Campbell v. Commonwealth

• Decision Date: 03 January 1881
• Citation: 96 Pa. 344
• Parties: Campbell et al. <I>versus</I> The Commonwealth.
• Court: Pennsylvania Supreme Court

Page 344

96 Pa. 344

Campbell et al. versus The Commonwealth.

Supreme Court of Pennsylvania.

November 18, 1880.

January 3, 1881.

November 18th 1880.

Before MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ. SHARSWOOD, C. J., absent

Error to the Oyer and Terminer of Fayette county: Of October and November Term 1880, No. 209.

Edward Campbell, for plaintiffs in error.—The sentence in the case at bar cannot be allowed to stand. It is not the sentence of any court, but the sentence of three men who have no legal authority whatever to sentence anybody. And yet they have conducted a trial, pronounced judgments upon questions of law and fact, and have finally deprived the plaintiffs in error of their liberty for a period of a year and a half, and that period will extend much further unless this court interferes. We submit that no reason or legal decision prevents such interference: Foust v. The Commonwealth, 9 Casey 338; Kilpatrick v. Commonwealth, 7 Id. 198; Commonwealth v. Zephon, 8 W. & S. 382; Commonwealth v. Shaffner, 2 Pearson 450.

Section 5 of the fifth article of the Constitution of Pennsylvania, adopted in 1874, reads as follows: "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."

On the 14th of April 1834, the state was divided into judicial districts, of which the counties of Washington, Fayette and Greene were made the Fourteenth. On the 23d day of January 1866, Washington county was taken from the Fourteenth district and made a part of the Twenty-seventh, leaving the Fourteenth district to be composed of the counties of Fayette and Greene.

Matters stood in this way until April 9th 1874, when the legislature, by Act of Assembly, again divided the state into judicial districts. The fourteenth clause of the first section of that act, see Pamphlet Laws, page 54, Purd. Ann. Dig. 1835, is as follows: "The Fourteenth district, of the county of Fayette, to which the county of Greene is hereby attached."

This establishment of Fayette as a separate district, was of course done by the legislature because of the fact that the county contained over forty thousand inhabitants.

If this provision of the state Constitution and this Act of Assembly make Fayette county a separate judicial district, surely it must then follow that associate judges not learned in the law have no right to sit in the Court of Oyer and Terminer, and the sentence pronounced on the plaintiffs in error must be reversed.

S. L. Mestrezat, District Attorney, for the Commonwealth.—It no where appears on the record that Dumbauld and Roberts are not judges. They are Judges of the Common Pleas of Fayette county, and are, therefore, Judges of the Oyer and Terminer. These judges are regularly commissioned, and have been exercising their functions for the last five years.

This is not the proper way to test this matter. It is a collateral proceeding, and the justices having no hearing here, the proper way to determine the question would be by writ of quo warranto to Dumbauld and Roberts. Clark v....