author: Mr. Justice Ag-new

text:
    Commonwealth ex rel. Hite v. Swank.
    1. By the Act of April 13th 1869, the District Court of Cambria was created, with jurisdiction in parts of Cambria county; the prothonotary of the Common Pleas of that county, as clerk of the District Court, to perform the duties and receive the fees of prothonotary, &c. Swank was elected, by voters within the jurisdiction, clerk of that court; in a quo warranto against him, the relator suggested that he had been elected and commissioned prothonotary of the Common Pleas, &e., of Cambria county, without more. Held, that the suggestion was insufficient in not averring that, as prothonotary, &c., the relator had the right to perform the duties and receive the fees of clerk of the District Court; but having set out the foundation of his title, that averment might be supplied by amendment; the amendment was allowed by the Supreme Court.
    2. Primá facie the relator had an apparent title to perform the duties and receive the fees of the office of clerk, and it was not necessary that the writ should issue at the suggestion of the attorney-general.
    3. The Supreme Court has jurisdiction in all cases of quo warranto, the Common Pleas having concurrent jurisdiction in the cases enumerated in the Act of June 14th 1836; in those cases the Supreme Court may, in their discretion, decline to exercise jurisdiction.
    4. The Act of 1869 does not create the office of clerk of the District Court as an independent office.
    5. If it were an independent office, the act makes no provision for filling it by election. The defect is not supplied by the 3d section of the 6th article of the constitution, directing that the clerks of the courts, &c., shall be elected by the voters over which the jurisdiction of the court extends.
    6. Swank was not lawfully elected to any office created by law ; he unlawfully exercised the functions of clerk of the District Court.
    7. The Act of 1869 declared that the powers, &c., of the District Court should be exercised by a president learned in the law, and two associates ; and that the president and associate judges of Cambria county should be those judges. Held, that there is no authority for those judges to hold the court, the organization of the court being unconstitutional.
    May 29th 1872.
    Before Thompson, O. J., Read, Agnew, Sharswood and Williams, JJ.
    Quo warranto from the Supreme Court issued March 28th 1872, by the Commonwealth, upon the suggestion of Josiah K. Hite, against George T. Swank, to answer by what warrant he claimed to have, use and enjoy the rights, franchises and privileges of Clerk of the District Court of Cambria county.
    The suggestion set out that the relator was elected prothonotary of the Court of Common' Pleas and clerk of the Court of Quarter Sessions of Cambria county, and on the 1st of December 1871 was commissioned by the governor to exercise said'offices for three years from that day, but that the respondent had usurped and continued to usurp the said franchises, &c.
    The answer in siib,stance was that the respondent was elected clerk of the District Court of Cambria county at the general election in October 1871 by voters within the district over which that court had jurisdiction, and in pursuance of that election was duly commissioned by the governor clerk of that court, for three years from December 1st 1871.

      By the Act of April 13th 1869, Paraph. L. 894, an additional court of record was established in Cambria county; its jurisdiction extended over the borough of Johnstown and several other boroughs and townships. The act gave the court the powers of the Court of Quarter Sessions of Cambria county, and also civil jurisdiction' as specified in it. By the 7th section of the act, there was to be a president judge, learned in the law, and two associates; and a proviso to this section declared that the president of the Twenty-fourth judicial district, of which Cambria county was a part, and the associate judges of that county should be the judges- of the District Court. By the 12th section of the act, the prothonotary of the Court of Common Pleas of Cambria county was empowered to perform all the duties of prothonotary and clerk of the Quarter Sessions of the District Court, and in case of his refusal the court should appoint a clerk. There was no provision in the act for electing a clerk within the limits of jurisdiction of the District Court.
    The court was organized with the judges mentioned in the act, and the duties of clerk were assumed under the Act of Assembly by Josiah K. Hite, prothonotary of the Court of Common Pleas of Cambria county. A quo warranto was issued against him, and under the principles announced in Commonwealth v. Conyngham, 15 P. F. Smith 76, he was ousted.
    At the general election in October 1871, Hite was elected prothonotary of the Court of Common Pleas of Cambria county; at the same time the voters within the territorial jurisdiction of the District Court of Cambria county elected the respondent clerk of that court. Both were duly commissioned for the respective offices for which they had been elected.
    The respondent moved to quash the writ for the following reasons:—
    1. The suggestion does not set forth with legal precision the facts upon which is founded the charge of the alleged usurpation, nor does the writ itself conform to the Act of Assembly.
    2. The office of clerk or prothonotary of a court of record is a public one, provided for in the constitution, and his duties are ministerial and judicial; hence the writ can issue only at the suggestion of the attorney-general.
    3. If the relator is merely a county officer, the writ should issue from the Court of Common Pleas.
    4. The relator was ousted, previously to the last general election, from exercising the duties of the office of clerk of the District Court of Cambria county, therefore he has no status before the court, for he could not succeed to the office in case of judgment of ouster against the respondent.
    5. The respondent was duly elected to the office of clerk of the District Court, and has not usurped any franchise, right, or privilege, to which the relator was entitled.
    6. The legislature has power to modify the duties of a constitutional office, and take some of them away, as it may change and reorganize the courts, or establish new ones; hence the relator, as an individual, cannot complain, if, in the establishing of the District Court of Cambria county, it has affected the emoluments of his office as prothonotary of the Court of Common Pleas and clerk of the Quarter Sessions.
    7. The relator seeks to raise the question of the constitutionality of the Act of Assembly establishing the District Court, which can be done only at the instance of the attorney-general.

      W. I). Moore *and li. L. Johnson, for Commonwealth.
    The points made by them on the principal question were: 1. That the Act of April 18th 1869 affords no warrant for the respondent holding the office of clerk of the District Court of Cambria county. 2. The act itself is unconstitutional.

      I). McLaughlin, for respondent.
   Mr. Justice Ag-new

delivered the opinion of the court, July 3d 1872.

According to the practice recognised by this court, in Murphy v. Farmers’ Bank, 8 Harris 415, the respondent has moved to quash this writ. Subject to this motion, he also filed his answer to the writ; and the parties have been heard on the motion to quash, and also upon the questions involved in the answer. We shall, therefore, dispose of both matters in one opinion.

In view of the power of amendment, the objection that the suggestion does not set forth the facts with sufficient legal precision is not tenable. The suggestion is defective in the want of an averment of the title of the relator to exercise the duties and receive the fees of the clerk of the District Court of Cambria county. But the relator has set forth the source of his title, by stating his election and commission as prothonotary of the Court of Common Pleas of Cambria county and clerk of the Court of Quarter Sessions. He ought then to have averred that the Act of 13th April 1869, creating the District Court of Cambria county, conferred upon him as such prothonotary and clerk the right to perform the duties and receive the fees appertaining to the clerk of the District Court. But having set forth the foundation of his title, the averment may be supplied by amendment, which we now permit to be made. The case of The Commonwealth v. Commercial Bank, 4 Casey 373, is a direct authority on this point.

The objection that the writ can issue only at the suggestion of the attorney-general, and not of a private relator, is not sustained. This would be true according to The Commonwealth v. Cluley, 6 P. F. Smith 270, and the cases cited on p. 272, had the relator here shown no private interest in himself. But primá facie, he has an interest to oust the defendant in the apparent title conferred upon him by the act, to perform the duties and receive the fees of the office. Whether he or any one else has a truly valid title to the office of clerk of the District Court, is not a question upon this motion to quash, there being a primá facie title in the relator.

The objection that this writ should have been issued out of the Court of Common Pleas, is not tenable. Whether the relator is a county officer or not, is immaterial, this couyt having jurisdiction in all cases, and the Common Pleas having only concurrent jurisdiction in the cases enumerated in the Act of 14th June 1836. We may in our discretion, and sometimes do decline to entertain original jurisdiction, and leave it to be exercised by the Common Pleas in the cases over which their jurisdiction extends. We do not think it would be proper to decline it in this ease.

The ouster of the relator from the office of clerk of the District Court of Cambria county by a former proceeding, is answered by his subsequent election as prothonotary and clerk of the courts of Cambria county. It may eventually appear that neither he nor the respondent has a valid title to that office; but on the motion to quash, his primá facie title is sufficient to maintain the suggestion.

The motion to quash is refused, and this brings us to consider the merits of the answer.

That the respondent has no title to the office of clerk of the District Court of Cambria county, and is exercising the functions of such alleged office unlawfully, are entirely clear to our minds. In point of fact, the Act of 1869 does not create the office of clerk of the District Court as an independent office or post. It merely directs that the duties appertaining to the clerkship of the District Court shall be performed by the prothonotary of the Court of Common Pleas and clerk of the Quarter Sessions of Cambria county. This is its whole effect. But were the office an independent and existing one, under the terms of the law, no provision has been made for filling it by election. It is contended that this defect in the law is supplied by the third section of the sixth article of the constitution, directing that prothonotaries and clerks of the several courts, recorders of deeds ■ and registers of wills, shall, at the times and places of election of representatives, be elected by the qualified electors in each county, or the districts over which the jurisdiction of the courts extend, and shall be commissioned by the governor. They shall hold their offices three years, if they shall so long behave themselves well, and until their successors be duly qualified. These provisions are fundamental and undoubtedly govern all prothonotaries and clerks of courts, whose offices are established by the legislature under the last clause of the first section of the fifth article. But they do not supply the place of the legislation necessary to provide for the election of a person to fill the particular office thus established. They do not ascertain the year in which he shall be elected, the notice to the electors to elect the persons to hold the elections, and make the return, and the time, place and manner of declaring the result and certifying it to the governor. In short, the act is totally-wanting in any provision for the election of the officer, and the time when his term shall begin. For aught to be found in the law, the sheriff might have deferred his proclamation until 1872, or the electors, or a majority, might have waited till a later period. It is clear, therefore, that the respondent has not been lawfully elected to any office created by law, and that he is unlawfully exercising the functions of clerk of the District Court, and must be ousted therefrom.

In order to prevent the disastrous consequences resulting from the acts of an unauthorized tribunal, it is proper we should also add that we see no authority to hold this court by any judges having lawful commissions; and that without further legislation of the most careful and thorough kind, the Act of 1869 cannot be carried into effect. Some of its provisions, blending the action of the District Court and the Court of Common Pleas, are objectionable, but we do not refer to such. The fundamental error of the legislation is in the organization of the court itself, which is not only unconstitutional, as decided in the case of The Commonwealth v. Conyngham, 15 P. F. Smith 76, but is wanting in any provision to correct the error. Had the proviso, that the court should be composed of the judges of the Common Pleas, not been inserted in the 7th section to qualify the enactment, it might have been argued, that there was an inchoate organization of the court by vesting its powers and jurisdictions in a president and two associates, to be supplied in some other manner. There might then be some plausibility in the idea that the places could be filled by appointment, until an election to fill the vacancy. But even this thought is neutralized by the fact that no provision has been made for an election, under the constitutional amendment of 1850. The appointment would fall in December, or we should have the anomaly of the office of a judge of a court of record existing by appointment indefinitely and without any term in the incumbent known to the constitution. It is evident that when, by the proviso, the legislature directed that the court should be organized by the president and associate judges of the courts of Cambria county, it excluded all others from the office. The proviso, it is true, is not according to the constitution, and the judges of the courts of Cambria county cannot fill the office, but its effect was to qualify the enactment so that no others could fill it without further legislation ; no substitute having been provided. The court, not being one of those created by the constitution itself, has nothing to stand upon except the law which created it, and this being defective in its vital point, it is left without any legal organization. Nothing short of supplementary legislation can cure this defect. It is to be regretted that the legislature had not acted on the suggestion of the governor, and repealed the Act of 1869.

It is proper we should now say before closing, that in a case like this, requiring the immediate interposition of the court, where no independent office exists, and no provision for filling it by election has been made, and especially in view of the unorganized condition of the court itself, we will not go beyond the primfi facie right of the relator to make the suggestion, but will proceed to give judgment against the respondent at once, and stop here. We shall not give judgment for the relator except for costs.

And now, July 3d 1872, the court do find the respondent, George T. Swank, Esq., guilty of unlawfully holding the place and exercising the powers and functions of clerk of the District Court of Cambria county, and do, therefore, give judgment, that the said George T. Swank be ousted and altogether excluded therefrom, and from the exercise of said powers and performance of said functions; and that the said J. K. Hite, the relator, do recover his costs from the said George T. Swank.


source: Caselaw Access Project

author: Mr. Justice Williams

license: Public Domain

text:
    Carlisle School District versus Hepburn.
    1. A school tax was assessed on national bank stock in 1870, which was unpaid. On the 19th of January 1871, the brink paid the state tax of one per cent., being the tax of 1871, under Act of April 12th 1867, sect. 5. Held, that the holder of stock was not exempt from the school tax of 1870.
    2. The state assessor assessed the stock at $150, the par value being $100. the return was duly made and there was no appeal. Held, that a tax imposed by the school directors on that valuation was not void ; if the assessment was wrong the remedy was by appeal to the auditor-general under the Act of April 2d 1868.
    May 10th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercür, JJ.
    Error to the Court of Common Pleas of Cumberland county: Of May Term 1872, No. 84.
    This suit was an amicable action and case stated, in which the School District of Carlisle was plaintiff and Samuel Hepburn defendant. The action was entered and the case stated filed April 30th 1872. The facts agreed to in the case are as follows: — ‘
    Samuel Hepburn, the defendant, of the borough of Carlisle, was the owner of 460 shares of the capital stock of The First National Bank of Carlisle. The par value of the stock was $100 per share. The stock of the bank was assessed under the Acts of April 12th 1867, Pamph. L. 74, April 2d 1868, Pamph. L. 65, 1 Br. Purd. 142, pi. 86 et seq., at the value of $150 per share. The assessment was returned to the commissioners of Cumberland county on the 3d of March 1870. The real estate of the bank being a house and lot in Carlisle, and forming part of the capital stock of the bank, was returned by the assessor for 1870 at a valuation of $3200. A tax of five mills on the dollar, amounting to $16, was assessed for county purposes for 1870 on the said real estate, and paid by the bank September 12th 1870. A state tax of three mills on the dollar and a county tax of five mills on the dollar was assessed by the county commissioners for 1870 on each share of stock of the bank in the hands of the owner. The state tax, amounting to $225, was paid by the bank August 1st 1870. The county tax of $375 is unpaid. The School District of Carlisle, by resolutions of May 2d and June 6th 1870, assessed for that year on the real estate a school tax of nine and a half mills on the dollar, amounting to $34.30; also a school tax of nine and a half mills on the dollar on each share of stock in the hands of the owner, of which $655.50 was assessed on the 460 shares of stock owned by the defendant. The school tax on the real estate was paid by the bank August 1870; the school tax on the stock is unpaid. On May 6th 1870 the councils of Carlisle assessed a borough tax of five mills and a bounty tax of three mills on the dollar on the real estate owned by the.bank, and a borough tax of five mills and bounty tax of three mills on the dollar on stock of the bank in the hands of the owner. The jmrough and bounty tax on the real estate was paid by the bank on the 28th of June 1870. On the 19th of January 1871 the bank accepted the provisions of the Act of March 31st 1870, Pamph. L. 42, 1 Br. Purd. 143, pi. 96, et seq., relating to taxation on shares in national banks, and on the 19th and 20th of January 1871 paid to the state treasurer $500,- being one per cent, on the par value of the capital stock. For the year 1871, county, school, borough and bounty taxes have been assessed on the real estate of the bank, but no municipal taxes have been assessed for that year -on the stock of the bank.
    “ 1. If the court shall be of opinion that the shares of said bank, belonging to the defendant, were liable to taxation at the rates assessed thereon by the plaintiff at the time the same were assessed for the year 1870, then judgment to be entered for the plaintiff for $655.50.
    “2. If the court shall be of opinion that the payment of one per centum of the par value of the capital stock of said bank to the state treasurer on the 19th day of January 1871, in compliance with the Act of March 31st 1870, exempted the shares of said •bank in the hands of the holder thereof from all municipal taxation for the year 1870, then judgment to be entered for the defendant.
    “ 3. If the court shall be of opinion that the payment by the said bank of one per centum on the par value of said stock to the state treasurer, before the 20th of January 1871, exempts the real estate of said bank from all taxation for municipal purposes for 1871, then judgment for the defendant for $34.30.
    “ 4. If the court shall be of opinion that the school directors had authority to levy and collect taxes upon said bank shares, to a greater amount than has been paid to them under the facts stated, then judgment to be entered for the plaintiffs for such amount as the court may think still due; but if defendant has paid to plaintiffs all the taxes legally due to them upon said bank capital and stock, then judgment for defendant.
    “ 5. If the levy and assessment of said taxes be illegal and void for the reason that they are assessed at the rate of $150 per share, while the par value thereof is but $100 per share, then judgment for defendant.”
    The Act of April 12th 1867 provides, sect. 1, that stock in national banks shall be taxed in the hands of the holders at the same rate as state banks, viz., three mills on the dollar of the value of the stock. Sect. 2. The auditor-general and state treasurer are required to appoint assessors to visit all the national banks and assess on the stockholders the actual value of the stock held by each, make a list and return it to the county commissioners ; and the amount of the taxes thus found to be due to the Commonwealth shall be collected on other taxes. Sect. 5. If any bank shall pay to the Commonwealth one per cent, per annum on the par value of its stock, “ the shareholders of said bank shall be exempt from all other taxation on the value of said shares.” The Act of April 1868 provides, sect. 1, “ No share of the stock of any national bank shall he appraised higher than the current value of the stock in the market where the bank is located.” Any stockholder may appeal to the auditor-general, who shall have power to adjust the assessment and abate and increase the assessment as he may think proper. Sect. 2. The assessors, on completing their assessments, shall return them to the auditor-general and give public notice of the valuation, by putting up notice in the bank, &c., and any shareholder dissatisfied with the valuation, may enter his appeal with the auditor-general in thirty days from putting up the notices.
    By the Act of March 31st 1870, section 3, all national banks are to be taxed for state purposes at three mills on the assessed value, “ and for county, school and municipal and local purposes at the same rate as * * * upon other moneyed capital in the hands of individual citizens of this state.”
    Sect. 4. If any bank, &c., shall elect to collect annually from its shareholders a tax of one per cent, on the par value of the shares, and pay it into the state treasury on or before the 20th of January of each year, “the said shares, capital and profits, shall be exempt from all other taxation under the laws of- this commonwealth.”
    The court (Junkin, P. J.) decided that by the acceptance by the bank of the Act of March 31st 1870, and paying the state tax assessed by that act and the Act of April Í2th 1867, sect. 5th, it was relieved from the payment of the school taxes as well as the others for 1870. The court held also that the stock could not be assessed at a higher valuation than its par value.
    Judgment was therefore entered for the defendant. This was assigned for error, on the removal of the record to the Supreme Court by writ of error.

      H. New sham and O. P. Humrieh, for plaintiff in error.
    Stock in national banks is liable to state tax: Acts of Congress of June 3d 1864, February 10th 1868; Mintzer v. Montgomery County, 4 P. F. Smith 140. They referred to and discussed the Acts of April 12th 1867, April 2d 1868, Act of July 19th 1866, sect. 1, Pamph. L. 1363, which provide that the real estate of national banks shall not be exempt from local taxation. The assessment at $150 is binding, there having been no appeal. Act of April 15th 1850, Pamph. L. 601, provides that the commissioners of Cumberland county shall annually furnish the school directors with a copy of the last adjusted valuation of all subjects, &c., taxable by the laws of the Commonwealth; such subjects are thereby made taxable for school purposes; so by Act of May 8th 1854, sect. 29, Pamph. L. 623,1 Br. Purd. 245, pi. 63. The real estate being that of a private corporation was taxable without regard to the taxation of the stock: Carbon Iron Co. v. Carbon County, 3 Wright 255 ; Lackawanna Iron & C. Co. v. Luzerne County, 6 Id. 424. They cited also Everitt’s Appeal, 21 P. F. Smith 216.

      S. Hepburn, Jr., for defendant in error, cited Gorgas’s Appeal, antea, p. 149.
   Mr. Justice Williams

delivered the opinion of the court, January 1874.

It may be conceded that the defendant’s stock would have been exempt from the tax levied on its assessed value by the school directors, by resolution of the 2d May 1870, if the bank had paid a tax of one per centum on the par value of its capital stock for that year. But it did not, as the case stated shows, and, therefore, the stock was taxable for state, county, school and other purposes, under the 3d sect, of the Act of 31st May 1870 Pamph. L. 42. On the 1st of August 1870, the bank paid a state tax of three mills on the assessed value of its stock for that year; and on the 19th of January 1871 it paid into the state treasury a tax of one per centum on the par value of its capital stock, which, as the amount settled by the auditor-general shows, was the tax for that year. The payment of this tax was made under the provisions of the 4th sect, of the act; and it exempted the stock from all other taxation for the year 1871, but it did not discharge the taxes which had been levied and assessed under the 3d section of the act the previous year: Everitt’s Appeal, 21 P. F. Smith 216 ; Price v. Commissioners of Montgomery County, decided at Philadelphia, January Term 1873. The defendant’s stock was not taxed at a higher rate on its assessed value than other moneyed capital in the hands of individual citizens, and it does not follow that the tax imposed by the school directors was illegal and void, because the stock was assessed at $150 per share, while its par value was but $100. The school directors, in imposing the tax, did not open or fix the value of the defendant’s stock. They levied the tax on its assessed value as returned by the assessors; and this was clearly right, for they had no other taxes on which to levy it. The assessment was made under the Acts of 12th April 1867, Pamph. L. 74, and 2d April 1868, Pamph. L. 55, by assessors appointed by the auditor-general and state treasurer. It was their duty under these acts to assess the value of the stock, but not to appraise it higher than its current value in the market, where the bank is located. If they had no right under the Act of Congress to appraise the stock above its par value for purposes of taxation, the defendant should have appealed to the auditor-general under the provisions of the Act of 2d April 1868, for such an abatement of its assessed value as would reduce the assessment to its par value. Having failed to 'appeal, the defendant must be deemed to have waived all objections that he might have made to the assessment, and he cannot now object that the tax is illegal and void, because it was levied on an assessment which was erroneously made. The objection comes too late ; and, therefore, he cannot set up as a defence to this action that the taxation of his stock was illegal because the tax was levied on an assessment made on the basis of its current value in the market instead of its par value. His only remedy for the alleged illegal assessment was an appeal to the auditor-general, and having failed to appeal he is concluded by the assessment: Clinton School District’s Appeal, 6 P. F. Smith 315; Stewart v. Maple, 20 Id. 223 ; Everitt’s Appeal, 21 Id. 216. It follows that the plaintiffs, under the case stated, are entitled to judgment for the amount of the tax they levied and assessed on the defendant’s stock ; and that the court below erred in entering judgment for the defendant.

Judgment reversed, and judgment for the plaintiffs against the defendant on the case stated for $655.50.


author: Mr. Justice Agnew

text:
    Commonwealth ex rel. Attorney-General versus Potts.
    1. The provision in the 7th section of the Act of April 12th 1869 (creating the District Court of Cambria County), that the President Judge, &e., of the Twenty-fourth District should be judges of that court, qualified the section so that no other than the judges of Cambria county could fill the offices.
    2. The Act of 1869 was not to create a new court independent of the existing judicial organization, but to add another such organization for portions of the county, to occupy an auxiliary and subordinate position.
    3. Although the proviso was not effectual because of its unconstitutionality, it could not be stricken out in interpreting the section.
    October 7th 1873. At Pittsburg.
    Before Read, O. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Quo Warranto from the Supreme Court, issued May 12th 1873, by the Commonwealth, upon the suggestion of the Attorney-General, against James Potts, that the respondent unlawfully was exercising and claimed to exercise the office of President Judge of the District Court of Cambria; the writ called on him to show by what authority he claimed to exercise the office.
    The respondent answered, that he claimed to exercise the office by virtue of an election of the qualified electors of the district over which the said District Court had jurisdiction, and a commission from the governor to hold the office for ten years from the 1st day of December 1871; that he took the oath, &c., and entered upon the duties of the office of president judge aforesaid, and continued since to perform the duties of said office by virtue of the said election and commission. He further answered that the Act of April 13th 1869 established a court of record, to hold its sessions in the borough of Johnstown, to be called the District Court of Cambria, and conferred civil and criminal jurisdiction over the borough of Johns-town (and other boroughs and townships specified in the act), that the act established an independent judicial district in those portions of the county, with the necessary officei’s and powers, &c., for trial of causes as other courts.
    The answer then set out other powers conferred by the act upon the court. The respondent further answered that by the act the president judge of the 24th judicial district was made president judge of the District Court; that by a quo warranto issued out of the Supreme Court, Judge Taylor, who. was then president judge of that judicial district, was ousted from the office of president judge of the District Court. By Judge Taylor’s removal a vacancy was created, which was filled by the appointment of the respondent by the governor; the vacancy having occurred more than three months before the general election, the sheriff of Cambria county issued his proclamation to the qualified electors of the district over which the District Court had jurisdiction, to meet at their respective voting places to elect a president judge of that court; that the respondent was then elected president judge of said court, and duly commissioned to that office for ten years.
    The respondent then set out the Acts of Assembly under which judges were elected and vacancies filled, and averred that he had been elected and commissioned in accordance with the Constitution and the various Acts of Assembly relating to that subject.
    The Attorney-General demurred to the answer, and the respondent joined in demurrer.

      L. D. Gilbert, Deputy Attorney-Gen eral, and Dimmiek, Attorney-General, for Commonwealth, cited:
    The Commonwealth v. Swank, antea, p. 154. — When part of a statute is unconstitutional, that which is constitutional can have effect only when enough remains to be intelligibly acted upon : Clark v. Ellis, 2 Blackf. 8; Campbell v. Bank, 8 Howard (Miss.) 625 ; Robison v. Bidwell, 22 Cal. 379; McCready v. Sexton, 29 Iowa 356; Lathrop v. Mills, 19 Cal. 513; Sants v. State of Iowa, 2 Iowa 165; People v. Hill, 7 Cal. 97 ; State v. Commissioners, 5 Ohio 497 ; Commonwealth v. Clapp, 5 Gray 97; Slawson v. City of Racine, 13 Wis. 398. Where a law is plain and unambiguous, whether expressed in general or limited terms, there is no room for construction, and a resort to extrinsic facts is not permitted to ascertain its meaning: Bartlett v. Morris, 9 Porter (Ala.) 266; 3 Blatch. C. C. R. 325. Where several acts upon the same general subject are inconsistent or doubtful in meaning, they should be examined together, and the probable intent of the legislature, as ascertained from the acts in their connection and from the attending circumstances, should be carried into effect: Le Roy v. Chalotta, 2 Abb. (U. S.) 448; State v. Stewart, 47 Mo. 382. Where there is an apparent conflict but no direct inconsistency between statutes relating to the same subject, they should be regarded in pari materia and as one statute, so- as to give them such an exposition as will sustain what appears to have been the main intent of the law-makers: Board of Commissioners v. Cutler, 6 Ind. 354. Even the title and preamble of a statute will not be referred to as explanatory of it where there is no ambiguity as to its intent in the statute itself: Eastman v. McAlpine, 1 Kelly 157; Comparison of statutes can be made only when the statutes are in pari materia; Church v. Crocker, 3 Mass. 17, 21; Thayer v. Dudley, Id. 296; Holland v. Makepeace, 8 Id. 418; Holbrook v. Holbrook, 1 Pick. 248; Mendon v. Worcester, 10 Id. 235; State v. Baldwin, 2 Bailey 541. Where the parts of a statute are so materially connected and dependent as to warrant a belief that the legislature intended them as a whole, and that if all could not be carried into effect the legislature would not pass the residue independently, if some parts are unconstitutional and void, all the provisions which are thus dependent are void, &c.: Warren v. Charlestown, 2 Gray 84; Hitchings v. -, 5 Id. 482; State v. Commissioners, 5 Ohio 497; Reed v. Omnibus Railroad Co., 33 Cal. 212; Lathrop v. Mills, 19 Id. 513 ; Slawson v. Racine, 13 Wis. 398. A statute should be interpreted so as to act prospectively and not retrospectively, unless the language is so clear as to preclude all questions as to the intention of the legislature: Neff’s Appeal, 9 Harris 243; Steckel’s Appeal, 14 P. F. Smith 493; Becker’s Appeal, 3 Casey 52.

      J. Scott and 11. JD. Foster, for respondent.
    A statute may be unconstitutional as to one part and valid as to the residue: Clark v. Ellis, 2 Blackf. 8. A constitution is paramount to the power of a legislature, and every act of the legislature repugnant to it is absolutely void: Vanhorne v. Dorrance, 2 Dall. 308. If an act repealing a former act be decided by a court to be unconstitutional and void, the former act remains in full force and virtue : Commonwealth v. Mann, 5 W. & S. 403. Can the rights and powers of a judge de facto, with color of title, be questioned in any form, except by quo warranto at the suit of the Commonwealth ? Clark v. Commonwealth, 5 Casey 129. In answer to the writ the existence of the vacancy is explicitly averred and relied upon and is admitted by the demurrer. The Commonwealth is therefore estopped from denying the vacancy: Commonwealth v. Primrose, 2 W. & S. 407. If, then, there was a vacancy, the Act of the 27th of April 1852, Pamph. L. 465, 1 Br. Purd. 817, pi. 11, makes provision for filling it: Commonwealth v. Maxwell, 3 Casey 444.
   Mr. Justice Agnew

delivered the opinion of the court, October 20th 1873.

It is true this case is not ruled absolutely by that of The Commonwealth v. George T. Swank, decided in Harrisburg in 1872, antea, p. 154, the respondent now not then being a party, yet the ground on which his claim rests to the office of President Judge of the District Court of Cambria county was fully considered. The opinion then expressed was rendered necessary to prevent ruinous litigation and uncertainty in the administration of justice within the district, and cannot be treated as a mere obiter dictum, or a thing said by the wa'y.

It is unnecessary to repeat all we said of the unauthorized character of the court, as organized by the Act of April 13th 1869, P. L. 894. The pith of the opinion in this respect is contained in the following sentences : “ It is evident that when, by the proviso, the legislature directed the court should be organized by the President and Associate Judges of the courts of Cambria county, it excluded all others from the office. The proviso, it is true, is not according to the Constitution, and the judges of the courts of Cambria county cannot fill the offices, but its effect was to qualify the enactment, so that no others could fill it without further legislation ; no substitute having been provided, the court, not being one of those created by the Constitution itself, has nothing to stand upon except the law which created it, and this being defective in its vital part, it is left without any legal organization.”

It is now contended that the legislature, having created a court, and the proviso to the 7th section, making the judges of Cambria county its judges, being unconstitutional and void, the court remained in existence, and its president and associates must be chosen under the Constitution and laws of the Commonwealth. This, however, is simply a denial of what we have said, to wit, that the effect of the proviso was to qualify the section, so that no others than the judges of Cambria county could fill the offices. The question is one of interpretation merely, and we adhere to our former opinion, notwithstanding the able and earnest arguments of the counsel of Mr. Potts. The whole law evidences that it was not the intention of the legislature to create a new court, wholly independent of the judicial organization already existing in the county of Cambria. The purpose, though a very mistaken one, was to add to the existing judicial organization another for a portion of the county, composed of the same judges and officers, which should occupy an auxiliary and subordinate position.

The first six sections establish the court, define its powers, but no where fix the number of judges, declare their grades, or provide for an election at any time or place. The seventh is the first section to declare the organization of the court and determine who and how many judges there shall be, and it declares they shall be the president and associates of the courts of Cambria county. The fact that this declaration is put into the form of a proviso is not any less declaratory of the legislative intent. This intent is maintained in the subsequent parts of the act. The sixteenth section directs that the president shall receive, in addition to his present salary, five hundred dollars and mileage, and the associates shall receive in addition to their present salaries, two hundred dollars and mileage. The eighteenth section further makes it the duty of the same judges to lease a suitable building in Johnstown for a court room and offices. In connection with these we discover further evidence of the legislative idea and intent in the provisions making the prothonotary of the Common Pleas the clerk of the District Court, and requiring it to be attended by the district attorney and sheriff. Additional evidence of the parasitical type of the court is the provision that its judgments shall not be liens on real estate until transferred to the Common Pleas — that no real estate shall be sold under its executions, and that but one general lien and execution docket shall be kept, as already provided by law, to wit, that of the Common Pleas. All these provisions are heightened in their effect by the entire absence of any other provision for organization by election or otherwise. The respondent sets forth an election as judge of the District Court at the general election of the year 1871, as his title to the office. But it is very evident there was no authority for this, if our interpretation of the act be true — that the proviso so qualified the enactment, that none but the judges provided in it can hold the offices. Though the proviso may not be effectuated because of its unconstitutionality, it cannot be stricken out in giving the interpretation to the section. The section speaks as an entirety in its purpose, and not in parts, which may be severed without violence to the legislative purpose. Where, as here, the, parts are so dependent that one cannot take effect without the other, so as to carry out the legislative intent, we cannot legislate by way of substitution. The answer of the respondent is objectionable as being argumentative to a great degree. But the facts set forth in it are covered by the demurrer of the Commonwealth and can be readily separated from the argumentative portions. As these facts do not constitute a sufficient title to the office of President Judge of the District Court of Cambria county, we must give judgment on the demurrer against the respondent.

And now, October 20th 1873, this cause having been duly heard and considered by the court, it is ordered that judgment of ouster be rendered for the Commonwealth, and against the defendant, and it is hereby considered and adjudged that James Potts, the respondent, unlawfully holds and exercises the office of President Judge of the District Court of Cambria county, and he is hereby excluded and ousted therefrom, and it is further adjudged that the Commonwealth do recover her lawful costs from the said James Potts.