Where a county having a separate Orphans' Court is divided under the Act of 17th April, 1878, the jurisdiction of said Orphans' Court is thereafter limited to the remainder of the old county. The Judges of the Coming with the constitutional provisions as to territory, popumon Pleas become Judges of the Orphans' Court in the new county, and the Register of Wills becomes entitled to all the ordinary powers of the office at law, and does not become Clerk of the Orphans' Court.

the Secretary of Internal Affairs by citizens of plain mandate of the statute was based not upon Luzerne County for a division of said county,. any desire or thought to avoid the discharge of and the erection of a new county to be called Lackawanna, and commisioners were appointed who performed their duties under said Act; an election was ordered by the Governor and duly had, at which a majority of the votes cast was in favor of the proposed new county, whereupon the Governor issued his proclamation declaring the same on the 21st day of August, 1878, and appointed officers for the said county.

Whereupon by the requirements of said Act it became the duty of respondents, they being the Judges of the several courts of Luzerne County, to meet on the second Monday thereafter, to wit, on September 2, 1878, and organize the courts of said new county of Lackawanna; said new county belonging by the terms of the said Act to the Eleventh Judicial District, of which the respondents are Judges. Yet the respondents have refused and do refuse to meet and perform the duties aforesaid, or any of them, whereby the petitioner is liable to suffer great loss and damage by reason of his inability to know certainly in what court or county, or in what manner to pursue his remedies against his debtors.

The petitioner, therefore, prayed that a mandamus be issued to the said G. M. Harding, John Handley, William H. Stanton, and D. L. Rhone, Judges of the Courts of Common Pleas, Oyer and Terminer, and General Jail Delivery, and Quarter Sessions of the Peace for the county of Luzerne, commanding them to meet and organize the courts of the said new county of Lackawanna, fix the number of terms and return days, and do all things necessary in the premises, and to preside over and hold the said courts.

A rule having been granted to show cause why a writ of mandamus should not issue as prayed for, G. M. Harding, John Handley, and William H. Stanton, Judges aforesaid, filed their answer, admitting the facts set forth in the petition, but avering that their refusal to comply with the apparently

official duty, but sclely upon the fact that immediately after the county of Lackawanna was created agreeably to the statute, his Excellency, John F. Hartranft, Governor of Pennsylvania, acting doubtless in pursuance of some proper warrant or authority, or supposed proper warrant or authority, appointed and commissioned the Hon. Benj. S. Bentley to be President Judge of said county. The answer further averred as follows:-.

"When the time arrived for the discharge of the duties enjoined upon us by the statute, the said Benj. S. Bentley, having taken the oath of office, was present in said county and, we are informed and believe, assumed, and does continue to assume, all the judicial duties appertaining thereto, notwithstanding the fact that the statute creating the said county in plain terms, as it would seem, imposes the discharge of said duties upon us."

Appended to and made part of this answer was a copy of the appointment and commission of Benj. S. Bentley, dated Aug. 22, 1878.

D. L. Rhone, Judge of the Orphans' Court of Luzerne County, filed a separate answer, which also admitted the facts set forth in the petition of relator, and averred (1) That John F. Hartranft, Governor of Pennsylvania, had appointed and commissioned Hon. Benj. S. Bentley Judge of the several Courts of Lackawanna County, including the Orphans' Court, and that respondent was informed and believed that said Benj. S. Bentley had organized and was holding the said Orphans' Court of Lackawanna County. (2) That the Act of Assembly cited by the relator does not establish a separate Orphans' Court in said county of Lackawanna, and that respondent is not appointed, commissioned, or otherwise authorized by law, to organize or hold any other court than that of a separate Orphans' Court for the county of Luzerne.

H. W. Palmer and Stanley Woodward, for the plaintiff.

For these reasons, and none other, respondent declined to go to the county of Lackawanna and districts shall, for the time being, remain unchanged; and on the second Monday after the proclamation of the Gov-organize an Orphans' Court, or assist in organizernor establishing said new county, the Judges of the ing the other Courts thereof. several courts of said county, or a majority of them, shall meet and organize the several courts thereof; they shall determine and fix the number of terms, return days, and do all things necessary in the premises, up to which time the power, authority, and jurisdiction of the officers of the old county over said new county district shall remain unabridged, but from thenceforth shall cease and determine, except as to Judges of the courts.

"SEC. 14. The lien of all mortgages, judgments, mechanics' liens, verdicts, and all records which shall have been made and entered in the original county, up to and including the day of the organization of said courts, shall not be affected by the establishment of said new county, but to proceed thereon certified copies thereof shall be made by the prothonotary or other proper officer, which shall be entered by the like officer of the new county, and like proceedings had as in the original."

The action of the Governor in this case was based on the assumption that the erection of a new county, with a population exceeding forty thousand, created a new judicial district, being, as we regard it, a misconstruction of Art. V., Sec. 5, of the Constitution, which says: "Whenever a county shall contain forty thousand inhabitants it shall constitute a separate judicial district, and shall elect one Judge learned in the law," etc. Under the ordinary rules of construction applied to the Constitution, this is merely directory. It assumes a certain basis upon which

at the proper time, and in the proper manner, | commission from the Governor, did organize judicial districts are to be created by the Legislature; but it does not create the districts.

said Courts at the appointed time. The Judges of Luzerne County were not present, and did not offer to organize the Court. The time has passed for them to do it. The de facto, and, as we claim, the de jure officer of said Courts has done what the law required him to do, and this Court will not interfere to enforce an act already done.

As a legal proposition we have no hesitation in saying that the first part of Sec. 5, Art. V. of the Constitution, does execute itself. The moment Lackawanna County was established, and it was legally and officially ascertained that it contained a population of more than forty thousand, the two facts necessary to set the Constitution in motion and operation were established. result of such operation was a separate judicial district, and the election of a Judge learned in the law as a constitutional right.

The Courts of Lackawanna County were by law compelled to be organized on the second Monday after the proclamation of the Governor November 21, 1878. THE COURT. The establishing said county; in this case on the 2d principal question and turning point of this case of September, 1878. Judge Bentley, holding a is, whether the new county of Lackawanna be

came a separate and judicial district under the | and without preparatory legislation. Its organi5th Section of the fifth Article of the new Con-zation would change instanter; the associates stitution immediately upon its execution, and by not learned in the law, elected and commissioned that fact; or whether it remains within the long after the adoption of the Constitution, dropeleventh judicial district according to the provi- ping out; and the president of the whole district vision of the 13th section of the Act of 17th becoming the sole Judge in the new district. April, 1878 (P. L. 17), and must be organized under it.

The fifth section of the 5th article reads thus: "Whenever a county shall contain forty thousand inhabitants, it shall constitute a separate judicial district, and shall elect one Judge learned in the law; and the General Assembly shall provide for additional judges as the business of the said district may require. Counties containing a population less than is sufficient to constitute separate districts, shall be formed into convenient single districts, or, if necessary, may be attached to contiguous districts as the General Assembly may provide. The office of Associate Judge, not learned in the law, is abolished in counties forming separate districts; but the several Associate Judges in office when this Constitution shall be adopted shall serve for their unexpired terms."

This section, it will be seen, has no relation to new counties, but operates on all counties, old and new, according to the number of inhabitants in them; and affects existing districts as already arranged by law. The new Constitution found the State already districted, and therefore to be redistricted before it could take effect. Under this section the organization of separate districts consisting of a single county, and that of single districts composed of several counties, are different, the former having but one Judge, who holds all the Courts alone, and additional Law Judges when necessary for the dispatch of business; the latter having these Judges, one of whom, the president, is learned and the other two not learned in the law, the president being a Judge of every county in his district, and the Associate Judges only of one county.

There would arise perplexing questions of jurisdiction likewise; if the fact of the required population determines the operation of the Constitution, and not its legal ascertainment by an act of legislative power.

If the fact determines, then the time of the fact also governs; and who shall (outside of the legal, mode) determine when this took place? And if it had taken place long before the change in organization took place, what effect will the acts of associates have, acting after their offices expired by virtue of the very terms of the same section? It is evident that if the Constitution executes itself, without legislative aid to determine the number of inhabitants, and prepare the way for the passage of the county having the required population from the old into the new relation, the confusion would be inextricable, and the consequences ruinous. It is also obvious, as the Constitution is not confined to new counties, but applies to old and new, that the latter must follow the same rule.

Now we are prepared to see the relevancy and effect of the 14th section of the schedule which seems to be out of place, but which has no ambiguity in its interpretation. It reads thus: "The General Assembly shall at the next succeeding session after each decennial census and not oftener designate the several judicial districts, as required by this Constitution." The italics I have made mark its operation. The duty recurs after each census, but not oftener. It is evident the Convention intended to confine the arrangement of districts to decennial periods when the census would authoritatively and with certainty declare the population of each county. Then, counties having reached the constitutional requirement, can be declared by law to have arrived at the period of separation from all others judicially, and the way prepared for passing into the new relation.

The number of inhabitants in a county is an unknown fact, except as it may become known through the decennial census taken by the United States. This connects the question with the 14th section of the schedule which will be noticed presently. Now it is obvious that as the 5th sec- Thus the provisions of the fifth section of the tion referred to operates upon an existing ar- fifth Article and the 14th section of the schedule rangement of districts throughout the State, and as harmonize with each other, and the separation counties having a population less than forty thou- of a county from all others to form a district by sand are necessarily comprehended with others itself, under a new and different organization of in districts having a President Judge, who pre- its courts, becomes a matter of certainty and sides in each and every county of the district, a innocuous adaptation to other relations and counmost uncertain and confusing state of judicial ties, and this shows also that the argument founded affairs, followed by ruinous consequences, would upon the estimate of the population by the comhappen, if, whenever a county reached the num- missioners appointed under the Act of 17th ber of forty thousand inhabitants, it became ipso April, 1878, is inapplicable. The purpose of facto a separate judicial district, by the simple that estimate is declared by the Act itself. The mandate of the 5th Section of the 5th Article, | report of this commission is expressly stated to

show whether the new county can be erected "without conflicting with the constitutional provisions as to territory, population, and the nearest distance of the boundary line to the county seat."

phans' Court, but has said nothing about the Judge of the Orphans' Court in the provision for organization. There can be no assumption, therefore, of the creation of a separate Orphans' Court in the new county.

The effect of the erection of the new county was to make the Judges of the Common Pleas the Judges of the Orphans' Court, to confer on the Register of Wills the usual powers, and to limit the jurisdiction of Judge Rhone to his own

The estimate is but a part of this report for this special purpose, and was not intended by the legislature for a different purpose, while no provision was made in the Act for the execution of a different purpose, the 13th section, on the contrary, retaining the new county within the elev-county. He cannot constitutionally be a Judge enth judicial district.

It is manifest that an estimate is not a census, and is to precede the erection of the county, and not affect its character as a judicial district after it has been erected.

Thus it is evident the estimate was no foundation for the exercise of any executive function, either by way of declaring the county a separate judicial district, or of appointing its officers.

The power of separation is legislative, to be exercised at the time when the constitution provides, and not executive.

It follows from these views, that when the new county came into existence as a part of the eleventh judicial district, having a president judge already in commission, there was no vacancy in that office to be filled, and nothing upon which the commission of the Governor could take effect. He might as well attempt to issue a commission to fill Judge Pearson's place in Dauphin County. Having no power to appoint, the commission to Judge Bentley was waste paper and void. He is not even a de facto judge, there being no office to be filled, no commission to be issued, and no authority in the Governor to act. Even a de facto officer must have some color to act. There was no separate district, and the character of the county in its judicial aspects had not been changed.

in two counties, one of which is not entitled to a separate Orphans' Court. The mandamus cannot go to him.

But while Lackawanna is not a separate judicial district, its organization presents more difficulty, owing to its peculiar relations. The Constitution has made no provision for the effect of the division of a separate judicial district, consisting of a single county. The organization of such a separate district is constitutionally different from that of a county connected with others. In the separate district one Judge learned in the law fills all the Courts without associates. Additional law Judges may be given for the dispatch of business, but not ordinary associates. But a county connected with others is entitled to three Judges, one the President of the Courts of all the counties in his district, and the other two associates, not learned in the law, in the single county and not in the others.

This raises the question how far the additional Judges of Luzerne County can be made temporarily Associate Judges of Lackawanna County, a seeming anomaly.

It is clear that the 13th section of the Act of 1878, retaining "for the time being" the new county in the eleventh judicial district, and directing the Judges of that district to organize the Courts of the new county does carry in the AddiThe Act of Assembly gives no color, but the tional as well as the President Judge. This comcontrary, and the commission has not the sanc- pels us to meet the difficulty already presented, tion of law. It is better, therefore, to grant the the want of any constitutional provision for the mandamus at once, than to suffer new complica-separation of a separate single county district tions to arise by delay.

into two parts, one of which is not entitled to But the mandamus cannot go to the Judge of a separate judicial district organization. It is the Orphans' Court, whose jurisdiction after sepa- evident, under the new Constitution, that there ration is necessarily confined to his own county, is no such thing as a separate single county judiLuzerne. The new county is not entitled to a cial district consisting of two counties entitled to separate Orphans' Court, but under the Constitu- different organization. The thing is not only an tion the Judges of the Common Pleas become anomaly, but contradictory. The power to divide the Judges of the Orphans' Court, and the Regis-Luzerne County, though a separate judicial dister of Wills will be entitled to all the ordinary trict, is undoubted; and, therefore, the repugpowers of the office at law, and he does not be- nancy existing in the Constitutional provisions come the Clerk of the Orphans' Court, as in a for erecting new counties, and creating separate county entitled to a separate Orphans' Court. judicial single county districts, must be resolved The 22d section of the 5th article makes the upon the general powers conferred upon the creation of a separate Orphans' Court a subject legislature. The power to create new courts to of express legislative power, while the Act of 17th supply the wants of the State is undoubted. (1st April, 1878, has not only provided no such Or-section, 5th article; Green's Case, 8 P. F. Smith,