Concurring and Dissenting Opinion by
Mr. Justice Musmanno :Let it be said at once that the decision in this case has nothing to do with the question being argued in the public square as to whether a district attorney must, under the law, resign his office in order to be a candidate for the office of Mayor of Philadelphia. That question is as foreign to the issue in this litigation as the proposed trip to the moon is foreign to the contemplated deep-sea-diving expedition in the Atlantic to raise the ill-fated Andrea Doria.
The proposition as to whether a district attorney in office may be a candidate for mayor is referred to here only because the principle of judicial notice compels us to mention it. Public statements by high ranking officials in government, observations by public commentators, and a widespread discussion of the subject in all the communication media oblige us to take cognizance of what is common knowledge. This is neces*523sary in order to obviate the possibility, indeed the probability, that there may be read into the decision of this Court what is not there, and which has no right to be there. The question as to whether a district attorney may be a candidate for mayor without resigning his office was never at any time part of the current litigation. It does not appear in the formal pleadings, it is not mentioned in the printed briefs, it was not orally argued when the parties appeared before this Court to present their respective positions. It is not in this case at all.
To attempt to use the decision of this Court as a judicial pronouncement on a matter which is in no way before us is like trying to grow pears on an apple tree. The apple hanging on the tree of decision in this case has to do with the proposition as to whether the District Attorney of Philadelphia may, according to law, in discharging the functions of his office, subpoena to his office such persons he deems amenable to interrogation. That is the issue, that is the apple, and no amount of argumentation or interpretation can transform that apple into a pear. No mixing of seeds, no amount of botanical treatment or alimentation can grow a coconut on a banana tree, and no type of analysis, construction, exposition or diagnosis can read into this decision what is absolutely not there.
The District Attorney’s brief proclaims the issues in the case at bar as follows:
“I. Does the District Attorney of Philadelphia have subpoena power under Section 8-409 of the Philadelphia Home Rule Charter?”
“II. Did the District Attorney of Philadelphia have the power under the Philadelphia Home Rule Charter to institute the action in the Court below?”*
*524He answers these questions in the affirmative. It was argued by him, and by other attorneys speaking in behalf of the Commonwealth, that the district attorney has the right to subpoena any person, any time, anywhere. It is not to be doubted, of course, that the district attorney may conduct investigations. Indeed, he could not discharge the constitutional duties of his office without investigation. These investigations can be conducted, and from time immemorial have been conducted, outside his office at the scene of the asserted crime, or at places geographically or objectively associated with the locus delicti. County detectives, under the direction of the district attorney, call on people linked in some way to the event under investigation. The county detectives visit witnesses at their homes and at their places of employment, and elsewhere, and then report to the district attorney what they have ascertained. This is proper and indeed necessary.
But to subpoena persons to the district attorney’s office, under penalty of jail, for refusing to obey the subpoena, is a policeman in a different uniform. Unlimited subpoena jurisdiction would arm the district attorney with a weapon of harassment and oppression which could destroy the right of privacy which is the constitutional prerogative of every American. Such subpoena powers smack of the search and seizure practices of the tyrannical government of George III, which our Revolutionary War forefathers wiped out with their blood on the field of battle. And, it was to prevent any future violation of the right of the people to be secure in their homes, that the United States enacted Amendment IV of the Federal Constitution, and Pennsylvania enacted §8, Article I of our own State Constitution.
In spite of these constitutional sentinels guarding the rights of liberty of our citizens, the district attorney seeks the authority to drag people to his office willy*525nilly, there to await his pleasure. This kind of authority would allow district attorney subpoena-servers to knock at doors in the middle of the night. This type of subpoena domination could take mothers away from their small children, invalids out of hospitals, and aged persons out of institutions. Nowhere in the United States does a district attorney boast such governmental omnipotence. Indeed, no official in any civilized democratic country may wield such a despotic club. Only in Communist countries and in police states is that kind of despotism part of government.
The subpoena is perhaps the most potent edict issuing out of peaceful civil government, next to conscription. In effect, the subpoena is temporary conscription. Of course the subpoena is indispensable in the orderly administration of justice, but, because of its arbitrariness, it is to be exercised only under the supervision and control of the courts, the subpoenaed person being protected by the law at every step of the proceedings. Thus, when a witness is subpoenaed to testify before a grand jury, he appears before a body of sworn arbiters and he enjoys protection because of the very multiplicity of the auditors; when he testifies in court, he does so in an open courtroom under the watchful and protective eye of a judge. But if he is brought before a district attorney, he stands before an accusatory officer, is subjected to an ex parte proceeding, and can call on no one to protect him. Fairness rebels, justice condemns, and our whole legal system, which frowns on ex parte proceedings, denounces such an infringement of the inalienable rights of privacy and liberty.
What the district attorney is arguing for, in effect, is that we allow him to make himself a one-man grand jury. Obviously, this is constitutionally impossible.
The district attorney, in arguing before us, said that no one could be injured by his wielding of subpoenas *526because uo penalty would be imposed on an unwilling witness without his having the right to go to court to demand a hearing. This is scant comfort to the man who depends on daily toil for a living, and who would be compelled to take time off from work, losing his wages, in order to protect himself from a subpoena improvidently issued. This would be no relief to the housewife who has children to care for. This would not help the business man with commercial commitments requiring his presence. All those who would protest to being hauled before a non-judicial official, for inquisition on any subject, at the district attorney’s pleasure, would be compelled to hire lawyers, although innocent of wrongdoing, in order to prevent an even greater deprivation of their rights. Going into court they might have to wait around for days to be heard, while their reputations would suffer from inferences and implications that some culpable act had been committed by them. All this makes for coercion and injustice which have no place in America where one has the right to be left alone until the judicial machinery moves with ample protection for the rights of all concerned.
As I have already indicated, the district attorney may conduct investigations. The Act of June 3, 1919, P.L. 369, §1, as amended, 16 P.S. §7741, describes the duties of county detectives to “investigate and make report to the district attorney as to the conduct in office of magistrates, constables, deputy constables, and other officers connected with the administration of criminal justice; to make such investigation and endeavor to obtain such evidence as may be required by the district attorney in any criminal case; and perform such other duties as the district attorney may direct.”
In spite of the fact that this Act specifically refers to the investigation of magistrates, and specifically declares, that the district attorney may require detec*527tives to obtain evidence, it says nothing about the issuance of subpoenas. If the Legislature had intended that the district attorney should have the authority to issue subpoenas, in connection with the investigations of magistrates, or in any other investigation, this is where that power should have been granted.
The Majority Opinion speaks of the district attorney as a “county officer.” That is what he was. He is no longer a county officer. As Chief Justice Bell points out in his Dissenting opinion: “This Constitutional amendment [Adopted November 6,1951] in the clearest language specifically provided that all county officers shall become officers of the City of Philadelphia.” (Emphasis in original.)
The Chief Justice said further: “Moreover, under the provisions of the Home Buie Charter and the Constitutional Amendment of 1951, this County District Attorney became a City officer who is elected and paid by the citizens of Philadelphia.” (Emphasis in original.)
Article XIV of the Constitution, amended by addition of §8, on November 6, 1951, states: “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.”
It will be noted that, although the county officers become city officers, their duties are to continue as they were “at the time this amendment becomes effective.” And, of course, no one at all contends that the district attorney ever had common law or constitutional subpoena powers. The district attorney himself, in arguing his case before this Court, insisted that under the Philadelphia Home Buie Charter he possessed the sub*528poena rights granted city officials. The Crime Commission of Philadelphia, Inc., in its brief amicus curiae, supporting the district attorney, declared that the district attorney is a “city officer.” The Greater Philadelphia Movement and Chamber of Commerce of Greater Philadelphia, in their brief as amici curiae, supporting the district attorney, declared that by virtue of the City-County Consolidation Amendment, the district attorney has been made an officer of the City of Philadelphia. These positions are all well taken, since there can be no doubt that the district attorney is a city officer under the Philadelphia Charter, but his status as a city officer does not confer on him powers greater than those which were possessed by the District Attorney of Philadelphia County before he became a city officer.
It is commonplace history that the district attorney’s office is an offshoot of the office of Attorney General of the Commonwealth. Prior to 1850, the Attorney General was the chief prosecuting officer of the Commonwealth. He was represented in the various counties by deputies. In 1850, the office of District Attorney was created and that officer was charged with the performance of the duties theretofore discharged by the deputies attorney general. The Attorney General may, in certain situations, supersede the district attorney and act in his stead. The Attorney General admittedly has no subpoena powers. If the Attorney General has no subpoena powers, certainly the district attorney, who may be displaced by the Attorney General, would have no greater powers than his superior. The second mate of a ship cannot exercise an authority denied the captain himself.
During the oral argument before this Court, I put to the attorneys for the appellee the following proposition. Suppose the district attorney in the exercise of the powers of his office concluded that he wished *529to know the drinking habits of people living in a certain area or community. “Is it the position of the district attorney,” I asked, “that the district attorney may call to his office every citizen in that community and question him as to the kind of beer he drinks, whether he takes a highball, and generally, inquire into his personal habits?” I was appalled to hear this question answered in the affirmative.
It was said, in attempted mitigation of this frightening claim of dictatorship power, that a district attorney would not abuse his authority. But we know only too well that power feeds upon power. This is a government of laws and not of men, and the way to prevent abuse of power is not to hand out the key to the Tower of London. The sure way to prevent the sway of the sceptre is not to hammer out a sceptre. Dictatorship in a district attorney’s office is just as taboo as it is in national office.
The defendant in this ease, M. Phillip Freed, is a magistrate in the City of Philadelphia. On March 10, 1966, the District Attorney of Philadelphia typed out, or had someone type for him, on his letterhead a few words in which appeared the expression: “You are commanded to appear at Room 666, City Hall, on Friday, March 18, 1966, at 10:00 a.m., and to bring with you certain papers. ..”
The district attorney entitled this paper: district attorney’s subpoena duces tecum, and it was delivered to Magistrate Freed, who refused to be intimidated by this “command” performance. He said that the district attorney had no authority to command him to proceed to Room 666, which is the location of the district attorney’s office, not a courtroom. The district attorney then petitioned the court of common pleas to issue an order “commanding compliance with the District Attorney’s Subpoena Duces Tecum.”
*530The paper signed by the district attorney, despite its imperious language, was simply a letter from the district attorney, not a subpoena duces tecum. As a book cannot be judged by its cover, a paper cannot be classified by its title. The district attorney has no authority in law to issue subpoenas. Nor does he need that power. All dockets and records in a magistrate’s office are open to public inspection. The district attorney has the right to examine those records, and if the magistrate refuses to exhibit them, there are legal means to compel obedience to the law. Ordering him to the district attorney’s office with his trappings on his back is not one of those means.
The magistracy of Philadelphia is part of the judicial system of Pennsylvania. The Pennsylvania Constitution, Art. Y, §1, provides: “The judicial power of this Commonwealth shall be vested in a Supreme Court, in courts of common pleas, courts of oyer and terminer and general jail delivery, courts of quarter sessions of the peace, orphans’ courts, magistrates’ courts, and in such courts as the General Assembly may from time to time establish.” (Emphasis supplied)
In McNair’s Petition, 324 Pa. 48, this Court said: “The office of magistrate in this Commonwealth has always been recognized as a judicial office. . . Within the sphere of their powers they have all the attributes of legally constituted courts of justice and are independent of any other tribunal except insofar as their action is reviewable on appeal.”
If the district attorney would have the power to subpoena magistrates into his office, he would also have the power to compel a judge of the court of common pleas to appear before him and answer for his decisions, producing, at the district attorney’s behest, his (the judge’s) records, documents, opinions, decisions, etc., all of which is absurd. Indeed, carrying this proposition to its logical ultimate conclusion, the *531.district attorney could summon even a Justice of the Supreme Court to stand before his high-backed chair of assumed procurator sovereignty.
It is enough merely to state these propositions to reveal the ludicrous extent of the authority sought here by the district attorney. In the joyous ringing of the Liberty Bell on that immortal July 4th of 1776, •the peal which sounded most melodious and was most comforting and assuring to the embattled colonists, now Americans,. was that of the Independence of the ■ Judiciary. What the district attorney asks for here would crack the Liberty Bell into a wider chasm than ' the wound it presently suffers.
If the district attorney possessed the power he claims in. this case, he would be in a position to generate chaos in the whole judicial system. Sitting comfortably in his office, he could write out subpoenas by the hundreds and employ drays, trucks and other vehicles to haul all the judicial records of the county to his office. He could thus destroy the courtrooms and the entire machinery of justice more effectually than an enemy could do so by dropping a bomb on William Penn’s hat.
But the situation presented in this case is even worse .than I have already outlined up to this point. The ■ function of a district attorney is to investigate and •prosecute crime-. He may not, .for personal reasons, or out of whim or caprice, subject innocent persons to surveillance, interrogation or temporary deprivation , of freedom. After all, a subpoena is just that, a fetter on a man’s liberty of movement. A subpoena com- . mands that its recipient drop all other activities and . commitments and proceed to a certain place at a certain time to give answers to certain questions put to him. •And he is not relieved of that responsibility, he is not - liberated from that mobile imprisonment, until he has answered the questions and has produced what has been demanded of him.'
*532Obviously, it would be unthinkable, or should be, that a district attorney should be empowered to summon anyone to his office and badger him with questioning, if there is no reason to assume that that person is in any way involved in the commission of a criminal deed. Is Magistrate M. Phillip Freed charged with any criminal act? Were there any circumstances which would justify his being harassed by a subpoena? Listen to the district attorney himself.
At the hearing before Judge Sdoane of the court of common pleas, Attorney Finkelstein, representing Magistrate Freed, said that his client “has nothing to hide in this case.” The district attorney affirmed this statement: “I certainly do not contradict in any way Mr. Finkelstein’s statement that Magistrate Freed has nothing to hide. There has never been any contention by the district attorney’s office of any impropriety of any nature whatsoever by Magistrate Freed.” (Emphasis supplied.)
We see here that the district attorney acknowledges, not only that Magistrate Freed is not charged with any crime, but that he is not even accused of any impropriety of any nature whatsoever!
This is about as clean a shirt as a man can wear. “No impropriety of any nature whatsoever.” And yet, in spite of that immaculate laundry worn by Magistrate Freed, in the words of the district attorney himself, the district attorney demands that Magistrate Freed leave his office, his home, his family, his duties, his companions and proceed to the office of the district attorney and stand accused, in the eyes of the public, of some kind of wrongdoing. Is this just? Is this law? I don’t think so.
Since the district attorney does not need a subpoena in this case, because he admits that Magistrate Freed is clean of any impropriety, or charge of impropriety, the only possible conclusion is that the *533district attorney desires this Court to arm him with an unlimited authority to subpoena so that he may use that authority in future situations. In other words, he asks us for a weapon to place in his armory of prosecution to employ in cases where a defendant may be just as innocent and absent of fault, as the district attorney admits Magistrate Freed is absent of fault and wrongdoing. The district attorney asks for a blunderbuss to employ as he wishes. He asks for a power to harass, intimidate and embarrass honest citizens when it might suit him to harass, intimidate and embarrass. It is not enough to say that no district attorney would so use that blunderbuss. The best way to guarantee its non-use is not to stack it in the corner of any district attorney’s office.
Even the lower court, which strangely believes that the district attorney should have the blunderbuss, admits that Magistrate Freed has done nothing wrong. The Hearing Judge said in his opinion: “I am quick to say, an investigation there is, but no present charge of wrong is made against Magistrate Freed either by what I say or in what Mr. Speeter requests.”
Yet, in spite of this exoneration of any wrongdoing on the part of Magistrate Freed, in spite of this absence of even a charge of wrongdoing, the Hearing Judge decided that the district attorney was entitled to issue a subpoena duces tecum. How did he arrive at this conclusion? He arrived at it with a syllogistic non sequitur which must take its place among the classic non sequiturs in the chronicles of sophistry. The Hearing Judge said: 1. “He [the district attorney] may investigate the conduct of magistrates. 2. He may investigate to obtain evidence in any criminal case.” After laying down these categorical premises, the Hearing Judge sweeps into his syllogistic conclusion with the statement: “It follows then that the district attorney has the statutory power of subpoena.”
*534' But how does it follow? When you say that a district attorney has the “statutory power” of subpoena, the simplest way to demonstrate that he has that statutory power is to point to the statute which gives him that power. The Hearing Judge, however, pointed to no statute as, of course, he could not. The untenability of the Hearing Judge’s syllogism may be illustrated by using medical instead of legal nomenclature. Thus, paraphrasing the Hearing Judge’s language, it could be said: 1. A doctor may investigate the conduct of his patient in order to determine symptoms. 2. He may investigate to obtain evidence to determine the cause of the disease from which his patient suffers. Therefore, it follows that the doctor has the statutory power to operate on any part of the patient’s body, including amputation, without liability in the event the wrong part of the body is cut, or the wrong limb is detached.
Granting the district attorney the powers he seeks in this case would be to give to a district attorney, any district attorney, a scalpel and saw with which he could sever away the most fundamental right of American citizenship, the right to be let alone to pursue one’s way in accordance with law and justice. This Court could not possibly grant the district attorney this startling demand.
The District Attorney of Philadelphia, formerly a county officer, is now a city officer under the Philadelphia Charter, and as such city officer, he has no subpoena powers.
He submitted a third question, namely, “Is the District Attorney by exercising his subpoena power attempting to supervise a judicial officer?” He answered this in the negative.