Commonwealth v. Burrell

• Citation: 7 Pa. 34
• Parties: COMMONWEALTH v. BURRELL.
• Decision Date: 01 January 1846
• Court: United States State Supreme Court of Pennsylvania

Page 34

7 Pa. 34

COMMONWEALTH v. BURRELL.

Supreme Court of Pennsylvania.

McCandless now moved to quash the writ, on the ground that the defendant was not bound to answer the suggestion of an individual: Rex v. Carmarthen, 2 Burr. 869; 2 Lord Raym. 1409; Nevill and Payne's case, Cro. Eliz. 304; King v. Ogden, 10 Barn. & Cress. 230; 5 Mass. Rep. 230; 10 Mass. Rep. 290; 1 McCord, 52; 2 Halst. 102; 16 Serg. & Rawle, 140; 9 Ann. c. 20; Wallace v. Anderson, 5 Wheat. 291; Cole on Inform. and Quo War. 169, 56 Law Lib.; 5 Johns. Ch. Rep. 381.

Williams, contrà, cited 2 Rawle, 381; 2 Dall. 112; 3 Dall. 490; 3 Serg. & Rawle, 29, 52; 15 Serg. & Rawle, 131; 10 Mass. Rep. 291. He further prayed to be permitted to amend by inserting the name of the attorney-general.

GIBSON, C. J.

In Heydon's case, 3 Rep. 7, the judges resolved that the true way to arrive at a sound construction of a doubtful statute, is to consider the old law, the mischief, the remedy, and the true reason of the remedy; and it was said in Stowell v. Zouch, Plowd. 364, 365, as well as in Miles v. Williams, 1 P. Wms. 252, that the safest way is to interpret statutes as near as may be to the common law, and by the course it observed in cases of its own, before the act. Such being a cardinal rule of construction, by which the sages of the law have ever been guided, it is proper to premise that as we never had, strictly speaking, any previous statute on the subject of quo warranto, the remedy stood with us on the foot of the common law, modified, in a measure, by our own customs, partly founded in analogies drawn from the 9 Anne, c. 20, which, however, was not extended as a statute to Pennsylvania. What then was the old law?

The great English commentator tells us that the writ of quo warranto lies, at the common law, for the usurpation of a franchise in violation of the right of the king; and that it is in the nature of a writ of right for the king: consequently, that no one but the officer of the king can sue it out. That certainly was the law of the olden time. The judgment on it was conclusive of the right, even against the king; and that, together with the slow and unwieldy march of the remedy, made it give place in practice to the more simple and less decisive method of prosecution by information, in the nature of a quo warranto, filed by the attorney-general in the King's Bench. Thus stands the common-law proceeding in that court. In our own, the common-law writ of quo warranto was not attempted; but, in place of it, recourse was had to the information in the nature of a quo warranto, pretty much as it stands in England at this day, notwithstanding the tenth section of the ninth article of the constitution, which declares, that "no person shall, for any indictable offence, be proceeded against criminally by information, except in cases arising in the land or naval forces, or in the militia when in actual service, or in time of war or public danger." In The Commonwealth v. Browne, 1 Serg. & Rawle, 382, it was held that an information in the nature of a quo warranto, being not a criminal but a civil proceeding, to try a right, was not within the constitutional prohibition. Though this decision was unquestionably founded on a sound construction, it still appeared to be not entirely reconcilable to the letter of the constitution.

These informations in nature of quo warranto were found to be so convenient in England, that they were allowed by the 9 Anne to be filed by leave of the court at the suggestion of a corporator, for the determination of disputes growing out of corporate rights, in which the prerogative of the crown was not involved; not, however, in the name of the attorney-general, but in the name of the master of the crown office. That statute, as I have said, was not extended to Pennsylvania by adoption, and ratified by our act to name the laws in force at the Revolution; but the substance of it had been adopted as a part of our own common law.

Thus stood the law of Pennsylvania at the enactment of our statute; and what were the defects in it which were proposed to be remedied?

Though we are bound to take our positive law from the statute-book, we are at liberty, in doubtful cases, to go behind the curtain for the motives of the enactment; and haply we have not, in this instance, to deal with probabilities or conjectures. The defects pointed out by the commissioners were want of authority to give speedy remedy by writ, not only in cases at the common law, but in cases identical with, or similar to, those provided for by the statute of Anne; want of power in the Supreme Court to try issues of fact in the country; and the delay incidental to confining the remedy in all cases to a single tribunal. Did the legislature intend to do more than supply them?

The statute gives the Supreme Court power not only to proceed by writ, but to send issues to the county courts in cases of which it has exclusive jurisdiction; and for greater despatch, to give those courts concurrent jurisdiction in cases of usurpation, or forfeiture of county, township, or corporate franchises, offices, or liberties; but the commissioners proposed no allowance of the writ at the suggestion of a relator. That was added while the bill was under discussion, but limited, as we shall see, to county court cases. The bill was reported on the basis of the common law, by which the attorney-general is the organ of prosecution, and the exception was introduced by the legislature in juxtaposition with, and as part of, the provision for private rights with which that officer and the public have no concern.

The first section of the statute declares, that "writs of quo warranto may be issued by the Supreme Court in the form and manner hereinafter provided, in all cases in which the writ of quo warranto at common law may have been issued, and in which the said court may have heretofore possessed the power of granting informations in nature of such writ;" and consequently in a case like the present. What was meant by the words form and manner, I will presently attempt to make plain.

So much of the second section as gives rise to the question, is in these words: "Writs of quo warranto in the manner and form hereinafter provided, may also be issued by the several Courts of Common Pleas concurrently with the Supreme Court, in the following cases, to wit: 1. In case any person shall usurp, intrude into, or unlawfully hold or exercise, any county or township office within the respective county. 2. In case any person duly elected or appointed to any such office, shall have done, suffered, or omitted to do, any act, matter, or thing, whereby a forfeiture of his office shall by law be created. 3. In case any question shall arise concerning the exercise of any office in any corporation created by authority of law, and having the chief place of business within the respective county. And in any SUCH CASE, the writ aforesaid may be issued upon the suggestion of the attorney-general, or his deputy, in the respective county, (or of any person or persons desiring to prosecute the same.)"

Now what are we to understand by the words "any such case?" Upon every principle of grammatical relation and obvious meaning, we must intend that the legislature had in view the cases specified in the same section immediately preceding the final clause. It was of these it had been speaking, and it was of these it was continuing to speak. The words in brackets were judiciously added to provide, in imitation of the statute of Anne, for cases in which the public interest might not be involved, and in which the attorney-general might not be willing or bound to prosecute. For all cases within the exclusive jurisdiction of the Supreme Court, the omission of such a provision is proof of a design to leave the impetration of the writ to the regulation of the common law, and consequently to put the control of it...