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decided: October 7, 1977.



William J. Rundorff, Henry J. Russo, Asst. Public Defenders, Mercer, for appellants.

Joseph J. Nelson, Dist. Atty., Robert F. Banks, Asst. Dist. Atty., Mercer, for appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former Chief Justice did not participate in the decision of this case. Pomeroy, J., files a concurring opinion. Roberts, J., files a dissenting opinion. Manderino, J., files a dissenting opinion.

Author: Nix

[ 474 Pa. Page 258]


Appellants James William Sutley and James D. Parker were convicted in the Court of Common Pleas of Mercer County in unrelated prosecutions for possession of marijuana, a felony under the Drug, Device and Cosmetic Act of 1961, Act of September 26, 1961, P.L. 1664, § 4, 35 P.S. § 780-4 (1964) (now repealed). Appellant Sutley entered a plea of guilty to the charge and was sentenced on July 2, 1971, to a term of imprisonment for not less than one nor more than three years in a state correctional institution. Appellant Parker, who also pleaded guilty to the charge, was sentenced on March 3, 1972, to a term of one and one half to four years in a state correctional institution. No direct appeal was taken from the judgment of sentence by either appellant.

Thereafter, on April 14, 1972, the General Assembly enacted the Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, No. 64, § 1, 35 P.S. § 780-101 et seq. (Supp.1976-77) which repealed and extensively revised the prior law governing this field.*fn1 Among the more significant changes, the new Act classified possession of marijuana as a misdemeanor, and the penalties for violation were accordingly reduced. The maximum sentence provided upon conviction for possession of more than thirty grams was up to one year of imprisonment and/or a five thousand dollar fine,*fn2 while possession of thirty grams or less resulted in no more than a thirty day prison term and/or a fine of one hundred dollars.*fn3

[ 474 Pa. Page 259]

The revised Act was subsequently amended by the legislature on July 25, 1973, to provide for the resentencing in certain cases of individuals convicted of possession of marijuana under the prior Act. The amended section provides in full as follows:

The provisions of this act shall not affect any act done, liability incurred, or right accrued or vested, or affect any suit or prosecution pending to enforce any right or penalty or punish any offense under the authority of any Act of Assembly, or part thereof, repealed by this act: Provided, however, That in any case final on or before June 12, 1972 in which a defendant was sentenced for the commission of acts similar to those proscribed by subsection (16) or (31), but not (30), of section 13(a) of this act, such defendant shall be resentenced under this act upon his petition if the penalties hereunder are less than those under prior law and in such case the prior criminal record of the defendant shall be expunged to the extent that such record shall no longer contain any reference to the prior grade of the offense if higher than the grade of the offense to which defendant is resentenced. Act of April 14, 1972, P.L. 233, No. 64, § 38, as amended by Act of July 25, 1973, No. 54, § 1, 35 P.S. § 780-138 (Supp.1976-77).

Appellants Sutley and Parker, in separate petitions filed with the Court of Common Pleas of Mercer County, sought resentencing under the amendment. It is conceded that both petitions alleged facts which, if proven would have required that appellants be resentenced in accordance with the amendment. A rule was issued upon the Commonwealth to show cause why the appellants should not be resentenced. The Mercer County District Attorney filed an answer to the petitions alleging only that the statute upon which appellants relied was unconstitutional. The lower court agreed and dismissed the petitions for resentencing. A timely appeal from the order dismissing the petitions was

[ 474 Pa. Page 260]

    taken to the Superior Court, and that court certified the matter here for disposition.*fn4 We now affirm.

The court below determined that the 1973 amendment was constitutionally repugnant as violating the constitutional doctrine of separation of powers, because the enactment intruded upon the governor's power to commute sentences under Article IV, Section 9 of the Pennsylvania Constitution, Pa.Const. art. IV, § 9 (1968) and operated as a legislative impairment of existing final legal judgments. We agree that the amendment undermines and thus fatally interferes with final judgments of the judiciary and therefore we need not consider the alternative basis of constitutional invalidity relied upon by the court below.

We note at the outset that it is a fundamental principle in our conception of judicial authority that courts are not to inquire into the wisdom, reason or expediency behind a legislative enactment. Commonwealth v. Moir, 199 Pa. 534, 49 A. 351 (1901). Nor are the motives of the legislators in passing the act open to judicial consideration. Commonwealth v. Keary, 198 Pa. 500, 48 A. 472 (1901). Our inquiry in such cases can only be directed to the manner in which the legislature effectuates its will, to insure that the enactment does not transgress some specific constitutional prohibition.

The standards to be applied in making this determination are equally well settled. It is axiomatic that a legislative enactment is presumed to be constitutional.

"There is, of course, a strong presumption in favor of the constitutionality of statutes -- a presumption which reflects on the part of the judiciary the respect due to the legislature as a co-equal branch of government." (footnotes omitted) School Districts of Deer Lakes and Allegheny Valley v. Kane, 463 Pa. 554, 562, 345 A.2d 658, 662 (1975).

Accordingly, the burden rests on those alleging unconstitutionality to show that an enactment "clearly, palpably and

[ 474 Pa. Page 261]

    plainly" violates the constitution. Tosto v. Pennsylvania Nursing Home Agency, 460 Pa. 1, 331 A.2d 198 (1975); Daly v. Hemphill, 411 Pa. 263, 191 A.2d 835 (1963); Rubin v. Bailey, 398 Pa. 271, 157 A.2d 822 (1960); Clark v. Meade, 377 Pa. 150, 104 A.2d 465 (1954); Lighton v. Abington Township, 336 Pa. 345, 9 A.2d 609 (1939); Sharpless v. Mayor of Philadelphia, 21 Pa. 147 (1853).

We are satisfied in the instant case that the appellee has sustained its burden of demonstrating the unconstitutionality of the 1973 amendment. A plain reading of the enactment reveals that it is couched in mandatory language; it unquestionably directs that a defendant "shall be resentenced under this act upon his petition if the penalties hereunder are less than those under prior law . . ." The amendment is, in operation and effect, a legislative command to the courts to open a judgment previously made final, and to substitute for that judgment a disposition of the matter in accordance with the subsequently expressed legislative will. The vesting in the legislature of the power to alter final judgments would be repugnant to our concept of the separation of the three branches of government.

The doctrine of the separation of governmental powers into the legislative, executive and judicial departments has been inherent in the structure of this Commonwealth's government since its inception.

[ 474 Pa. Page 262]

This separation appeared in Pennsylvania as early as 1776 in the Plan or Form of Government for the Commonwealth or State of Pennsylvania, prepared by the convention in that year. The separation was continued in our constitutions of 1790, of 1838, and of 1873. Accordingly, when the Constitution of 1873 was adopted, the people acted in the light of generations of experience with the operation of the doctrine of the separation of powers, and with the resulting necessity for judicial review to resolve differences of opinion between the legislative, executive or judicial departments concerning the scope and extent of the delegated powers. Dauphin County Grand Jury Investigation Page 262} Proceedings (No. 2), 332 Pa. 342, 352-53, 2 A.2d 804, 807 (1938) (footnote omitted).

See generally, Commonwealth ex rel. Carroll v. Tate, 442 Pa. 45, 274 A.2d 193 (1971); Pennsylvania Company v. Scott, 346 Pa. 13, 29 A.2d 328 (1943); Wilson v. Philadelphia School District, 328 Pa. 225, 195 A. 90 (1937); Commonwealth v. Mathues, 210 Pa. 372, 59 A. 961 (1904); De Chastellux v. Fairchild, 15 Pa. 18 (1850); Greenough v. Greenough, 11 Pa. 489 (1849). Similarly, we have long recognized that the judicial branch is not subordinate to the other branches of government but is co-equal, distinct and independent.

The judiciary is a constituent or coordinate part of government; it is not subordinate to other powers, nor does it depend for existence on the legislative will. Its powers come directly from the people, without intervening agency. From the very nature of its time-honored powers, it should be kept a separate, distinct and independent entity in government . . . The domain of the judiciary is in the field of the administration of justice under the law; it interprets, construes and applies the law. Commonwealth v. Widovich, et al., 295 Pa. 311, 322, 145 A. 295, 299 (1929).

See also Bedford v. Shilling, 4 S. & R. 401, 410 (1818). Thus, it necessarily follows that any encroachment upon the judicial power by the legislature is offensive to the fundamental scheme of our government. Bailey v. Waters, 308 Pa. 309, 162 A. 819 (1932); Ervine's Appeal, 16 Pa. 256 (1851); Greenough v. Greenough, supra.

We recognize that the doctrine of the separation of powers was not intended to hermetically seal off the three branches of government from one another. It was obviously intended that there would be a degree of interdependence and reciprocity between the various branches. Cf. Buckley v. Valeo, 424 U.S. 1, 122, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). It is also true as noted by the dissenters that there may be some areas where the dividing lines between the respective responsibilities of the three branches may be difficult to

[ 474 Pa. Page 263]

    define.*fn5 Stander v. Kelley, 433 Pa. 406, 422, 250 A.2d 474, 482 (1969). However, a recognition that final judgments of the judicial branch are not to be interfered with by legislative fiat in this Commonwealth has long been established and is no longer open to serious question. As early as 1859 this Court observed:

In the very nature of things, a law that is enacted after the case has arisen can be no part of the case. Such a law can have only a forced and unnatural relation to the case, and must produce an untrue decision; a decision, not of the case arising between the parties, as it ought to be, but of a case partly created by the legislature.

When, therefore, the constitution declares that it is the exclusive function of the courts to try private cases of disputed right, and that they shall administer justice "by the law of the land," and "by due course of law;" it means to say, that the law relating to the transaction in controversy, at the time when it is complete, shall be an inherent element of the case, and shall guide the decision; and that the case shall not be altered, in its substance, by any subsequent law.

Menges v. Dentler, 33 Pa. 495, 498-9 (1859).

We further explicated this concept in our decision in Pennsylvania Co. v. Scott, 346 Pa. 13, 16-17, 29 A.2d 328, 329 (1942):

"It is elementary that the legislature may not, under the guise of an act affecting remedies, destroy or impair final judgments obtained before the passage of the act, and this principle prohibits not only a statutory re-opening of cases previously decided by the court but also legislation affecting the inherent attributes of judgments . .

[ 474 Pa. Page 264]

There are two reasons for this limitation of legislative power; . . . that under our system of the division of governmental powers the legislature cannot invade the province of the judiciary by interfering with judgments or decrees previously rendered."

Again in Leahey v. Farrell, 362 Pa. 52, 66 A.2d 577 (1949), we reaffirmed the proposition that a legislative attempt to alter the effect of final judicial action imposed under prior law is a direct assault upon the power of the judicial branch:

The legislature cannot, by an act of assembly, overrule a judicial decision: Greenough v. Greenough, 11 Pa. 489; it may not direct a statute to be construed in a certain way: In re East Grant Street, 121 Pa. 596, 16 A. 366; Titusville Iron Works v. Keystone Oil Co., 122 Pa. 627, 15 A. 917; it cannot grant a new trial: De Chastellux v. Fairchild, 15 Pa. 18; or order an illegitimate child to be regarded as legitimate under terms of prior deed: Appeal of Edwards, 108 Pa. 283; it may not change the effect of judgments or decrees previously rendered: Pennsylvania Company, etc., v. Scott, 346 Pa. 13, 29 A.2d 328.

Id. 362 Pa. at 56, 66 A.2d at 579 (emphasis added).

Thus, it is clearly established in this jurisdiction that even though the legislature possesses the power to promulgate the substantive law,*fn6 judicial judgments and decrees entered pursuant to those laws may not be affected by subsequent legislative changes after those judgments and decrees have become final. Conceding the inviolability of final judgments of the judiciary, even though the legislature possesses the broad power to enact the substantive law, it is difficult to appreciate the thrust of appellants' argument that the result should be different in this instance because the legislature has the right to prescribe the permissible range of punishment to be meted out for crimes. The legislature's right to promulgate the penal sanctions for the various offenses is only a small segment of its broader power

[ 474 Pa. Page 265]

    to promulgate all of the substantive law for this jurisdiction. Appellants have failed to suggest any reason for carving an exception where the power to regulate sentences is involved. To the contrary, our caselaw indicates that the same principles obtain.*fn7

This Court has long recognized the applicability of the principles of "the inviolability of final judgments of the judiciary" in criminal cases as well as in civil cases. As early as 1862, this Court held that a statute providing for a graduated deduction from the term of imprisonment for which a prisoner was sentenced, as a reward for good conduct, was a constitutionally impermissible interference with the final judgment of our courts. Commonwealth ex rel. Johnson v. Halloway, 42 Pa. 446 (1862).

It is to be observed, that these questions have no reference to the power of the legislature to prescribe a general rule of law that shall be inconsistent with a previous judicial decree. Such a rule, when it operates on future cases and not retrospectively, is quite legitimate. Their power to legislate in that manner is not to be doubted. But under the act in question the good conduct of a particular individual, under judicial sentence, is to work out for him an abatement of a part of his sentence. In respect to one of the relators who was convicted and sentenced before the law was passed, it is considered very clear that it is a legislative impairing of an existing legal judgment.

[ 474 Pa. Page 266]

Id. at 448.

This language was cited with approval in Commonwealth v. Scoleri, 399 Pa. 110, 134-5, 160 A.2d 215, 227-28, cert. denied, 364 U.S. 849, 81 S.Ct. 93, 5 L.Ed.2d 72 (1960); see also, Commonwealth ex rel. Haun v. Cavell, 190 Pa. Super. 346, 154 A.2d 257 (1959).

Appellants' argument that the legislature's power to determine the penological system for this state prevents a usurpation of judicial power in these cases was addressed and answered by this Court in Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 28 A.2d 897 (1942). There, in a learned opinion by Mr. Justice (later Chief Justice) Stern, it was noted that although the General Assembly had the power to provide the courts such measure of discretion in the imposition of sentences as it deemed proper, once that discretion had been exercised in accordance with existing law a final judgment of sentence could not be disturbed by a subsequent legislative change.

"While the court determines the guilt or innocence of the accused and pronounces upon the guilty the penalty provided by law, the manner of executing the sentence is prescribed by the legislature, to be put in force and effect by administrative officers.

"The exercise of the power of parole being but an administrative function which does not impinge upon the judicial power of sentencing the accused in conformity with the law, it follows that the present act may constitutionally be applied to cases where sentences were imposed before its effective date. The sentence is in no wise interfered with, especially since the act provides that a parole cannot be granted until the expiration of the minimum term prescribed by the court. The parolee is not discharged, but merely serves the remainder of his sentence by having his liberty restrained in a manner analogous to that employed in the 'trusty' or 'honor' system of prison discipline. 'The parole authorized by the statute does not suspend sentence or operate to shorten the term.'

[ 474 Pa. Page 267]

" It is only if the duration of the sentence is not affected that a parole does not infringe upon judicial power ; therefore we are of opinion that the portion of section 21 which attempts to give to the board the power to extend the period of parole beyond the maximum term imposed by the sentence, and section 24, which attempts to give to the board the power to discharge a parolee before the expiration of the parole period, are unconstitutional. The fixing of the term of the sentence is exclusively a judicial function."

Id. 345 Pa. at 588-89, 28 A.2d at 901 (footnote omitted) (emphasis added).

It is argued that the Cain Court in permitting the application of a statute providing for parole to be applicable to sentences that were final at the time of its enactment was an implicit rejection of the "inviolability of final judgments" concept at least with respect to the right of the legislature to modify existing judicially-imposed sentences. This argument ignores the clear thrust of the Cain decision and misperceives the nature of the court's sentencing power. The Cain opinion stressed the fact that the parole power did not impinge upon the traditional judicial function involved in the sentencing process.

"It is not . . . an interference with judicial authority, nor an assumption of judicial power, for the supervisors of penal institutions to administer the very conditions of punishment or clemency which the law prescribed and itself wrote into the judge's sentence. Where conditions of punishment are beforehand prescribed, and form constituent parts of the sentence of conviction, it is not an assumption of judicial power for an administrative officer, acting within the law and the terms of the sentence, to take upon himself the task of ascertaining whether the conditions have been complied with. While the court determines the guilt or innocence of the accused and pronounces ...

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