Commonwealth v. Hyneman

Dissenting Opinion by

Mr. Justice Moschziskeb,

July 10, 1913:

The power of the judiciary to declare void a legislative enactment which contravenes the organic law, is established, but this is subject to the restriction that no court has the right to exercise such power unless the *264legislation attacked so plainly violates some mandate of the Constitution that it cannot be sustained under any reasonable construction. It is the duty of every judge, without regard to his opinion as to the necessity for or the wisdom of the act of assembly before him, to search for a construction which will support the legislative interpretation of the Constitution, and an act can never properly be declared void unless this is found to be impossible. The failure to observe this fundamental principle has in many instances brought justifiable reproach upon the judiciary; it seems to> me that the majority view in the present case represents a departure therefrom, and in this I cannot concur.

With the superfluous words eliminated, Section 4, of the Constitution reads: “Until otherwise directed by law the Courts of Common Pleas shall continue as at present established, except as herein changed” ; and Section 6: “In the County of Philadelphia all the jurisdiction and powers now vested in the District Courts and Courts of Common Pleas, subject to such changes as may be made by this Constitution or by law, shall be vested in five distinct and separate courts of equal and co-ordinate jurisdiction composed of three judges each. The number of judges in any of said courts, or in any county where the establishment of an additional court may be authorized by law, may be increased from time to time, and whenever such increase shall amount in the whole to three, such three judges shall compose a distinct and separate court as aforesaid.”

The only question is, do the words of the above quoted section require the construction adopted by the majority, which limits the control of the legislature over the re-organization of the courts of Philadelphia County in such a manner and to such an extent that the present act cannot stand? In approaching a solution of this question we must start with the thought that the general assembly has full authority to reorganize existing courts, subject only to the restrictions expressed in the *265Constitution, and that any doubt concerning the extent of the limitations upon this right must be resolved against its abridgement. When we keep this thought in mind, it is clear that the majority construction is not at all necessary; therefore, it represents an unwarranted exercise of power.

A mere glance at the part of the Constitution in question will show to anyone that the unit in contemplation is the separate court and not the combination of courts ; this is plain, for each court is expressly recognized throughout the section as “a distinct and separate court.” With this key to the situation, when the words dealing with the subject of an .increase are reached, the language, “the number of judges in any of said courts may be increased from time to time, and whenever such increase shall amount in the whole to three, such three judges shall compose a distinct and separate court,” can well be read to mean, “such increase in the number of judges in any one of said courts,” and not “in all of said courts”; thus the word “whole” is made to qualify the word “increase,” which is warranted by the rules of grammar as well as the principles of legal construction. The section is susceptible of this interpretation, and hence it should be so construed. To my mind, under the rules controlling constitutional interpretation, it not only should but must be so construed; and with the Constitution thus read, the act before us is valid. If there is a doubt as to the real meaning of the Constitution, all our cases hold that it must be resolved in favor of and not against the validity of the act; and under the circumstances, particularly when we find this court almost evenly divided upon the subject, it is difficult to understand how the language for consideration can be looked upon as free from doubt.

It seems to me that the endurance of the American system under which constitutional questions are submitted to the courts for final determination is dependent on a close adherence to the general principles stated in *266this opinion, and that the majority have in effect ignored these principles in the present case; therefore, I note my dissent.