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SMITH v. GALLAGHER (10/26/62)

October 26, 1962


Appeal, No. 424, Jan. T., 1962, from decree of Court of Common Pleas No. 6 of Philadelphia County, docketed Court of Common Pleas No. 2, June T., 1962, No. 4588, in case of Beatrice M. Smith v. James A. Gallagher et al. Decree affirmed.


David Berger, City Solicitor, for appellants.

W. Wilson White, in propria persona, and for F. Hastings Griffin, Jr., intervening appellants.

Herbert A. Fogel, with him David O. Maxwell, for Republican Alliance, intervenor, in support of appellants.

Louis Lipschitz, for appellee.

Thomas D. McBride, with him Herbert S. Levin, for Democratic County Executive Committee, intervenor, in support of appellee.

Appeal, No. 425, March T., 1962, from interlocutory order of Court of Quarter Sessions of Philadelphia County, March T., 1962, Misc. No. 279, in re petition of Robert L. Leonard et al. Order declared void.

Petition for summoning of special grand jury. Orders entered convening special grand jury and appointing "special prosecutor" and supplemental order entered restraining a city council investigation, orders by ALESSANDRONI, P.J.

David Berger, City Solicitor, for appellant.

Robert M. Landis, for appellee, F. Hastings Griffin, Jr.

Original Jurisdiction, No. 327, Miscellaneous Docket No. 12, in case of W. Wilson White v. Honorable Joseph E. Gold, Honorable Victor H. Blanc, and Honorable Bernard J. Kelley. Petition for writs of mandamus and prohibition denied.

Petition for writ of prohibition and mandamus filed by "special prosecutor".

W. Wilson White, petitioner, in propria persona.

Original Jurisdiction, No. 328, Miscellaneous Docket No. 12, in re petition of James C. Crumlish, Jr., District Attorney of Philadelphia County, for writ of prohibition. Petition granted.

Petition for writ of prohibition filed by District Attorney.

Edwin P. Rome, Special Counsel, with him James C. Crumlish, Jr., District Attorney, in propria persona, for petitioner.

F. Hastings Griffin, Jr., with him W. Wilson White, in propria persona, for respondents.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Keim, JJ.

Author: Musmanno

[ 408 Pa. Page 556]


Four cases are involved in this appeal and they all will be disposed of in one opinion. One has to do with an appeal from the Court of Common Pleas No. 6 of Philadelphia County, another is an appeal from an interlocutory rule and order of the Court of Quarter Sessions of Philadelphia County, a third is an application by W. Wilson White, Esq., to this Court for a writ of prohibition and mandamus directed to Court of Common Pleas No. 6, and the fourth is another application to this Court's original jurisdiction presented by James C. Crumlish, Jr., district attorney of Philadelphia County, seeking a writ of prohibition directed to Judge EUGENE V. ALESSANDRONI and W. Wilson White, Esq.

All these proceedings are predicated on certain actions taken in the Court of Quarter Sessions of Philadelphia County beginning in March, 1962 and running into September, 1962. Those actions lack legality and cannot be allowed to stand. An asserted "Special Grand Jury" was ordered, for which there is no warrant in law; an attorney was appointed as "Special Prosecutor," and office which does not exist; an investigation was directed without limitation as to subject matter or time, contrary to the most fundamental precepts of precision in the administration of the law; a constitutional officer, duly elected by the people of Philadelphia County, was displaced from office, without

[ 408 Pa. Page 557]

    due process; additional personnel was employed, supplemental quarters were rented, new facilities were obtained, all at the expense of the taxpayers when personnel, quarters and facilities for the contemplated action were already in existence.

The facts follow. On March 22, 1962, a petition addressed to the judges of the Court of Quarter Sessions of the Peace of the City and County of Philadelphia, signed by Robert L. Leonard and other "citizens, taxpayers and residents" of Philadelphia, was filed with the clerk of quarter sessions, averring widespread violations of law in the government of the City of Philadelphia and that the district attorney, James C. Crumlish, Jr., was unable or unwilling to cope with the situation. The petition prayed that the grand jury be instructed to investigate into the matters therein described.

The petition came into the hands of Judge GUERIN, assigned to Quarter Sessions Court No. 4 (Bail Arraignment Court), which court was charged with conducting all miscellaneous business coming before the Criminal Courts*fn1 of Philadelphia County for the month of March, 1962.

It is to be noted at the outset that pursuant to Article V, § 8 of the Pennsylvania Constitution, the Board of Judges of Philadelphia County, made up of 21 judges, details for each succeeding month a court of common pleas (consisting of three judges) to the criminal court to conduct, supervise, direct and handle all matters pertaining to the grand jury which convenes in Room 653, City Hall, known as Quarter Sessions Court No. 1. Court of Common Pleas No. 7 was designated to that duty for the month of March. Within No. 7 itself, it was decided that President Judge

[ 408 Pa. Page 558]

SLOANE would preside in Room 653 for the weeks beginning March 5th and March 12th and that Judge GLEESON would preside for the weeks beginning March 19th and March 26th. Thus Judge GLEESON was presiding in Room 653 from March 19th until the termination of the March term.

For a reason never explained, the petition of Robert Leonard et al. (hereinafter to be referred to as the Leonard petition), was not presented to Judge GLEESON but went to Judge GUERIN in Quarter Sessions Court No. 4, that division of the court, as above stated, which administers all miscellaneous business of the court. It is obvious that by no liberal construction of language can the summoning of a grand jury be regarded as a miscellaneous item. "Miscellaneous" connotes odds and ends of affairs: remnants and scraps, heterogeneous and promiscuous. In the classification of what is important, a grand jury investigation is not to be found in the heterogeneous and promiscuous scraps of a court's activities.

On March 30, 1962, Judge GUERIN ordered a hearing on the petition in Courtroom 646 for April 27, 1962. The record does not disclose how it came about that as Judge GUERIN*fn2 finished his term of service in criminal court the Leonard petition did not revert to Quarter Sessions Court No. 1, its logical depository, but instead came into the hands of Judge ALESSANDRONI, President Judge of Court of Common Pleas No. 5 who now succeeded Judge GUERIN in the Miscellaneous Division (Court No. 4) for the month of April. Among the incongruities in the history of this case, no light is shed on the inevitable query as to why Judge ALESSANDRONI, once he perused the Leonard petition, and, being thoroughly conversant with the division of duties and responsibilities in the criminal court, did

[ 408 Pa. Page 559]

    not himself immediately refer the petition to Judge GRIFFITHS, who was ready to instruct the grand jury in Court No. 1 during the entire month of April.

On April 13, 1962, the District Attorney of Philadelphia County filed an answer to the Leonard petition in which he denied that he was unable or unwilling to meet the situation outlined in the petition. He also made factual averments in support of his assertion that he had been and was fully capable of performing properly the duties of his office.

On April 27, 1962, when the Leonard petition was argued before Judge ALESSANDRONI, Attorney Fogel, representing the Republican Alliance which had initiated the Leonard petition, stated that Judge ALESSANDRONI would not have jurisdiction over the petition in the event his term in the Court of Quarter Sessions expired before it was acted upon, and he recommended that Judge ALESSANDRONI enter into a concord with other judges to obtain authority to charge any grand jury which might be convened for the purpose of conducting an investigation. Judge ALESSANDRONI stated that that could not be done. The colloquy was as follows: "MR. FOGEL: The point, sir, is that Your Honor may come to a determination in the matter when Your Honor might not then be sitting in the Court of Quarter Sessions, and not being in the Court that has jurisdiction over the Grand Jury, I would like to make sure that there would be no objections interposed if Your Honor should determine that special instructions should be given and that Your Honor have jurisdiction and the power to convene a special Grand Jury so instructed. THE COURT: Mr. Fogel, I admire you for raising a question of that kind. However, I don't see how that can be waived."*fn3

Mr. Fogel commented: "I think it was done before Judge ALEXANDER as to that point." And then Judge

[ 408 Pa. Page 560]

ALESSANDRONI, in the following language, definitively took himself out of the possibility of convening a grand jury: "THE COURT: Even if they agreed maybe on some other constitutional basis - in other words, a Grand Jury summoned by this Court, would have to be summoned within the jurisdiction of my term. I would still have to be a Quarter Sessions Judge. However, my term ends the first Monday in May. I don't think I can extend my jurisdiction beyond that."

Judge ALESSANDRONI'S term as quarter sessions judge ended, as he himself stated it would, on the first Monday of May, and he returned to the court of common pleas. Before quitting the criminal court he had made no definitive decision on the Leonard petition and he did not pass it on to his successor in the miscellaneous branch of the court, as Judge GUERIN had bequeathed it to him. Nor did he make any effort to call it to the attention of Judge DOTY who was now presiding in Criminal Court No. 1 and who stood ready to charge the grand jury on all matters which required action. The month of May wended its accustomed way through the calendar and then came June which in due time melted into July, but during all this time the Leonard petition was ignored, neglected and unmentioned.

As indicated, Judge GRIFFITHS had charge of the grand jury in April, he was followed by Judge DOTY in May. Judge DOTY, in turn, was succeeded by Judge ULLMAN for the month of June and when Judge ULLMAN had completed his assignment Judge SPORKIN assumed command of the grand jury for July. It would have been a simple matter to refer the Leonard petition to any of these judges to determine the question of a grand jury investigation.

From March 22nd to July nothing happened on the Leonard petition, and in the meantime the cobwebs of inaction formed their inevitable film of obliteration

[ 408 Pa. Page 561]

    over form and substance. Undue passage of time nearly always works adversely in the ascertainment of truth. Where there is any controversy, truth is a ripe fruit which must be timely picked. After maturity passes, disintegration sets in. Memory fades, and what is worse, it often enters into the shadowland of guesswork, loss of focus and even unconscious distortion. In addition, deaths, translocations and other mutations also make holes in the fabric intended to reproduce in testimony what has occurred in fact.

Of course, some delays in law are inevitable but this was not the case here. The record does not offer the slightest explanation as to the reason for the inert lodgment of the Leonard petition from March until July 11, 1962. The only possible explanation for this inertness, consistent with adherence to judicial responsibility, is that the judge was in grave doubt as to whether there should be a grand jury investigation. Finally, on July 11th, under the heading of Quarter Sessions Court, March Session, 1962, Miscellaneous Docket No. 279, Judge ALESSANDRONI ordered what he called a "Special Grand Jury." But even then, another protracted procrastination intervened. The July grand jury, under the presidency of Judge SPORKIN, was in session, ready and prepared to take action, but the learned judge of Court of Common Pleas No. 5 ignored the established machinery of the court. He passed over Judge SPORKIN. Judge SPORKIN, in the grand jury courtroom, was followed by Judge HAGAN who was to conduct all grand jury business for the month of August. Judge ALESSANDRONI was indifferent to Judge HAGAN and the grand jury over which he presided and which, equally, was standing by for any special instructions throughout that month.

Judge ALESSANDRONI ordered a "Special Grand Jury" to be convened on September 5th which was five months after the Leonard petition had come into his

[ 408 Pa. Page 562]

    hands. In ordering a special grand jury investigation to begin in September he also declined to recognize Judge ALEXANDER who was presiding in the grand jury courtroom for that entire month.

This is all related not as censure, but to emphasize what can occur when the regular forms and procedure of government are not followed, and judges embark on independent ventures, sailing in ships without sails of authority, using engines devoid of constitutional power and employing a compass lacking decisional direction. All the judges mentioned in this case are jurists of wide experience and of the highest probity. Judge ALESSANDRONI, particularly, who granted the Leonard petition, is a veteran jurist of scholarly attainments whose judicial integrity is not questioned.*fn4 Orderly procedure in the Courts and the laying down of rules for guidance of future conduct in matters of this kind, however, require the narrative and observations which have been made and which may follow.

The history of what happened to the Leonard petition is needed not only as background in disposing of the issues here on appeal but it serves also as a reminder of the manner in which the business of the Criminal Courts of Philadelphia should not be conducted. Why the Board of Judges of Philadelphia County allowed the inordinate delays recounted, the entangling and thwarting of the schedules they themselves had set up in the criminal courts, we are not informed. But that the inertia, lack of coordination and absence of frank disclosure among judges which have been manifested in this entire proceeding bestows no

[ 408 Pa. Page 563]

    credit on the whole administration of the criminal courts in Philadelphia is written too plainly on the gray and ancient walls of City Hall.

We now come to the question as to whether the order of July 11, 1962, summoning a grand jury, carried the imprimatur of the court of quarter sessions. Judge ALESSANDRONI was not sitting in that court in July. His term there having expired the first Monday of May, he had returned to his regular post as President Judge of Court of Common Pleas No. 5. In fact, the reverse side of the backing sheet of the order in which he called for a grand jury investigation bears the printed designation: "COURT OF COMMON PLEAS NO. 5 IN AND FOR THE COUNTY OF PHILADELPHIA."

The fact that he had shed his robe in criminal court would not of itself disqualify him from acting on criminal subjects. When a common pleas judge completes his term in criminal court it not infrequently happens that he must attend to unfinished matters and these he may and must dispose of even after he has reverted to his common pleas court status.*fn5 However, the ordering of a grand jury investigation could not possibly qualify under the heading of unfinished business. We have seen that the leonard petition was not presented to Judge ALESSANDRONI in the first instance, we have observed how on April 27th he stated that he could not summon a grand jury unless he was actually in criminal court, and we have noted that he could have passed the petition on to the judge who succeeded him in criminal court as he had inherited it from his predecessor.

What was being sought in the Leonard petition was not in Judge ALESSANDRONI'S competence alone, if, indeed, it was within his competence at all. Since a grand jury investigation could not, as already stated,

[ 408 Pa. Page 564]

    in any view of the matter, be regarded as unfinished business and since Judge ALESSANDRONI was not sitting in criminal court in July, the order he signed on the eleventh day of that month was of no more binding effect than if he were sitting in Delaware.

A judge must be assigned to the court over which he purports to preside. Judge ALESSANDRONI in effect commandeered the grand jury courtroom when he took possession of the Leonard petition, but he was not assigned to the grand jury room. If he could assume jurisdiction, when not assigned thereto, over grand jury matters, then any judge in the criminal court could take similar jurisdiction. If petitions or other applications for judicial action do not go to the judge designated to handle the subject matter of the petition but may, in billiard-ball fashion, make the rounds of the courts, haphazardly striking and missing jurisdiction until the final destination and disposition becomes a matter of chance, then the mists of potential chaos will hover constantly over the courthouse. The Pennsylvania Constitution specifically aimed at dissipating such mists in the workshop of justice through the operation of Article V, § 8, which says that judges shall be detailed "to hold the courts of oyer and terminer and the courts of quarter sessions" "in such manner as may be directed by law."

Even if the call of a special grand jury could have been justified in law, it did not follow that Judge ALESSANDRONI was the judge to preside over it. As pointed out by Justice COHEN in his concurring opinion in Hamilton Appeal, 407 Pa. 366, 373, the authority to charge a grand jury, in a situation like the one at bar, could only come through the approval of the assignment judge and the individual grand jury judges sitting during the months involved. No such approval was even remotely suggested in the case before us.

[ 408 Pa. Page 565]

It should be stated here that much of the confusion, complications and complexities in this case did not result from the error of any single judge but was caused by the strange composition of the Court of Common Pleas of Philadelphia County. Instead of one integrated court with a president judge over all, the court is made up of seven separate courts, each comprising three judges with a president judge of its own. Each of these seven courts exercises a certain amount of autonomy which separates it from the other six, as much as if it were in another county. Judges who are not president judges feel a certain inferiority toward all the seven president judges so that the president judges may be led astray simply because of the lack of free and candid discussion which should characterize the entire bench of the county. This is not the place to discuss reorganization of the courts of Philadelphia County, but it is to be hoped that proper constitutional action will be taken to dissolve the seven individual courts of Philadelphia and amalgamate them into one court of common pleas, with one president judge, who will have authority to assign the judges to the various departments of work and to schedule the court's business so as to remove all overlapping or collision of effort and endeavor, creating in the end a homogeneous, close-knit, harmonious-working court.

Had there been one president judge having administrative direction over all judges assignable to the criminal courts of Philadelphia County when the Leonard petition was filed, he would have decided, after consultation, of course, with the whole body of judges, whether he should call upon the Attorney General of the Commonwealth, under the Act of April 9, 1929, P.L. 177 (Administrative Code of 1929, P.L. 177, § 907, 71 P.S. § 297), which provides, inter alia: "When the president judge, in the district having jurisdiction of any criminal proceedings, before any court of oyer

[ 408 Pa. Page 566]

    and terminer, general jail delivery, or quarter sessions, in this Commonwealth, shall request the Attorney General to do so, in writing, setting forth that, in his judgment, the case is a proper one for the Commonwealth's intervention, the Attorney General is hereby authorized and empowered to retain and employ a special attorney or attorneys, as he may deem necessary, properly to represent the Commonwealth in such proceedings, and to investigate charges, and prosecute the alleged offenders against the law. Any attorney, so retained and employed, shall supersede the district attorney of the county in which the case of cases may arise, and shall investigate, prepare, and bring to trial the case or cases to which he may be assigned."

The lack of a single coordinating president judge in the Philadelphia district, however, did not suspend the applicability to Philadelphia of the quoted Act. The duty still devolved on Judge ALESSANDRONI to take up with the other judges of the court the question as to whether, under the circumstances presented to him, the Attorney General should be requested to supersede the district attorney. Instead of considering this definitive procedure, Judge ALESSANDRONI acted on his own volition and displaced the district attorney. A displacement of this character, even if only partial and temporary, is a serious and solemn matter. The learned judge treated it with a casualness which amounted almost to unconcern. The petitioners had charged the district attorney with misconduct and the district attorney had denied such misconduct, declaring under oath that he had "taken legal steps necessary to vigorously investigate the matter and prosecute any proven wrongdoers." He asserted "that the usual machinery for investigation and prosecution of crimes is operating efficiently and vigorously." If these assertions actually represented fact, there could not be any need for the action ordered by Judge ALESSANDRONI.

[ 408 Pa. Page 567]

On April 26, 1962, the district attorney moved the court of quarter sessions to dismiss the Leonard petition, because the petitioners had "failed to establish that the public interest would suffer from the application and pursuit of the ordinary forms and procedures of law or that there exists in Philadelphia an emergency shaking the social fabric, or causing terror and dismay among the citizens, or the demoralization of public security."

These were assertions of substance made by an officer of the court. Instead of summarily dismissing them, the judge should have opened the door of inquiry, but he did not even raise a window; he made no effort to ascertain bilaterally whether the averments of the district attorney in his answer and motion to dismiss represented fact or not. With a few strokes of the pen he disposed of the whole serious situation by writing: "We accordingly dismiss the answer and motion without further comment." Since his pen had not addressed itself at all to the district attorney's averments, the "further" was superfluous language.

Of course, it is abundantly clear that in refusing to consider the district attorney's answer, the learned judge permitted himself an arbitrary exercise of judicial power. When he treated with aloofness the provisions of the Act of 1929 (supra), he abused his discretion. When he appointed a "Special Prosecutor," he attempted the impossible because he was making an appointment to a phantom office. We will consider later the matter of the "Special Prosecutor," and take up now the main issue in the case, namely, whether the court was warranted in summoning what it called a "Special Grand Jury."

The learned judge in his opinion did not cite one statute, quote one authority, or point to one decision which authorized him to direct the summoning of a

[ 408 Pa. Page 568]

    special grand jury.*fn6 A clarification must be made at once as to the meaning of a Special Grand Jury as contradistinguished from a Regular Grand Jury, because the terms have confusedly and almost inexcusably been used interchangeably. A Special Grand Jury is one that is chose specially to investigate specially into certain conditions, and then make recommendations. It has no other purpose than this. A Regular Grand Jury (although it is usually simply called a grand jury) is one which is convened in the normal course of court business to receive complaints and accusations and find bills of indictment where they are satisfied a trial ought to be had. Such a grand jury, of course, is also available for the purpose of conducting investigations under special instructions from the court. In Philadelphia County a regular grand jury is assembled the first Monday of each month throughout the year.

The confusion between a Special Grand Jury and a Regular Grand Jury conducting a special investigation has produced a terminological melange to which, unfortunately, even judges have contributed. Lamentably, even in the State Reports, the phrase "Special Grand Jury" is occasionally used when the writer really has in mind a Regular Grand Jury conducting a special investigation.

There is no provision in the law for a special grand jury in Philadelphia County. The Act of March 13, 1867, P.L. 420, § 2 (17 P.S. § 472) specifies that there shall be monthly sessions of the Quarter Sessions Court in Philadelphia County. Section 2 reads: "The said courts shall, before the commencement of each term, as hereby established issue a venire, for the summoning of twenty-four residents of said city and county, to

[ 408 Pa. Page 569]

    praying that the court restrain them from expending any moneys appropriated by the City Council as above indicated because, the complaint asserted, the ordering of a special grand jury and the appointment of a special prosecutor was contrary to law.

On August 29th W. Wilson White, the named Special Prosecutor, petitioned this Court to issue a writ of prohibition or mandamus ordering the Court of Common Pleas No. 6, which now had before it for consideration the suit in equity filed by Beatrice M. Smith, to cease consideration of the named suit or, in the alternative, to transfer the case to Judge ALESSANDRONI. Argument on this petition was presented by City Solicitor Berger, Attorney White and Attorney Lipschitz before Justice JONES sitting in night special session in Wilkes-Barre. On August 30th the petition was denied.

On August 30th, Court of Common Pleas No. 6, made up of President Judge GOLD and Judges KELLEY and BLANC heard argument on Miss Smith's application for an injunction against Philadelphia's enumerated fiscal officers.

On September 5th, Court of Common Pleas No. 6 filed its adjudication in the Smith action stating that orders convening the special grand jury and appointing the Special Prosecutor were contrary to law and therefore null and void.*fn8 It entered a decree enjoining the defendants from expending any sums in connection with the ordered special grand jury investigation.

The City Solicitor of Philadelphia, David Berger, in order to obtain a definitive decision on the matters in issue, filed in behalf of the City of Philadelphia, an appeal to this Court from the decree entered by the

[ 408 Pa. Page 571]

Court of Common Pleas No. 6. The Republican Alliance, represented by Attorney Fogel, and the purported Special Prosecutor, W. Wilson White, and his assistant, F. Hastings Griffin, representing themselves, intervened as party appellants. The Democratic County Executive Committee of Philadelphia, represented by Attorney Herbert S. Levin and Former Justice Thomas D. McBride, petitioned this Court for, and was granted permission to, leave to file briefs and make oral argument, in the appeal.

On September 6th, the District Attorney of Philadelphia, James C. Crumlish, Jr., having for his special counsel, Attorney Edwin P. Rome, filed in this Court a petition praying that we issue a writ directed to Judge ALESSANDRONI to prohibit W. Wilson White from serving as Special prosecutor pursuant to the order of appointment of July 18th.

The appeal from Court of Common Pleas No. 6 and the argument on the petition for a writ of prohibition were heard on September 12th.*fn9 The intervening appellants attacked the decision of Court of Common Pleas No. 6 on the ground first of jurisdiction and then on the merits. They argued that Miss Smith's action in the court of common pleas constituted a collateral attack on the decision of a court of equal jurisdiction and therefore could not be sustained.

We do not find that Miss Smith's action lacked legal vitality. Beatrice Smith had a direct, substantial interest in the subject in controversy. The purpose of her lawsuit was to determine whether moneys, part of which came from taxes she had paid, should be used to support an operation which she claimed was, in fact

[ 408 Pa. Page 572]

    and in law, not legal. There is precedent for a procedure in the court of common pleas to question the legality of an order issuing from the court of quarter sessions. In Moskowitz's Registration Case, 329 Pa. 183, the Registration Commission of Philadelphia struck off its registry the name of David Moskowitz because of a sentence of disfranchisement imposed on him in the court of quarter sessions. Moskowitz protested in common pleas court this action of the Registration Commission, contending that the sentence of the court of quarter sessions was illegal because it was imposed after the expiration of the term at which he had been convicted. This Court sustained his position, declaring that the controverted sentence was a mere nullity and, therefore, subject to attack in any Court passing upon the rights of Moskowitz involved in the sentence: "Such a judgment is entitled to no authority or respect, and is subject to impeachment in collateral proceedings at any time by one whose rights it purports to affect. In Camp v. Wood, 10 Watts 118, it was held that a void judgment of a justice of the peace could not be introduced to establish rights in a subsequent proceeding over the same property. And, in Simpson's Estate, 253 Pa. 217, 225, this Court said: '"When the jurisdiction does not exist, and usurpation takes its place, then all the acts of the tribunal are void 'and of none effect,' and may be so treated in any collateral proceeding ... Where there is no jurisdiction there is no authority to pronounce judgment, and consequently a judgment so entered is so but in form and similitude, and has no substance, force, or authority.'" ...'"*fn10

[ 408 Pa. Page 573]

It has been argued that the action of the Court of Common Pleas No. 6 was ineffective, lacking indispensable parties. The record would not substantiate this argument. It will be noted, however, and particularly, that regardless of the action of the court of common pleas, this Court, under its King's Bench powers, possesses the power to pass upon all orders issuing from any court in the Commonwealth. Chief Justice HORACE STERN, in the case of Commonwealth v. Onda, 376 Pa. 405, declared: "More than two centuries ago section XIII of the Act creating the Supreme Court of this Commonwealth (Act of May 22, 1722, 1 Sm.L. 131) provided that the court should 'minister justice to all persons, and exercise the jurisdictions and powers hereby granted concerning all and singular the premises according to law, as fully and amply, to all intents and purposes whatsoever, as the Justices of the Court of King's Bench, Common Pleas, and Exchequer, at Westminster, or any of them, may or can do.' Thus the power of superintendency over inferior tribunals became vested in this court from the very time of its creation." Sir William Blackstone explained that the jurisdiction of the Court of King's Bench "keeps all inferior jurisdictions within the bounds of their authority." (Book 3, ch. 4)

It has also been argued that since there was never a direct appeal from Judge ALESSANDRONI'S order of July 11th that that order is legal and is not the subject of attack. This is an incorrect appraisal of the law. An order which is illegal in its inception does not gain legality or validity because it is not appealed from. This Court has the power to strike down any illegal act of a lower Court regardless of antecedents. Justice BROWN, speaking for a unanimous Court, quoted with approval in Schmuck v. Hartman, 222 Pa. 190, 194, from Gosline v. Place, 32 Pa. 520: "The judicial authority of this court extends to the review and correction

[ 408 Pa. Page 574]

    of all proceedings of all inferior courts, except where such review is expressly excluded by statute, in accordance with the constitution; and we may issue all sorts of process, and use and adopt all sorts of legal forms that are necessary to give effect to this supervisory authority."

But the intervening appellants say that Judge ALESSANDRONI did have the jurisdiction and the authority to order a special grand jury and appoint a special prosecutor. The oral and written arguments submitted in behalf of this thesis, however, lack conviction or even persuasion. They speak vaguely of inherent authority, common law jurisdiction and traditional powers. One sentence in the brief of Attorneys F. Hastings Griffin and W. Wilson White illustrates the nebulosity of the contention, namely, "He [Judge ALESSANDRONI] convened a special grand jury, not a law enforcement agency but an investigating agency, not part and parcel of the usual law enforcement procedures assigned by statute to the Attorney General and the District Attorney but a highly unusual judicial procedure bottomed on the inherent power of a court to intercede in a highly specialized situation." (Emphasis in original).

This is an argument which sails a sea glittering with generalities, from which there emerges not one solid rock of jurisprudence on which one can stand and assert a tangible rule, or palpable principle, recognizable in law.

It is a mistake to assume that judges have unlimited power to "intercede in a highly specialized situation." A judge's function is to adjudicate and not to intercede, his duty is to pass upon questions presented to him in accordance with established procedure and not, of his own volition and initiative, to issue orders, edicts and decrees "bottomed" on his own personal estimate of a "highly specialized situation". The juridically immortal

[ 408 Pa. Page 575]

Chief Justice MARSHALL spoke pointedly on this subject when he said: "Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and when that is discerned, it is the duty of the Court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law." (Osborn v. U.S. Bank, 9 Wheaton 738, 866, 6 L.Ed. 204.)

The contention of the intervening appellants splinters against the stone wall of these wise and authoritative words uttered by the greatest exponent of law in the history of our country. Our own Court, speaking through the scholarly Justice MITCHELL, said in the case of Commonwealth v. Smith, 185 Pa. 553: "No man, even for the accomplishment of a great good, can be permitted to set himself above the law, and least of all the judge appointed to administer it."

It is argued that the workload of a regular grand jury would not permit it to undertake an investigation, but in Philadelphia County it has always been the regular grand jury which conducted investigations.*fn11

[ 408 Pa. Page 576]

Moreover, under the Pennsylvania statute of March 18, 1875, provision is made for anticipating the call of a regular grand jury and of protracting its duration in order to dispose of any unusual workload. Section 2 provides that a grand jury may be summoned "to meet at such time prior to the holding of said terms as the judges of the said courts shall deem expedient; and if in the opinion of the said judges the business of the said courts at any time shall require it, the grand jury may be detained for an additional week without the issuing of a new venire." The amendatory Act of April 27, 1927, P.L. 420, allows the court to hold over the grand jury summoned for any term during the interim until the grand jury of the next succeeding term is assembled, with power to dispose of any business properly laid before a grand jury at a regular term.

If a regular grand jury conducting an investigation has not completed its work before the next grand jury is convened, it may be held over for a reasonable period of time to terminate its labors. (Shenker v. Harr, 332 Pa. 382.)

The glaring infirmity in this entire proceeding was the failure of the Criminal Courts of Philadelphia County to utilize the machinery already in existence. The order of July 11th not only ignored the time-honored, well-functioning constitutional institutions in the judicial department of government but set up an establishment which would compete with, interfere with, and eventually probably clash with the orderly administration of the law in Philadelphia County.

The order of July 11th directed an investigation which was unlimited in scope, timeless in duration, and responsible to but one person. Unlimited power of that character is incongruous anywhere in America,

[ 408 Pa. Page 577]

    but particularly in Philadelphia, the birthplace of the American Republic. The order of July 11th directed the Special Grand Jury "to investigate and inquire into all matters set forth in the said petition and any other matters which may properly come before it, including the investigation of any other unlawful conduct on the part of any public official or person within our jurisdiction."

This would mean that every person in the County of Philadelphia would be subject to the inquisitorial powers of this body; it would mean that every act in the whole catalogue of "unlawful conduct" ranging through the most trivial infractions of traffic regulations, assault and battery, larceny, misdemeanors of all types, and felonies up to and including murder, could be investigated; it would mean that preliminary proceedings in Magistrates' courts could be suspended while preliminary investigations were being made by the special grand jury. And then, not only did the order of July 11th make the whole world of crime, suspected crime, and suspicious circumstances the subject of investigation, it placed no limit on the period of time that this boundless probing, questing, hunting and investigating could go on. In the absence of threatened national disaster no such perpetuity or infinite powers are lodged in any branch of representative government. Justice, later Chief Justice, STERN, trenchantly warned in the case of Shenker v. Harr, 332 Pa. 382, 388: "A tendency to establish anything approaching permanency in a grand jury is repugnant to our scheme of government and subversive of individual rights."

In addition, there could be no assurance that, even with the best of intentions, the investigation authorized by the order of July 11th would not cross the boundaries of democratic limitations and become an engine of oppression, especially in view of the fact that the limits of the investigation were not marked by

[ 408 Pa. Page 578]

    wall, fence, hedge or even a painted line. The history of the rigors of overzestful inquisitors, the excesses of inquests having no limit in time and scope, the injustices which can result from searches that are not confined to a particular subject, is etched too deeply into the conscience of the American people for a free country to allow a resumption of a practice so fraught with tyrannical threat, and emancipation from which a bloody war was fought to attain. The fact that no such usurpation of the rights of the people was intended does not guarantee that abuses could not result. Good intentions in releasing a juggernaut will not heal the wounds of those crushed beneath its remorseless wheels.

The ever-building omnibus character of the scope of the Special Grand Jury investigation was made particularly manifest by the fact that on August 10th, Francis R. Smith, Treasurer of the Democratic County Executive Committee, filed a petition requesting that Judge ALESSANDRONI include in his charge to the Special Grand Jury the direction that it "investigate and inquire into the matter of unlawful and unreported contributions and expenditures by the Republican Alliance during the 1961 election."

On August 20th Judge ALESSANDRONI granted this petition stating "that the public interest requires the inclusion of this subject matter within the scope of the investigation and added that the investigation would not be limited to the activities of any one political party or committee, but will be applicable to the activities of all political parties or committees of political parties or other persons within the jurisdiction of the Court."

The original purpose of the investigation was to inquire into charges of municipal illegalities. By now specifically including the "activities" of any "political party or committee," and all persons "within the jurisdiction of the Court" (meaning, of course, every section,

[ 408 Pa. Page 579]

    district, and far-flung area of the whole City and County of Philadelphia), the investigation could search into almost any type of activity of any individual. Such universality of probing, such unrestrained delving into the affairs of the whole community and unlimited questioning into the private business and matters of the people would be a direct menace to the peace, security, and tranquillity of every family in Philadelphia and could set aside regular constitutional government. Such absolute authority is alien to the free institutions of this country, and this Court will not permit it to take hold.

Sir William Blackstone, the imperishably great expounder of the Common Law, said in his Commentaries, which are accepted by every American Lawyer as the basis of all ordered law in English-speaking countries, that: "the public good is in nothing more essentially interested than in the protection of every individual's private rights." (1 Bl.Comm. 139)

An illustration of how one abuse of power may lead to another is to be observed in the 33rd Finding of Fact by Court of Common Pleas No. 6, which stated that the City Council of Philadelphia appropriated $112,000 for the Special Grand Jury investigation, "at the special instance and request of Judge ALESSANDRONI."

Here we do not have a request from the Board of Judges; we do not find a requisition submitted in the name of a general judicial authority; what is revealed here is an importunity on the legislative branch of the government by a single member of the judicial branch. Judge ALESSANDRONI personally appeared before the Finance Committee of the City Council in behalf of the appropriation. That he unquestionably made the request in a most courteous manner and that Council acceded to his request graciously does not detract from the peril of the encroachment of one government department on the authority of another.

[ 408 Pa. Page 580]

Once regular procedure is ignored, irregularities follow quickly and without trammel. On July 18th Judge ALESSANDRONI issued the following order: "pursuant to the order of the court dated the 11th day of July, 1962, W. Wilson White, Esquire, is hereby appointed Special Prosecutor in connection with the Special Grand Jury to be convened as set forth in said order. He is accordingly authorized and directed to perform all of the duties lawfully incumbent upon him as Special Prosecutor and to investigate and inquire into all matters that may properly come before the said Special Grand Jury, including the investigation of any unlawful conduct on the part of any public official or person within our jurisdiction and to aid the Special Grand Jury in the making of proper presentment or presentments to the court as the ends of justice may require."

As already stated, there is no public office in Pennsylvania known as Special Prosecutor. In his Concurring Opinion in Hamilton Appeal, 407 Pa. 366, Justice COHEN listed 21 reported cases involving grand jury investigations, either requested or accomplished. In not one of them was there an official of any kind with duties even distantly approximating those assigned to W. Wilson White by Judge ALESSANDRONI.

Not only does the office of Special Prosecutor not exist in Pennsylvania but there is no person in Pennsylvania on whom Judge ALESSANDRONI, or even the Pennsylvania Legislature, could bestow the unconstitutional powers and the concomitant unconstitutional immunities implicit in the learned judge's order. Under the provisions of that order, W. Wilson White would be empowered to investigate the "unlawful conduct" of any person within the vast geographical domains of metropolitan Philadelphia.

Whether conduct is or is not unlawful can only be determined through judicial process, but by means of

[ 408 Pa. Page 581]

    this amazing document, which is without precedent or parallel in the history of Pennsylvania's courts, W. Wilson White could investigate, quiz, harass, harry, annoy, badger, command and worry and number of two million inhabitants on any subject which, according to his own unrestricted judgment, came within the purview of "unlawful conduct."*fn12

And in the exercise of this incredible authority Mr. White would not be answerable to anyone for misbehavior or usurpations. Not holding a constitutional office he would not be subject to impeachment; being clothed with judicial sanction he would be immune from criminal prosecution; engaged in governmental business he could not be sued civilly. No person in the United States may constitutionally wear such impenetrable armor against responsibility for possible illegal performance. The clanking of such armor would be an incongruous sound anywhere, but particularly so in Philadelphia which heard the music of the Liberty Bell proclaiming "Liberty throughout the land unto all the inhabitants thereof." One of the reasons why Americans rebelled against the tyrannical King George III was described by Thomas Jefferson: "He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our People, and eat out their substance."

The order of July 11th and those which followed created new offices having no responsibility to anyone except their appointer. On July 25th Judge ALESSANDRONI appointed F. Hastings Griffin, who is not even a resident of Philadelphia, as assistant to the Special

[ 408 Pa. Page 582]

Prosecutor. Of course, in point of law, his office could have no authority whatever since there can be no assistant to a myth.

On August 15th Judge ALESSANDRONI ordered that space be obtained beyond the courthouse, specifically in the Widener Building, for the quartering of the Special Grand Jury. The order specifically stated that access to the Grand Jury Room was to be "by means of room known as No. 630." Room 630 happens to be the very office of F. Hastings Griffin, the assistant Special Prosecutor.*fn13 It is almost shocking to contemplate that a prosecutor who, after all, is an advocate, should be allowed to have intimate contact with the members of the tribunal who are to pass on matters he brings before that tribunal - a tribunal which is the safeguard of the liberties of the citizens of Philadelphia. This is but another illustration of the danger of turning strictly governmental responsibility over to private individuals who bring to the job the atmosphere of a personal, partisan pursuit rather than investing it with all the dignity and solemnity of unyielding neutrality.

Almost with the appurtenances and appearance of an occupying expeditionary force, W. Wilson White, at a salary of $20,000 a year and F. Hastings Griffin, at a salary of $17,500 a year, moved into the Widener Building with staff made up of attorneys, investigators, detectives, stenographers and clerks, together with desks, filing cabinets and other furniture. All this in spite of the fact that there already exist a grand jury, district attorney, detectives, clerks, stenographers, and quarters to house them, together with all appropriate equipment and furniture to accomplish the work involved in an orderly constitutional grand jury investigation.

[ 408 Pa. Page 583]

Nowhere in the opinion of the lower court or in the orders issued by it is there any explanation as to the reason for this costly duplication of effort, a very costly enterprise indeed. City Solicitor David Berger, in his argument in Court of Common Pleas No. 6, said: "We need not be naive about this, and I think as judges and lawyers, we need not be blind to facts we know as men; The $112,000 is a drop in the bucket and it is only the first installment on this million dollar bill." The Court very aptly said that the Smith suit was "in the taxpayers' interest."

The order of July 18th not only constitutes an invasion of constitutional liberties as pointed out, but it would perpetrate another unconstitutional mischief. It would disfranchise the people of Philadelphia in the realm of their freedom to select a district attorney of their own choice. James C. Crumlish, Jr., was elected in accordance with the Constitution and the election laws of Pennsylvania. The learned judge who signed the order of July 18th summarily dismissed the District Attorney from all phases of the contemplated grand jury investigation. One of the duties of the District Attorney is to "attend upon a grand jury, lay before them all matters upon which they are to pass, aid them in the examination of witnesses and give general instructions as may be required." (Com. v. Brownmiller, 141 Pa. Superior Ct. 107, 113.)

The learned judge forbade him to do this. An appellate court should not have to spend time expatiating on the patent illegality of such an interdiction. The District Attorney may not be removed from his office except by impeachment. No judge may dictatorially order him to refrain from doing his work.

As stated earlier in this opinion, the learned Judge refused to consider the District Attorney's reply to the charges made against him in the Leonard petition. This refusal ...

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