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DALY v. HEMPHILL (06/04/63)

June 4, 1963


Appeals, Nos. 208, 209 and 212, Jan. T., 1963, from decree of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1962, No. 4994, in equity, and judgment of Court of Common Pleas No. 3 of Philadelphia County, Dec. T., 1962, No. 4993, in mandamus, in cases of John F. Daly, Chief Magistrate of Philadelphia, v. Alexander Hemphill, Controller, Francis A. Lalley, Finance Director, and Philip Poorman, Treasurer, of City of Philadelphia, and John Reese and Charles Dougherty v. Same. Decree and judgment affirmed; reargument refused July 1, 1963.


Edward G. Bauer, Jr.,, City Solicitor, with him Herbert B. Newberg and Ellis A. Horwitz, Assistant City Solicitors, and Levy Anderson, First Deputy City Solicitor, for appellants.

Herbert S. Levin, for appellant, intervening defendant.

Edward R. Becker, with him Edwin E. Naythons, Stanley M. Greenberg and William A. Meehan, for appellees.

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

Author: Roberts

[ 411 Pa. Page 265]


Appellee, John F. Daly, was appointed Chief Magistrate of the City of Philadelphia by the Governor on

[ 411 Pa. Page 266]

February 11, 1963.*fn1 Shortly thereafter, Chief Magistrate Daly removed thirteen employees who had served the magistrates' courts in various capacities.*fn2 In addition, he appointed appellee Reese as a bailiff in the divisional police court and appellee Dougherty as a writ server in Traffic Court. The Chief Magistrate notified appellants, the city's auditing and disbursing officers, of the dismissals and appointments, and requested that only payroll vouchers verified and signed by him be approved for payment. Appellants refused to comply with this request.

For at least twenty-five years prior to this proceeding (and perhaps for ten years longer), there had been no challenge to the authority of a Chief Magistrate to appoint and dismiss employees such as are here involved. In 1937, the Board of Magistrates directed by rule that: "The Chief Magistrate shall appoint all persons necessary and as are provided for by law." On January 11, 1963, however, by resolution, the Board of Magistrates, for the first time, created a personnel committee to assume the power of appointment and discharge of employees and provided specifically: "No certification of the payroll shall be effective without the joinder of the Chief Clerk, the Chief Magistrate and the Secretary of the Board of Magistrates; provided, however, that if the Chief Clerk or the Chief Magistrate or both of them shall be unable or unwilling to approve ... without such cause as shall appear to a majority of the members of the Board of Magistrates in their sole discretion to be good cause then and in that event, the Secretary [apparently selected by a majority of the Board] shall approve the payroll and his signature alone shall be sufficient ...." On

[ 411 Pa. Page 267]

    the basis of this resolution, appellants refused to accede to Chief Magistrate Daly's request.

A complaint in equity was filed by appellee Daly to enjoin appellants from interfering with the performance of his duties as Chief Magistrate. Simultaneously, the two employees appointed by him instituted actions in mandamus against appellants. Subsequently, the thirteen dismissed employees were granted permission to intervene. These actions were consolidated below and will be considered here as one appeal. The City filed preliminary objections in the nature of a demurrer. Counsel agreed that since only questions of law were involved, the disposition of these objections would be a final appealable order and that the filing of exceptions would be waived. The court below dismissed the preliminary objections, enjoined appellants from interfering with the actions of the Chief Magistrate, and ordered them to pay the salaries of appellees Reese and Dougherty.

Prior to determining whether or not there is authority in the Chief Magistrate to appoint and remove employees, it is necessary to resolve a contention raised by appellant-intervenor Black (one of the dismissed employees) that Section 32 of the Magistrates' Court Act of 1937,*fn3 which provides that "... the Governor shall select from among the [elected] magistrates a chief magistrate ...,"*fn4 is an unconstitutional infringement

[ 411 Pa. Page 268]

    upon the judicial power vested in the magistrates' courts*fn5 in violation of the principle of separation of powers, and that the Governor, therefore, is without authority to appoint or remove a Chief Magistrate. As basic support, appellant-intervenor relies upon Humphrey's Executor v. United States, 295 U.S. 602 (1935), in which the Supreme Court of the United States held that the President lacked the power to remove a member of the Federal Trade Commission, a quasi-judicial body, who had been appointed by the preceding President. The authority of that decision on the separation of powers is unquestioned. Pennsylvania has long adhered to the doctrine of separation of powers. An encroachment upon the judicial power by the legislature, or such encroachment by legislative delegation of power to the executive, would be a violation of that principle. See, e.g., Commonwealth v. Knox, 172 Pa. Superior Ct. 510, 94 A.2d 128 (1953), aff'd per curiam, 374 Pa. 343, 97 A.2d 782 (1953). However, no such encroachment upon judicial power has been shown here to exist.

Should the Governor choose to remove a Chief Magistrate, the latter no longer serves in the capacity of Chief Magistrate, but he does retain his judicial position undisturbed until the expiration of his elected term. In Humphrey, however, had the dismissal been effective, the commissioner would have been removed from the FTC prior to the completion of his statutory term of office. Further, the duties of the Chief Magistrate, beyond those performed as magistrate, are purely administrative and executive responsibilities dealing with the non-judicial functions of the magistrates' courts, and are not ...

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