Commonwealth v. M'Williams

• Decision Date: 25 May 1849
• Citation: 11 Pa. 61
• Parties: The COMMONWEALTH <I>ex relatione</I> JAMES DYSART <I>v.</I> JONATHAN M'WILLIAMS and JOHN S. ISETT.
• Court: Pennsylvania Supreme Court

11 Pa. 61

The COMMONWEALTH ex relatione JAMES DYSART v. JONATHAN M'WILLIAMS and JOHN S. ISETT.

Supreme Court of Pennsylvania.

May 25, 1849.

May 25.

ERROR to the Common Pleas of Huntingdon.

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A. P. Wilson and Isaac Fisher, for the plaintiff in error.—The answer of the defendants is merely an informal denial of the charges contained in relation, and amounts to no more nor less than a plea of non usurpavit upon which the relator was entitled to judgment of ouster, for in this proceeding, the defendant cannot plead not

guilty or non usurpavit, for if he has in fact used the office or franchise, he must show by what authority he has done it, setting out his title specially, and concluding with an absque hoc: Cole on Criminal Informations, 210, 46; Bull. N. P. 207, 1 ed.; 2 Sel. N. P. 1185, 9 ed. The defendant is bound to plead his title accurately, and to put it on the right ground, or judgment will go against him: Cole, 212. If any one issue be found for the crown, the crown must have judgment. If the plea contains no title against the crown, the crown must have judgment: Cole, 213. If the defendant relies on formal defects in the information, he must demur specially: Cole on Crim. Informations, 207. Where a defendant pleads only one insufficient plea, it amounts to a confession of the usurpation charged upon him: Cole, 209, pt. 2. As to certainty in an indictment or information, see Whart. Am. Crim. Law, 81-2. Every fact or circumstance laid in the indictment which is not a necessary ingredient in the offence, may be rejected as surplusage: Whart. Am. Crim. Law, 99. All unnecessary words may on trial or arrest of judgment be rejected as surplusage, if the indictment would be good on striking them out: Whart. Am. Crim. Law, 165, 6, 7. See also Lewis Crim. Law, 536, 1 T. R. 322; Com. Dig. Pleader, C. 2, 8, 9; F. 12, 5; Co., 412; Mod. 327. There can be no use of requiring proof of allegations, which are wholly impertinent to: Whart. Am. Crim. Law, 165.

Matters of inducement or aggravation, as has been said, need not be accurately proved, but whatever is pertinent to the constitution of the offence must be accurately shown: Whart. Am. Crim. Law, 167.

As to surplusage, and what allegations in an indictment must or need not be proved: Russell on Crimes, 736, 7, 8.

It is sufficient to prove so much of the charge in an indictment, as constitutes an offence punishable by law. If this be done, the offence need not be proved to the whole extent laid: Russell on Crimes, 790; Roscoe's Ev. 909; Whart. Am. Cr. L. 190.

In quo warranto the defendant must either disclaim or justify; he cannot plead non usurpavit, for, if he admits his possession of office, he is bound to show his title specially.

Jurisdiction of this court: Purd. Dig. 1847, p. 889.

Every citizen who pays taxes in any ward or township is entitled to an information: Com. v. Brown, 1 S. & R. 382; Willcock on Corp., 256, 7, pl. 335, 427.

Quo warranto has been allowed against a person, who is admitted to be a legal officer, to show by what title he holds a franchise which he assumes to exercise in his official capacity. As if the mayor assume the right to admit freemen without the consent of the rest of the body corporate: Willcock on Corp. part 2d, pl. 337.

As to the constitutionality of the act of 1846: Lambertson v. Hogan, 2 Barr, 245; Bloodgood v. M. & H. R. T., 18 Wend. 13, 16, 17, and 18; Varnick v. Attorney General, 5 Paige, 137; Mayor of Pittsburgh v. Scott, 1 Barr, 300-314; Rogers v. Bloodgood, 20 John. 775; Phillips v. Turnpike Co., 2 Pa. Rep. 184; Carter v. Commonwealth, 3 Pa. Rep. 260; Pittsburgh v. Young, 3 Watts, 363.

The defendants have not shown that they held any office, nor that they had any authority for levying, assessing, and collecting the taxes which they have admitted that they did levy and assess, for the use and benefit of the turnpike road company: Baldwin Rep. 205.

Benedict, contrà, the court declined hearing.

The opinion of this court was delivered by BELL, J.

The gravamen of the relator's complaint is, that the defendants claimed to exercise the office of supervisors and assessors of taxes in the township of Franklin, and the right and authority to assess upon, and collect from, the inhabitants of the township, taxes and large sums of money, for the use of "the Spruce Creek and Water Street Turnpike Company," without any warrant or lawful authority for exercising the same, under and by colour of an act of Assembly, passed the 13th day of April, 1846. The defendants, by their plea, take issue upon the averments, and deny that they claim to exercise the office of supervisors, or authority to assess, levy, and collect taxes, for the use suggested, under and by virtue of the act mentioned. It was competent to the defendants so to traverse, for though in a writ of quo warranto a simple plea of not guilty, or non usurpavit, is bad, a defendant may deny the material allegations tendered by his antagonist. Thus he may plead that he did not use or exercise the office or liberties in question: Rex v. Ponsonby, Sayer's R. 245; 2 Bro. P. C. 311; 1 Ves. Jr. 1; or, that it is not a public office, touching the government of a borough, or touching the election and return of burgesses to serve in parliament: Rex v. M'Kay, 4 B. & C. 351; 6 D. & R. 432. Perhaps, in strictness, these defendants ought to have gone further, and shown by what authority they claim to execute the office of supervisors of Franklin township, by specially setting out their title to it. Admitting this to be so, it is shown by the record the relator consented to go to trial on the issue tendered, and prosecuted it to judgment, without objection on this score. Now all the evidence in the cause proves, conclusively, the taxes complained of were not levied under the act of Assembly pleaded, but by virtue of the authority vested in supervisors of townships, by the act of 15th of April, 1834. Consequently, upon the very point presented by the pleadings, the verdict and judgment could not be otherwise than for the defendants.

But the object of the relator was to ascertain whether the defendants were justified by the act of 1834, in levying and collecting tax to enable them, as supervisors, to subscribe for shares of the capital stock of the turnpike company, at the cost of the inhabitants of the township? No doubt the remedy he adopted would have afforded him the means of testing this. Long disused in England, the writ of quo warranto was unknown to our practice until introduced by the act of June 1836. Following the example of the mother country, we had substituted the device of an information in nature of the ancient writ. But both these methods of proceeding are available, not only against one who usurps an office or franchise, but also for an abuse of it. Thus a quo warranto was held to lie against a mayor, &c., for an unlawful exercise of power, by admitting as freemen, persons who were not entitled; for it is said, there is no other remedy: Com. Dig. tit. Quo warranto (C); and the same is true of an information, which lies wherever the writ was available. Holt, C. J., said, the officers might be ousted and fined, although the franchise could not be seized into the king's hands, for, in such cases, the misconduct of the incumbent does not work a forfeiture of the corporate office: Rex v. Hertford, 1 Salk. 374; S. C. 1 Ld. Ray. 426; Willcock...