Com. Ex Rel. Margiotti v. Sutton , 327 Pa. 337 ( 1937 )

The conclusion is inescapable that the Act of April 28, 1937, P. L. 460, creating a court of record to be known as the Family Court, is unconstitutional. I concur in the opinion of this Court invalidating the Act, not only because it is faulty and defective as drawn, but for the further reason that it disregards clearly expressed limitations upon legislative power contained in the Judiciary Article of the Constitution. I am convinced, after careful study of its provisions, that, if it were attempted to put the Act in force, such uncertainty and confusion would result as to become destructive of the orderly administration of justice.

When it created the Family Court, the legislature undoubtedly intended to establish a model juvenile court for Philadelphia County. This intention clearly appears from the title, and the statement of the "purposes and basic principles" as set forth in Section 1^* of the Act. These worthy purposes might have been realized in a constitutional manner had the act included only such provisions as would have been appropriate to the principles so expressed. Apparently the object in view was to create a court of family relations based upon the "standard juvenile court law," which is published by the Committee on Standard Juvenile Court laws of the National Probation Association. It would seem that provisions of that standard form were not acceptable to the draftsman of the present Act, and, rejecting these, he substituted others unrelated to juvenile delinquency. This departure was an unfortunate one, and has resulted in the attempt to create an anomalous court with powers foreign to those possessed by juvenile courts in other jurisdictions. A model juvenile court for Philadelphia is both desirable and necessary and, if it were possible, under the Severability Clause of the Act, to salvage from the legislation before us the valid provisions relating to such a Family Court, I feel sure this Court would strive to accomplish that result.

But the offending provisions of the Act are so integrated with the general statutory scheme, that they cannot be severed without destroying the unity of the legislative purpose. Hence the entire Act must fall, as the valid provisions are dependent to such an extent upon those which are unconstitutional that, notwithstanding the severability clause, this Court cannot presume that the legislature intended them to stand alone:Rothermel v. Meyerle, 136 Pa. 250; Booth Flinn v. Miller,237 Pa. 297; Bagley Co. v. Cameron, 282 Pa. 84; Com. ex rel. v.Humphrey, 228 Pa. 280; Mazurek v. Farmers' Mutual Fire Ins. Co.of Jamestown, 320 Pa. 33.

The basic error that was made, to which many others are related, lies in the fact that the legislature, by conferring powers upon the Family Court not generally possessed by courts of that character, has constituted a court of the same class or grade as the courts of common pleas. Accordingly, for reasons more fully discussed in the opinion of Mr. Justice LINN, speaking for this Court, it has failed to establish a court within the limitations imposed by Article V Section 26 of the Constitution because the organization, jurisdiction and powers so conferred upon the Family Court are not uniform with those possessed by Courts of Common Pleas.

It is not my purpose to consider constitutional provisions dealing with the creation of courts of the Commonwealth. I confine this expression of my views, which made imperative my concurrence in the decree invalidating this legislation, to directing attention to several sections of the Act which are in contravention of the Constitution. This is done with the earnest thought that if, at some future time, the General Assembly, in its discretion, shall see fit to exercise the unquestioned powers which it possesses to create "other courts" such, for example, as a family court, it may be helpful to point out at this time certain provisions which proved fatal to the present Act, or which might be deemed questionable in conferring jurisdiction and powers upon such new courts. I refer now to the following objections to the present Act:

The greatest departure, in my opinion, made by this statute from earlier acts of assembly creating courts not enumerated in the Constitution, arises from the attempt to confer an almost exclusive criminal jurisdiction upon the Family Court, in all cases where the accused is a minor. In Section 14(m) of the Act, it is provided that in the prosecution of a minor for "any criminal offense under the laws of this Commonwealth" exclusive jurisdiction shall be in the Family Court, but that if the offender is over sixteen but less than twenty-one years of age, the Family Court "may certify such case" to the Quarter Sessions or the Oyer and Terminer courts, as the case may require. The right to certify is discretionary with the Family Court, and it cannot be compelled to certify if it does not elect to do so. Nowhere in the Act is "criminal offense" defined, hence it necessarily includes murder and other high felonies committed by minors, triable only in the Court of Oyer and Terminer, or before one of the Justices of the Supreme Court sitting as a judge of the Court of Oyer and Terminer, in which tribunals this jurisdiction was exclusively vested by law at the time our Constitution was adopted. It cannot be doubted that adequate protection of the fundamental rights of the accused requires that he shall not be deprived of life, nor sentenced to imprisonment for a term of years, save by a court of the highest grade among courts of first instance. This attempt to transfer exclusive jurisdiction, over such felonies as may be committed by minors, from the Court of Oyer and Terminer to an inferior tribunal constitutes an invasion of rights protected by the Constitution. If this exclusive jurisdiction be denied the Family Court, as unquestionably it must be because it would be contrary to our organic law, the effect then is to subject minors to the subversive influences of the criminal courts, the very evil against which the juvenile court is intended to protect. Therefore, to cure this jurisdictional flaw, it would become necessary to rewrite this subsection, the power to do which rests alone with the legislature. It must be held to be in contravention of the Constitution.

The provisions of Section 14(b) of the act give rise to serious objections. Therein exclusive jurisdiction is given to the Family Court of "all actions and proceedings concerning, or trials of persons, including adults," contributing to the delinquency, neglect, or dependency of any child under 16 years of age, or charged with any offense with respect to such child. Whatever the meaning of the term "actions and proceedings" may be in that context it is evident from the language used that the jurisdiction over such subject matters now belongs in the Court of Quarter Sessions, which exercises it concurrently with the Municipal Court. The provisions in question go further than the powers granted to the County Court of Allegheny (Act of May 5, 1911, P. L. 198) or to the Municipal Court of Philadelphia. (Act of July 12, 1913, P. L. 711.) It entirely deprives the Quarter Sessions Court, as a court ordained by the Constitution, of part of its jurisdiction. In the past it was doubtful whether the legislature could deprive a constitutional court of any part of its jurisdiction, and confer it upon other courts established from time to time. We resolved that question in favor of the power of the legislature to create courts of a different class from those enumerated in the judiciary article, and to grant them a limited or concurrent jurisdiction with constitutional courts: Gerlach v. Moore,243 Pa. 603, 609. But such an infringement as now proposed under the provisions of this subsection cannot survive the test of constitutionality.

A serious ambiguity that might easily have been avoided is found in Section 14 (e). This subsection gives the Family Court exclusive jurisdiction in "all actions and proceedings brought against any husband or father, wherein it is charged that he has without reasonable cause separated himself from his wife or children. . . ." The section is primarily concerned with actions for support, but the language employed is so broad and inclusive as to confer upon the Family Court exclusive jurisdiction in all actions for separation, even though the action be one of divorce upon the ground of desertion. Divorce proceedings have long been embraced within the jurisdiction of the common pleas courts of this Commonwealth. Desertion is but one of the grounds upon which an action for divorce may be based. To separate this jurisdiction so that one cause of action for divorce shall be brought in the Family Court, and others in Common Pleas court, is a classification that cannot be sustained as constitutional. This Court is without power to supply the words required to indicate that this section has noapplication to actions for divorce because of desertion.

An objection that may be raised against the validity of Section 14 (j) is whether the exclusive powers there conferred upon the Family Court conflict with the jurisdiction of the Orphans' Court, concerning the inheritance rights of children born out of wedlock. At least the language used in this subsection causes doubt whether the Family Court can acquire exclusive jurisdiction of this subject, for the same reasons as stated with respect to the Court of Oyer and Terminer.

It is attempted by Section 19 of the Act to confer jurisdiction on the court if service of orders or process is effected by registered mail. It says: ". . . service by registered mail with a return receipt requested, addressed to the last known address, or by publication thereof, or by both . . ." may be made in any action and proceeding in the court if the judge is satisfied that personal service cannot be made. No distinction is drawn between service of such nature upon resident or nonresident parties. The section further continues: "If any person so served with an order or process shall fail to appear he may be proceeded against for contempt of court." That this provision is without precedent in the law, and, if sustained, would lead to the denial of rights guaranteed by the Constitution, needs no discussion.

It is provided in Section 20 as follows: "In addition to the methods and procedures provided by existing law, proceedings in said court may be initiated before any judge of said courtupon information, verified under oath by any person, or upon the court's own motion." The express prohibition of Article I, Section 10, of the Constitution against proceedings in criminal cases by information reads as follows: "No person shall, for any indictable offense, be proceeded against criminally byinformation, except in cases in the land or naval forces, or in the militia, when in actual service, in time of war or public danger. . . ." This results in the impairment by the present Act of a fundamental right of the citizen.

Section 7 reads in part: "In the hearing of any case the general public may be excluded." While a trial judge unquestionably has the power in proper cases, where public morals so require, and the rights of the accused are not harmed, to exclude the general public from the trial room, the blanket authority sought to be conferred upon the Family Court by this Section violates the guarantee of "a speedy public trial," contained in Section 9 of the Bill of Rights of the Constitution.

Under Section 11 there is a provision for the appointment of "referees" to whom the "hearing of any case may be referred." While judicial functions may not be delegated, the legislature may undoubtedly empower courts of record to refer certain of its proceedings to masters, referees or auditors, if provision is made so that fundamental rights of the accused or of the parties are not infringed. The Act here in question has not provided the required protection. The circumstances under which the reference shall be made, the extent of the judicial review thereof, the class of offenses that may be referred, are undefined. Nor is it necessary that the referee be learned in the law. As the offenses so referred may include felonies and other crimes properly triable before a jury, the unconstitutionality of the "reference" authorized by this section is manifest. A desire to create a model family court, no matter how laudable, cannot justify the denial to the accused of a trial by jury. The objectionable features of this Section are not entirely cured by the "jury trial" provided for by Section 24, and the right to appeal to the court en banc granted by Section 26 of the present Act.

Additional questions might be raised with respect to the provisions of the Act, if the limits of this discussion would permit. It is inevitable that, with an Act so faultily drawn as the present one, confusion would follow while doubtful provisions are before the courts for construction. Of one thing, however, we may be certain, — that while all such litigation is pending, and while controversial questions in connection with the Act are being settled, the guarantees of Article I, Section 11, of the Constitution would become imperiled by the denial and delay of justice that must necessarily follow.

For the reasons stated, I concur in the opinion of the Court.

^* "Purposes and Basic Principles: The basic purpose and principle of this Act is to secure uniform administration in one court of matters pertaining to family relations, and to secure for each child under its jurisdiction such guidance, care, custody, and control, preferably in his own home, or by placement as will serve the home or the child's welfare and the best interests of the Commonwealth."