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STANDER ET AL. v. KELLEY (02/07/69)

decided: February 7, 1969.


Appeal from decree of Court of Common Pleas of Dauphin County, No. 197 Commonwealth Docket, 1968, No. 2859 Equity Docket, in case of Irvin Stander et al. v. Joseph J. Kelley, Jr., Secretary of Commonwealth of Pennsylvania.


James E. Beasley, for plaintiffs, appellants.

William C. Sennett, Attorney General, with him Edward Friedman, Counsel General, for Secretary of Commonwealth, appellee.

Ira P. Tiger, Ralph S. Snyder, Samuel D. Slade, Bernard G. Segal, and Schnader, Harrison, Segal & Lewis, for amicus curiae.

S. Regen Ginsburg and Lewis H. VanDusen, Jr., for amicus curiae.

W.J. Krencewicz, for interested person, under Rule 65.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion By Mr. Chief Justice Bell. Concurring Opinion by Mr. Justice Roberts. Mr. Justice Jones and Mr. Justice Pomeroy join in this concurring opinion. Dissenting Opinion by Mr. Justice Cohen.

Author: Bell

[ 433 Pa. Page 408]

On April 23, 1968, the eligible voters of Pennsylvania adopted several amendments to the Constitution of Pennsylvania. Included among these was a complete revision of Article V relating to the Judiciary. The vote approving the new Judiciary Article, which superseded the old Judiciary Article, was 910,855 in favor and 729,845 against.

[ 433 Pa. Page 409]

The plaintiffs, taxpayers and owners of real estate in Pennsylvania, on April 11, 1968 filed a taxpayers' Complaint in Equity against the Secretary of the Commonwealth in the Dauphin County Common Pleas Court, in which the Court was asked to enjoin a vote by the electorate on the new proposed Constitutional Amendments and to hold them invalid and void.

The plaintiffs, on April 11, 1968, had originally attempted to obtain a preliminary injunction which sought to enjoin the Secretary of the Commonwealth from printing the questions pertaining to the Constitutional amendments on the ballots to be furnished the electors at the April 23, 1968 election. The Dauphin County Common Pleas Court refused to grant the preliminary injunction, principally on the basis of the plaintiffs' laches*fn1 in waiting until the "eve" of the election to bring their action. An appeal was taken to this Court, which affirmed the dismissal of the preliminary injunction on the ground that the Court below had not committed a clear abuse of discretion or a palpable error of law: Stander v. Kelley, 432 Pa. 1, 246 A.2d 649. An amended complaint was thereafter filed seeking permanent equitable relief. This too was denied by the Dauphin County Court and its Order dismissing the complaint and entering a decree in favor of the defendant serves as the basis for the present appeal.

Because of the tremendous importance of this question to all the people of Pennsylvania, we shall first point out what questions are, and what questions are not involved, and then discuss several of the contentions made by the Commonwealth and all of the principal

[ 433 Pa. Page 410]

    contentions made by the appellants.*fn2 The broad question involved is whether the new Judiciary Article V, which in practical effect repealed Article V of the Constitution of 1874, is Constitutional or is null and void. It is unnecessary at this time and in this case to unravel the conflicts or to interpret the many ambiguities which exist in the new Judiciary Article, or the wisdom or foolishness of any of its provisions. Speaking more specifically, the questions involved are: Was the new Judiciary Article adopted by the people without violating the existing Pennsylvania Constitution of 1874, or the Constitution of the United States, or any pertinent Act of the Legislature?


The Commonwealth contends that none of the questions raised by appellants nor the Constitutionality of the new Judiciary Article itself is justiciable, because the ultimate sovereign power of our Government reposes in the people and the people have approved by their vote the new Judiciary Article. The Attorney General supports this position by a reference to Woods's Appeal, 75 Pa. 59; Wells v. Bain, 75 Pa. 39; Armstrong v. King, 281 Pa. 207, 126 Atl. 263; Taylor v. King, 284 Pa. 235, 130 Atl. 407.

In Taylor v. King, 284 Pa., supra, the Court considered a mandamus action to compel the Secretary of the Commonwealth to advertise a proposed Constitutional Amendment. The Court said, inter alia (page 239):"The Constitution of the State may be legally amended in the manner specifically set forth therein, or a new one may be put in force by a convention duly assembled, its action being subject to ratification by the people,

[ 433 Pa. Page 411]

*fn3 but these are the only ways in which the fundamental law can be altered. . . .

"There may be technical error in the manner in which a proposed amendment is adopted, or in its advertisement, yet, if followed, unobjected to, by approval of the electors, it becomes a part of the Constitution. . . ."

In Armstrong v. King, 281 Pa., supra, the Court held that the bonus amendment which had previously been submitted to and rejected by the people under the authority of Article XVIII of the 1874 Constitution could not again be submitted within the five-year period, and enjoined the officers of the Commonwealth from advertising the proposed amendment. The case is well stated in the Syllabus (page 207): "5. Where such proposed amendment has been adopted by two successive legislatures, has been approved by a majority of the electors, has been acted upon by those charged with administration under it, and public or private rights would be injuriously affected by setting it aside, it is too late to do so, even by a direct attack on the ground that it was submitted for approval at the wrong time, and it cannot then be collaterally attacked for any reason." The Court said (page 214): "Under what circumstances, if any, a direct attack can be made on a constitutional amendment, after adoption by the people, because of a failure to comply strictly with some procedural condition leading up to the submission, has been the subject of many and lengthy opinions, with results impossible of reconciliation." Although unnecessary to the result reached, the Court again approved the calling of a Convention to amend the Constitution of this Commonwealth if approved by vote of the people, and stated that mere errors of procedure would not invalidate the vote of the people.

[ 433 Pa. Page 412]

The Attorney General contends that the aforesaid cases hold that the Constitutionality of a Constitutional amendment can be challenged in the Courts before its approval by the electorate, but never after. Although some language in these cases may support the Commonwealth, this Court nevertheless did take jurisdiction and considered the questions raised.

Wood's Appeal, 75 Pa., supra, contains some language, as do the cases above, which supports the Attorney General's contention that a Constitutional amendment can be challenged in the Courts before its approval by the electorate but never after. Assuming these cases are apposite, if they hold as the Commonwealth contends, the foolishness of such a holding in the present ear is obvious. If there is a palpable violation or violations of the existing Constitution, the Commonwealth contends that that question or issue is justiciable if decided by the Courts one week or one day prior to the election, but is not justiciable one day after the people have voted to approve or adopt the Amendment, no matter how clearly the provisions of the existing Constitution may have been violated. Furthermore, under the theory of the Commonwealth, a trial Court or an appellate Court could unintentionally or intentionally enable a palpable violation or violations of the Constitution of Pennsylvania, or of the Constitution of the United States, to become Constitutional and non-justiciable,*fn4 if, through an overload of work, or inadvertence, or laziness, or incompetence, or illness, or for any reason whatsoever it failed to render a decision before the question was approved by the vote of the people. However, the recent decisions of the Supreme Court of the United States are analogous and controlling. They expressly and specifically hold that (1) a vote of the people cannot validate and Constitutionalize

[ 433 Pa. Page 413]

    anything which violates a provision of the Constitution, and (2) this question or issue of Constitutionality is justiciable after the voters have adopted such a provision: Baker v. Carr, 369 U.S. 186; Reynolds v. Sims, 377 U.S. 533; Wesberry v. Sanders, 376 U.S. 1; Lucas v. 44th General Assembly of Colorado, 377 U.S. 713; Jordan v. Silver, 381 U.S. 415. Cf. Hunter v. Erickson, 393 U.S. 388, 37 L.W. 4091 (1969); cf. also Butcher v. Bloom, 420 Pa. 305, 216 A.2d 457.

These cases demonstrate that Constitutionally ordained rights must and will be protected by the Courts against the will as well as against the vote of a majority of the people. In Lucas v. 44th General Assembly of Colorado, 377 U.S., supra, the Court pertinently said (pp. 736-737): "Courts sit to adjudicate controversies involving alleged denials of constitutional rights. . . . An individual's constitutionally protected right to cast an equally weighted vote cannot be denied even by a vote of a majority of a State's electorate,*fn5 if the apportionment scheme adopted by the voters fails to measure up to the requirements of the Equal Protection Clause. Manifestly, the fact that an apportionment plan is adopted in a popular referendum is insufficient to sustain its constitutionality or to induce a court of equity to refuse to act. As stated by this Court in West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, ' One's right to life, liberty, and property . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.'*fn5 A citizen's constitutional rights can hardly be infringed simply because a majority of the people choose that it be.*fn5 We hold that the fact that a challenged legislative apportionment plan was approved by the electorate is without federal constitutional significance, if the scheme adopted fails to satisfy the basic requirements of the Equal Protection

[ 433 Pa. Page 414]

Clause, as delineated in our opinion in Reynolds v. Sims."

In Jordan v. Silver, 381 U.S. 415, the California Constitution reserved to the people of California the power to propose Constitutional amendments by filing a petition with the Secretary of State, signed by eight per cent of the persons who voted in the preceding gubernatorial election. The voters of California approved a plan to provide a Federal-type plan for the election of senators and representatives in California. The plan provided, inter alia, for a Senate composed of 40 members with detailed provisions for their senatorial districts. This plan was approved by a vote of the people, and three times thereafter the people voted against changing this apportionment system for the senatorial election. Notwithstanding the vote of the people, the Supreme Court held this senatorial apportionment and election by the people to be invalid under the Court's decisions in Reynolds v. Sims, 377 U.S., supra, and companion cases.

To summarize: It is a traditional and inherent power of the Courts to decide all questions of Constitutionality, and the recent decisions of the Supreme Court of the United States hold that alleged violations of the Constitution are justiciable even after they have been voted upon and approved by the people.

The Use of the Constitutional Convention

On March 15, 1967, the Governor of Pennsylvania approved Act No. 2 of 1967 which provided for a limited Constitutional Convention. Appellants contend that this Constitutional Convention method was unconstitutional because Article XVIII of the 1874 Pennsylvania Constitution*fn6 sets forth in great detail the manner in which the Constitution of Pennsylvania may be

[ 433 Pa. Page 415]

    amended and contains no provision for the calling of a Constitutional Convention. Nevertheless, this Court has several times previously held that amendments to our prior and existing Constitution may be initiated by the calling of a Constitutional Convention, provided a majority of the electors vote in favor of such a call. Unmindful of the fact that the Constitution of 1874, which has been the framework of our State Government for over 90 years, was adopted by the convention method at a time when the amendatory provisions of the then existing Constitution did not prescribe a convention as a method for Constitutional change, appellants contend that nowhere in any Article or provision of the Constitution is there any authority for the calling of a Constitutional Convention for the purpose of permitting the people to amend the Constitution. Appellants also forget that the provisions for the adoption of the Constitution of the United States directly contravened Article XIII of the Articles of Confederation which were drawn up and submitted to the people through a Constitutional Convention, and that 12 of the original 13 State Constitutions contained no amendment provisions, yet all of them were amended from time to time by the Convention method. Appellants further contend that a failure to follow the clear and specific amendment provisions renders the new Judiciary Article invalid and void.

We reaffirm our prior decisions which have consistently held that so long as a Constitutional Convention is not expressly prohibited by the then existing Constitution, it represents a proper manner and method in which the citizens of Pennsylvania may initiate an amendment of their Constitution. Taylor v. King, 284 Pa., supra; Armstrong v. King, 281 Pa., supra; Wells v. Bain, 75 Pa., supra; Woods's Appeal, 75 Pa., supra; Article I, Section 2, of the 1874 Constitution of Pennsylvania.

[ 433 Pa. Page 416]

Conformity with the Constitutional ...

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