Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1971, No. 1260, in case of Commonwealth ex rel. Arlen Specter, District Attorney of Philadelphia, and John Patrick Walsh, President Judge of the Traffic Court of Philadelphia v. Louis E. Vignola. Appeal of Commonwealth.
Israel Packel, Special Assistant Attorney General, with him J. Shane Creamer, Attorney General, for Commonwealth, appellant.
I. Raymond Kremer, with him James D. Crawford, Assistant District Attorney, and Kremer, Krimsky & Luterman, for appellees.
Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Pomeroy joins in this dissent.
On February 8, 1971, Governor Milton J. Shapp appointed Louis E. Vignola as President Judge of the Traffic Court of Philadelphia, just after issuing an Order removing John Patrick Walsh from the office of President Judge of the said Court. The Constitutional validity of this exercise of gubernatorial power of removal and appointment is the narrow but important question here involved.
John Patrick Walsh was elected as a Magistrate in a Municipal Election held November 7, 1967, for a term of six years, commencing the first Monday of 1968. Walsh was one of a number of Magistrates assigned as Judges to the Traffic Court by virtue of and under Judiciary Article V, Section 6(c), and under Section 16(e) of the Schedule to the Judiciary Article, of the Constitution of 1968. On January 1, 1969, Governor Raymond P. Shafer appointed and commissioned Judge Walsh as President Judge of the Traffic Court. Governor Shafer's appointment reads, in pertinent part, as follows:
"Therefore, Know Ye, that in conformity to the provisions of the Constitution and laws of the Commonwealth of Pennsylvania, in such case made and provided, I do by these presents Commission you, John Patrick Walsh, to be President Judge of the Traffic Court of the City of Philadelphia.
"You Are, Therefore, to have and to hold the said office, together with all the rights, powers and emoluments thereunto belonging, or by law in anywise appertaining, From January 1, 1969, until the First Monday of January 1974, if you shall so long behave yourself well."*fn1
On February 8, 1971, Judge Walsh instituted an action in quo warrantor to challenge the appointment by Governor Shapp of Judge Louis E. Vignola as President Judge of the Traffic Court. A three-Judge Court from the Court of Common Pleas of Philadelphia was appointed to hear and decide the case. The lower Court heard argument on the preliminary objections in the nature of a demurrer, aided by a stipulation in which the parties agreed (inter alia) that there were no disputed facts. The lower Court held that Governor Shapp's removal of Judge Walsh from the office of President Judge of the Traffic Court violated the Constitution and his subsequent appointment of Judge Vignola to that office was a nullity. This appeal followed.
The appointment by Governor Shafer of Judge Walsh as President Judge of the Traffic Court was made pursuant to Section 16(i) of the Schedule*fn2 to Judiciary Article V. Section 16(i) pertinently provides: " The Governor shall appoint one of the judges of the traffic court as president judge*fn3 for a term of five years or at the pleasure of the Governor."
We hold that Section 16(i) of the Schedule to Article V gives the Governor at the time of the appointment an alternative choice of either appointing a President Judge of the Traffic Court to serve "for a term of ...