Commonwealth v. Hipple

• Decision Date: 05 May 1870
• Citation: 69 Pa. 9
• Court: Pennsylvania Supreme Court
• Parties: The Commonwealth <I>ex rel.</I> Attorney-General <I>versus</I> Hipple.

Page 9

69 Pa. 9

The Commonwealth ex rel. Attorney-General versus Hipple.

Supreme Court of Pennsylvania.

March __, 1870.

May 5, 1870.

March __ 1870.

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

Mandamus to Charles D. Hipple, Esquire, District Attorney of the county of Schuylkill, to sign, &c., bills of indictments upon recognisances returned into the Criminal Court of Schuylkill county.

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The case was argued by F. B. Gowen and F. Carroll Brewster, Attorney General, for the Commonwealth, and by J. W. Ryan, F. W. Hughes, and B. W. Cumming, for respondent.

The opinion of the court was delivered, May 5th 1870, by AGNEW, J.

This proceeding is a mandamus at the relation of the Attorney-General of the Commonwealth against Chas. D. Hipple, the District Attorney of Schuylkill county, to compel him to sign bills of indictment, and to conduct all criminal and other prosecutions in the name of the Commonwealth in the Criminal Court of Schuylkill county. The answer of the defendant brings into question the constitutionality of the court and its jurisdiction, and the duty of the District Attorney to prosecute the pleas of the Commonwealth therein. The Attorney-General has demurred to this return.

The constitutionality of the act to establish criminal courts for Dauphin, Lebanon and Schuylkill counties, approved the 18th of April 1867, Pamph. L. 91, was established by our decision in the case of the Commonwealth v. Green, 8 P. F. Smith 226. It is argued, that that decision settled no more than the constitutionality of the commission issued to Judge Green. This is incorrect. The authority to commission him depended on the constitutionality of the law creating the court. There cannot be a constitutional judge in an unconstitutional court, and it was said in the outset of the opinion of the court, delivered by our Brother Sharswood: "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." He then states: "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;" and proceeds to show that this is constitutional. The question of the constitutionality of the court was fully decided, and the District Attorney ought not to have refused to perform his duties under the law on that ground. We shall therefore not renew the discussion, notwithstanding the effort to induce us to recede from that decision, but shall add, in confirmation, a few observations upon the effect of the amendments to the Constitution of 1790, made in 1838 and 1850, not adverted to in the former opinion.

It was unquestionably the intention of the Convention, in framing the Constitution of 1790, to vest by the fifth article the whole judicial power of the state in tribunals created and to be created. The first section, therefore, declares, that "the judicial power of the Commonwealth shall be invested in a Supreme Court, in Courts of Oyer and Terminer and General Jail Delivery, in a Court of Common Pleas, Orphans' Court, Register's Court, and a Court of Quarter Sessions of the Peace, and such other courts as the legislature may from time to time establish." Between 1790 and the adoption of the amendments of 1838, the legislature had changed and reorganized the Supreme Court several times, by abolishing the Nisi Prius Courts existing at the adoption of the Constitution all over the state, and substituting the Circuit Court system, which it repealed, re-enacted, and again repealed, and by adding to the number of judges. It had also reorganized some of the Courts of Common Pleas, and added law judges to them. It had created new courts, called District Courts, for Philadelphia, Lancaster and York, and created several Mayor's Courts, with jurisdiction for the trial of misdemeanors before triable in the Quarter Sessions. Thus, before 1838, the first section of the fifth article of the Constitution of 1790 had received a construction which enabled the legislature to reorganize the courts named in the Constitution and create new courts and new judges, and to take away portions of the jurisdiction of the constitutional courts and confer them on new tribunals. Under these circumstances the Convention of 1837-8 struck out the second section of the fifth article, which read as follows: "The judges of the Supreme Court and of the several Courts of Common Pleas, shall hold their offices during good behavior. But for any reasonable cause, which shall not be sufficient ground of impeachment, the governor may remove any of them on the address of two-thirds of each branch of the legislature. The judges of the Supreme Court and the presidents of the several Courts of Common Pleas, shall, at stated times, receive for their services an adequate compensation, to be fixed by law, which shall not be diminished during their continuance in office; but they shall receive no fees or perquisites of office, nor hold any office of profit under this Commonwealth."

In place of this section the Convention adopted a new provision, authorizing the judges of the Supreme Court, of the several Courts of Common Pleas, and of such other courts of record as are or shall be established by law, to be nominated by the governor, and by and with the consent of the Senate appointed and commissioned by him. It further provided, that the president judges of the Courts of Common Pleas, and of such other courts of record as are or shall be established...