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decided: March 14, 1967.


Appeal from order of Court of Common Pleas No. 8 of Philadelphia County, March T., 1966, No. 1173, in case of Commonwealth ex rel. District Attorney Arlen Specter v. Magistrate M. Phillip Freed.


I. Finkelstein, for appellant.

Arlen Specter, District Attorney, with him Gordon Gelfond and Alan J. Davis, Assistant District Attorneys, for appellee.

Edward R. Becker, with him Charles W. Sweeney, for Board of Magistrates, amicus curiae.

Peter Hearn, with him Aaron D. Blumberg, and Pepper, Hamilton and Scheetz, for Greater Philadelphia Movement and Chamber of Commerce of Greater Philadelphia, amici curiae.

Ferdinand P. Schoettle, Jr., for Crime Commission of Philadelphia, Inc., amicus curiae.

Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Concurring Opinion by Mr. Justice Cohen. Concurring Opinion by Mr. Justice Eagen. Concurring and Dissenting Opinion by Mr. Justice Musmanno. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Roberts

[ 424 Pa. Page 510]

M. Phillip Freed, a magistrate of the City of Philadelphia, appeals from the order of the Court of Common Pleas of Philadelphia County requiring him to comply with a subpoena issued by Arlen Specter, District Attorney of Philadelphia. The subpoena was issued by the district attorney in the course of an investigation by his office into whether Philadelphia magistrates were violating certain state statutes, including those imposing criminal sanctions for failure to make proper entries in the dockets of magistrate's court.*fn1 Magistrate Freed was directed by the subpoena to appear in the office of the district attorney and to bring with him certain official magisterial records.

Simply stated, the position of Magistrate Freed is that he is not required to comply with the subpoena served upon him, because the district attorney is not empowered to issue subpoenae to magistrates.*fn2 The district attorney quite properly makes no claim that he is invested with such power by the explicit provision of any statute or by virtue of common law, see Commonwealth ex rel. Margiotti v. Orsini, 368 Pa. 259, 81 A.2d 891 (1951); his sole contention is that § 8-409

[ 424 Pa. Page 511]

    of the Philadelphia Home Rule Charter invests him with the subpoena power.*fn3

As the decided cases in this area suggest, the question of the effect of the adoption of the Philadelphia Home Rule Charter, related statutes and constitutional amendments on offices which, like that of district attorney, were not prior thereto associated with municipal government of Philadelphia, is fraught with difficulty and dissent.*fn4 Notwithstanding these problems we conclude that the order of the court below must be reversed. In essence, our conclusion arises from the view that the Philadelphia Home Rule Charter does

[ 424 Pa. Page 512]

    not affect the manner in which the district attorney shall discharge the functions and duties of his office; we have arrived at this view because we believe that neither the Constitution nor the statutes of this Commonwealth have ever granted Philadelphia or any other political subdivision of Pennsylvania authority to alter or interfere with the district attorney's conduct of law enforcement activities.

Prior to 1850, investigation and prosecution of crime in Pennsylvania were exclusively the duty of the Attorney General, a Commonwealth official. In practice, that official discharged the duties imposed on him by the appointment of deputy attorneys general empowered to act as his agents within the several counties. Commonwealth ex rel. Minerd v. Margiotti, 325 Pa. 17, 188 Atl. 524 (1936). In 1850 the General Assembly enacted legislation transferring the duties performed by such appointed deputy attorneys general to an official elected by the voters of the county and designated "district attorney," Act of May 3, 1850, P.L. 654, § 1. Interestingly, the only description of the duties of district attorneys in that act was as follows: "the officer so elected shall sign all bills of indictment, and conduct in court all criminal or other prosecutions in the name of the commonwealth, or when the state is a party, which arise in the county for which he is elected, and perform all the duties which now by law are to be performed by deputy attorney generals. . . ."

It would seem clear from this language that the only significant change accomplished by the Act of 1850 was the alteration in the manner of selecting officers to enforce state criminal laws and to act as the state's legal representative in each county. There can be no doubt, especially in light of the decisions of this Court that the Attorney General of the Commonwealth

[ 424 Pa. Page 513]

    may supersede any district attorney,*fn5 that the essentially state-character of criminal law enforcement was not affected.

Article XIV, § 1 of the Constitution of 1874 designated district attorneys, along with several other officials, "county officers."*fn6 Despite this designation, the essentially state-character of the duties and functions of the district attorney's office and the manner in which they were to be discharged was not affected. An examination of the entire language of Article XIV, as it stood at the time of its adoption, shows that it was concerned solely with the election and compensation of the various "county officers" named in § 1. Not one word of the article as originally written concerns the functions or duties of district attorney or any other so-called county officer therein mentioned.

On April 21, 1949 the General Assembly adopted the First Class City Home Rule Act. Act of April 21, 1949, P.L. 665, 53 P.S. §§ 13101-13116, 13131, 13133. Germane to the instant question was the following language of § 17 (53 P.S. 13131) of the act: "the city . . . shall have and may exercise all powers and authority of local self-government and shall have complete powers of legislation and administration in relation to its municipal functions, including the power and authority to prescribe the elective city officers, who shall be nominated and elected only in the manner provided by, and in accordance with, the provisions of

[ 424 Pa. Page 514]

    the Pennsylvania Election Code and its amendments, for the nomination and election of municipal officers. The charter . . . may provide for a form or system of municipal government and for the exercise of any and all powers relating to its municipal functions. . . ." (Emphasis supplied.) as well as the following language from § 11 (53 P.S. § 13111) of the act: "Any new charter or amendments to the charter . . . shall become the organic law of the city at such time as may be fixed therein. . . . So far as the same are consistent with the grant of powers and the limitations, restrictions and regulations hereinafter prescribed, they shall supersede any existing charter and all acts or parts of acts, local, special, or general, affecting the organization, government and powers of such city, to the extent that they are inconsistent or in conflict therewith." (Emphasis supplied.)

It is clear from an examination of the quoted language that the changes authorized by the First Class City Home Rule Act were restricted to matters affecting local and municipal government. Nowhere is there any intimation that changes in the performance of state functions, which as we have seen the district attorney performs, were authorized. Indeed, nowhere in the First Class City Home Rule Act is there even a reference to the power of the city to affect "county officers" as the district attorney was designated in Article XIV, § 1 of the Constitution. Therefore, as far as this legislation is concerned, the General Assembly in no way disturbed pre-existing laws regarding the nature of district attorneys' functions and duties or the powers of local government with regard to them.

On November 6, 1951, Article XIV of the Constitution was amended by the addition of § 8. That section pertinently provided as follows: "(1) In Philadelphia all county offices are hereby abolished, and the city shall henceforth perform all functions of county government

[ 424 Pa. Page 515]

    within its area through officers selected in such manner as may be provided by law. (2) Local and special laws, regulating the affairs of the city of Philadelphia and creating offices or prescribing the powers and duties of officers of the city of Philadelphia, shall be valid notwithstanding the provisions of section seven of article three of this Constitution. (3) All laws applicable to the county of Philadelphia shall apply to the city of Philadelphia. . . . (7) Upon adoption of this amendment all county officers shall become officers of the city of Philadelphia, and, until the General Assembly shall otherwise provide, shall continue to perform their duties and be elected, appointed, compensated and organized in such manner as may be provided by the provisions of this Constitution and the laws of the Commonwealth in effect at the time this amendment becomes effective, but such officers serving when this amendment becomes effective shall be permitted to complete their terms." (Emphasis supplied.) In this case, an attempt has been made to draw from this language the conclusion that the district attorney is a "city officer" for purposes of giving him the subpoena powers created under § 8-409 of the Charter. We believe such a result is not warranted because nothing either in the language of Article XIV, § 8 or the cases decided under it suggests that the city or its electors were thereby empowered to alter the functions, duties or powers of the offices in question.

The language of Article XIV, § 8, for instance, indicates nothing touching the powers, duties and functions of the district attorney. The phrases abolishing county offices and stating the "city shall henceforth perform all functions of county government" certainly do not have this effect. For, while the district attorney may have been a "county officer" by virtue of Article XIV, § 1, in the sense that he was elected on a county basis, and while his "office" qua "county office" may

[ 424 Pa. Page 516]

    thereby be abolished, since his functions, powers and duties were never those of "county government", a phrase vesting such functions, powers and duties in the city has no effect on him. Indeed in the opinion of this Court in Commonwealth ex rel. Truscott v. Philadelphia, 380 Pa. 367, 111 A.2d 136 (1955) we declared that in the absence of specific statutory authorization from the Legislature, the Home Rule Charter did not give the City Council of Philadelphia the power to abolish the Board of Revision of Taxes, because despite the fact that that office became a "city office" by virtue of Article XIV, § 8,*fn7 Article XIV, § 8 did not give the City Council or electors of Philadelphia the right to change its duties or functions.*fn8 If this is true as to the effect of the Charter with respect to the Board of Revision of Taxes, it is at least equally correct with

[ 424 Pa. Page 517]

    respect to an office such as the district attorney's so indelibly associated with and necessary to the concerns of state government.

Further support for the conclusion that the designation of an official as a "county officer" in Article XIV, § 1 of the Constitution does not, by virtue of Article XIV, § 8 make him subject to the Charter in all respects, is provided by the decision of our Court in Lennox v. Clark, 372 Pa. 355, 93 A.2d 834 (1953). There we held that despite the designation of the prothonotary and register of wills as "county officers" in Article XIV, § 1, the adoption of Article XIV, § 8 did not convert them into city officers for purposes of making their employees subject to the civil service provisions of the Charter. While this conclusion was based on a reason somewhat distinguishable from the instant case,*fn9 Lennox does indicate that this Court has on a previous occasion eschewed a literal and insensitive interpretation of the designation "county officer" in Article XIV of the Constitution. Moreover, the decision in Lennox is particularly pertinent since we there held that what at first seemed to be the alteration in the character of the offices of prothonotary and register of wills by constitutional language adopted in 1951 had not in fact occurred in light of a careful consideration of the language of Article V, adopted in 1874.

The conclusion that the district attorney is essentially a state officer whose powers, duties and functions are not affected by the Charter is confirmed by many additional observations. To begin with, it

[ 424 Pa. Page 518]

    would certainly be anomalous to say that while the District Attorney of Philadelphia has general subpoena powers, neither the Attorney General, who may supersede him,*fn10 nor any other district attorney in the Commonwealth has such powers. It is also striking that while the General Assembly has since the effective date of the Charter specifically granted the City Council or electors of Philadelphia "full powers to legislate with respect to the election, appointment, compensation, organization, abolition, merger, consolidation, powers, functions and duties" of such "county officers" as Coroner, Recorder of Deeds, City Treasurer, Clerk of the Court of Quarter Sessions, Oyer and Terminer and General Jail Delivery, Sheriff, City Commissioners, Registration Commission and Board of Revision of Taxes,*fn11 Act of August 26, 1953, P.L. 1476, § 2, as amended, Act of August 13, 1963, P.L. 795, § 1, 53 P.S. § 13132 (Supp. 1966), its legislation with respect to the District Attorney of Philadelphia has consisted of a statute prescribing the manner of his election, Act of August 26, 1953, P.L. 1476, § 3, 53 P.S. § 13152 and the statutes fixing the amount of his compensation, Act of August 9, 1955, P.L. 312, now amended by Act of June 14, 1961, P.L. 371, 16 P.S. § 7706 (Supp. 1966).*fn12 If nothing else does, the juxtaposition of the sets of enactments above should make clear that the General Assembly, at least, has never regarded the office of district attorney to be appropriate for or subject to legislation adopted at a local level.

Finally, it should be noted that lack of the subpoena powers here sought will not in any meaningful sense

[ 424 Pa. Page 519]

    interfere with the District Attorney of Philadelphia's unquestionable right and duty to investigate the official conduct of Philadelphia magistrates.*fn13 Like every other district attorney, he may obtain the production of witnesses and documents by court issued subpoenae at preliminary hearings, grand jury proceedings and trials. Moreover, either the district attorney or his investigators are entitled by statute, Act of June 15, 1937, P.L. 1743, § 6, as amended, Act of May 9, 1949, P.L. 1028, § 2, 42 P.S. § 1106 to go to the offices of magistrates and inspect public records and documents. Refusal of a magistrate to observe that right can be remedied in an appropriate proceeding.

Order reversed.


Order reversed.

Concurring Opinion by Mr. Justice Cohen:

I concur with the majority's decision that the District Attorney of Philadelphia does not possess the power to issue subpoenas. However, unlike the majority opinion, I reach my conclusion without finding it necessary to determine that the district attorney is excluded from the Philadelphia Home Rule Charter. Nor do I decide that he is included in the Home Rule Charter. I deem it inappropriate for this Court to make a determination on an issue of such far-reaching consequences when we have not had the benefit of briefs and argument solely devoted to that matter. This is especially so in light of the fact that, without exception, in every case wherein the issue involved the powers of the office of district attorney, ...

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