, or in any possible circumstances, remove the disqualification so as to completely fill the office for which he was standing, and to which he had been elected by a misinformed constituency.
From the standpoint of the public interest in the continuity of office, it is equally important that an elected officer shall be eligible to hold the office from the beginning of its term. Circumstances such as illness, unavoidable absence at the beginning of the term and the like, may excuse his entering upon the duties of the office immediately, so that he may not be removable for failing to do so. But he cannot require that an office, the public need for which is sufficiently evidenced by its creation and existence, shall remain vacant for any length of time while he is qualifying himself to assume it. This is not the case of an office with an indefinite term which may begin at any time, and in which, therefore, it is sufficient if the disqualification has been removed when the writ issues to test the incumbent's right to hold it. The term of a magistrate is fixed, with a definite beginning and ending; and we therefore conclude that the respondent, having lacked the required age of 35 years when his term began, is ineligible to hold the office to which he was elected, and into which he is now unlawfully intruding.
Accordingly, the respondent's motion for judgment in his favor on the whole record is dismissed, and that of the Commonwealth is granted. Let the writ of ouster issue forthwith.
Respondent appealed.
Errors assigned, among others, related to various rulings on evidence and to excerpts from the charge of the trial judge.
Thomas I. Guerin and Thomas D. McBride, with them Thomas I. Minnick, Jr., and Angelo L. Scaricamazzo, for appellant.
Marshall H. Morgan, with him Gabriel D. Weiss and John H. Maurer, for appellee.
The judgment is affirmed on the opinion of the able President Judge of the court below.
We add, because the question was argued before us, although apparently not in the court below, that the burden of proof to show good title to the office, quo warranto proceedings having been instituted by the Commonwealth, was upon respondent: 11 Standard Penna. Practice 294; 51 C. J. 355. See also Com. v. Commercial Bank, 28 Pa. 383. The burden is not met by producing a commission from the Governor or a certificate of election where the challenge is to some personal qualification of the respondent.