Commonwealth v. Green

• Decision Date: 02 July 1868
• Citation: 58 Pa. 226
• Parties: The Commonwealth <I>versus</I> Green.
• Court: Pennsylvania Supreme Court

Page 226

58 Pa. 226

The Commonwealth versus Green.

Supreme Court of Pennsylvania.

March 31, 1868.

July 2, 1868.

March 31st 1868.

Before THOMPSON, C. J., STRONG, READ, AGNEW and SHARSWOOD, JJ.

This was a quo warranto issued on the relation of Benjamin Harris Brewster, Attorney-General, against David B. Green.

COPYRIGHT MATERIAL OMITTED

R. C. McMurtrie and F. W. Hughes, for Commonwealth, cited Commonwealth v. Flanagan, 7 W. & S. 69; Commonwealth v. Zephon, 8 Id. 382; Commonwealth v. Martin, 2 Barr 244; Constitution of Penna., Art., 5, § 3, Purd. 10; Case of Pennsylvania Hall, 5 Barr 209; Kilpatrick v. Commonwealth, 7 Casey 214; Commonwealth v. Ickhoff, 9 Id. 80; Act of April 4th 1843, § 8; Pamph. L. 133, Purd. 765, pl. 14; Foust v. Commonwealth, 9 Casey 339; Parker v. Commonwealth, 6 Barr 507; Commonwealth v. Quarter Sessions, 8 Id. 391; Commonwealth v. Painter, 10 Id. 215; Acts of March 19th 1838, § 14 et seq.; Pamph. L. (1837-38) 122; February 25th 1840, Pamph. L. 61; February 3d 1843, Pamph. L. 8.

F. B. Gowen, for defendant, cited Kremer v. Commonwealth, 3 Binn. 577; Commonwealth v. Smith, 4 Id. 117; Dyott v. Commonwealth, 5 Whart. 67; Commonwealth v. Martin, 2 Barr 244; N. Liberty Hose Case, 1 Harris 193; Hackett v. Commonwealth, 3 Id. 95; Holmes v. Commonwealth, 1 Casey 221; Case of Pennsylvania Hall, Kilpatrick v. Commonwealth, Commonwealth v. Foust, supra.

Brewster, Attorney-General.—When this case was up on the mandamus, it was my duty to sustain the law. Now, this quo warranto is here because I did not think it my duty to interpose to prevent the testing the right of Judge Green to sit. I entertain the same opinion now as then.

The opinion of the Court was delivered, July 2d, 1868, by SHARSWOOD. J.

The question raised by the demurrer of the Commonwealth to the defendant's plea, is whether the Act of Assembly entitled "An Act to establish criminal courts for Dauphin, Lebanon and Schuylkill counties," approved April 18th 1867, Pamph. L. 91, is constitutional, so far at least as to authorize the governor to commission the defendant as president judge of the judicial district thereby erected under the name of "the first district of criminal jurisdiction." If the legislature had power to erect such a district, to provide for the election of the judge therein in the manner prescribed in the act, and to invest him with any of the powers and rights conferred upon him, we cannot sustain the demurrer, and give judgment of ouster against the defendant.

The main point of contention is whether the legislature can transfer any part of the criminal jurisdiction now vested in the courts named in the constitution, to any other court. It must be admitted that if the framers of the constitution intended to establish an unalterable judicial system, they have not expressed any such intention. The article which relates to the judiciary begins with a declaration that "The judicial powers of this Commonwealth shall be vested in a supreme court, in courts of oyer and terminer and general jail delivery, in a court of common pleas, orphans' court, registers' court, and a court of quarter sessions of the peace for each county, in justices of the peace, and in such other courts as the legislature may from time to time establish." It may be fully conceded that the legislature cannot abolish any of the courts mentioned in this article, nor divest them of their entire jurisdiction, which would practically effect the same result. The words "and in such other courts," points only to a partition of powers. If it had been "or in such other courts," it might be otherwise construed. It is a case in which "and" cannot be construed "or," as it often may in statutes and other instruments when necessary to carry out the intention. It may be assumed also that this is true of the court of common pleas, although it is declared that "until otherwise directed by law, the court of common pleas shall continue as at present established." It is a provision which seems to relate to their organization, for it is immediately added, "Not more than five counties shall at any time be included in one judicial district organized for said courts." Yet all this does not affect another proposition, that the legislature have express power to divest the courts named of some of their jurisdiction, and vest it in such other courts as they may from time to time establish, or they may vest a concurrent jurisdiction in such other courts.

We are not without direct authority upon this point in a decision made by this court more than fifty years ago, acquiesced in and followed ever since, and made the foundation for legislative and judicial acts, and proceedings without number, extending to the infliction of the highest penalty which society can impose under the sanction of its laws. The case referred to is The Commonwealth ex rel. O'Hara v. Smith, 4 Binn. 117. At the time of the adoption of the constitution of 1790, the Supreme Court exercised an original jurisdiction in the county of Philadelphia, where issues in fact were tried, both in banc and at nisi prius, and they issued writs of certiorari and habeas corpus throughout the state, by virtue of which actions were removed from the inferior courts and tried at nisi prius in the different counties. They also issued writs of mandamus and other high prerogative writs throughout the state. By an act entitled "An Act to alter the judiciary system of this Commonwealth," passed February 24th 1806, 4 Sm. L. 270, it was provided that no issues of fact in the Supreme Court should be tried in banc, and that the said court should have no original jurisdiction in civil cases. By the same act the western district was created, and the judges directed to hold a supreme court at Pittsburg. A motion was made in the Supreme Court at Pittsburg for a rule to show cause why an information in the nature of a quo warranto should not be filed. It was objected that as the court was without authority to try the issue of fact which might arise, it would be idle to institute a proceeding without the power to prosecute and complete it. It was answered that the act was unconstitutional. The question was argued on behalf of the motion by Henry Baldwin and James Ross, and against it by William Wilkins. It cannot be doubted that it was ably discussed. The court, then composed of C. J. Tilghman and Judges Yeates and Brackenridge, unanimously refused the rule. It will be observed that the power was taken from the Supreme Court without vesting it in any other court, and it is distinctly admitted that in consequence there was no mode of removing persons from corporate offices illegally usurped. "It is contended," said C. J. Tilghman, "that the constitution secures to this court every power which they had been accustomed to exercise. If so, it also secures to the Courts of Common Pleas all the powers which they had exercised. I think the argument will prove too much. It cannot reasonably be supposed that the powers exercised by all these courts were of so perfect a nature as to make it worth while to guard them by a fundamental article. On the contrary, to every man of reflection, it must have been evident, that in the course of time some alterations in these powers would be necessary; and that an attempt to render them unchangeable must end in the destruction of the constitution itself." But he adds, "There are certain powers secured to this court by plain, positive, affirmative expressions. Such are those mentioned in the third section of the fifth article. Their jurisdiction shall extend over the state, and the judges shall, by virtue of their offices, be judges of oyer and terminer and general gaol delivery in the several counties. These powers no Act of Assembly can take away." This is a much stronger case than that now before us. The jurisdiction of the Supreme Court is hedged round by some guarantees which do not apply to the subordinate tribunals, either civil or criminal. It might well be urged that the provision that the jurisdiction should extend over the state, meant the jurisdiction they possessed by law at the adoption of the constitution. But a fortiori has the legislature power over the inferior courts. How else can they vest any part of the existing judicial powers, civil or criminal, "in such other courts" as they may from time to time establish? The constitutional provisions as to the quorum of the old courts have no application to new courts. The legislature could vest any portion of the jurisdiction of the Orphans' Court in a single judge of another court; for example, the auditing of all accounts of guardians, executors and administrators. So in like manner, road, settlement and desertion cases might be taken from the Quarter Sessions and vested in a new court with a single judge. The statute book abounds with instances in which this power has been exercised without question. At the very period of the adoption of the constitution of 1790 there existed under the authority of the charter of the city of Philadelphia, of March 11th 1789, 2 Smith L. 451, "a Mayor's Court," composed of the mayor or recorder of the city and one or more of the aldermen, invested with all the powers of a court of quarter sessions for any county within this commonwealth. It is not mentioned in the constitution. The first section of the schedule declares that all laws in force not inconsistent therewith should continue. No one ever breathed a doubt of its consistency with the constitution. It remained in the exercise of a healthful, efficient and unquestioned jurisdiction until by the Act of March 19th 1838, Pamph. L. 122, it was abolished, and a court of Criminal Sessions established, and by that act all powers and jurisdiction, as well of the said Mayor's Court as of the Court of Quarter Sessions for the city and county of Philadelphia, were vested in the court thereby established, and all pending bills and indictments in either courts were...