Commonwealth v. McCombs

• Decision Date: 07 January 1868
• Citation: 56 Pa. 436
• Parties: Commonwealth <I>versus</I> McCombs. Duff's Appeal.
• Court: Pennsylvania Supreme Court

56 Pa. 436

Commonwealth versus McCombs.

Duff's Appeal.

Supreme Court of Pennsylvania.

November 21, 1867.

January 7, 1868.

November 21st 1867.

Before THOMPSON, STRONG, READ and AGNEW, JJ. WOODWARD, C. J., absent

Appeal from the decree of the Court of Quarter Sessions of Allegheny county: No. 154 to October and November Term 1867 L. B. Duff and R. & S. Woods,, for appellant, cited Act of February 3d 1867, Pamph. L. 140; Const. of Penna. Art. 6, § 9, Purd. 21; Acts of May 3d 1850, § 1, Pamph. L. 651, April 13th 1859, § 1, Pamph. L. 617, Purd. 333, 334, pl. 1, 9, 5; Commonwealth v. Sutherland, 3 S. & R. 145, 147; Commonwealth v. Bussier, 5 Id. 462; Commonwealth v. Shaver, 3 W. & S. 340; Const. of Penna. 8 Art. 21; Riddle v. Bedford Co., 7 S & R. 386, 395; Conner v. New York, 2 Sandf. 356; Hoke v. Henderson, 4 Devereux 1-17; Warner v. People, 7 Hill 81.

R. B. Carnahan, for appellee, cited Act of February 3d 1867, supra; Clark v. Commonwealth, 5 Casey 129; Burrell's Case, 7 Barr 34; Riddle v. Bedford Co., supra; Turnpike Co. v. McConaby, 16 Id. 144; Keyser v. McKissan, 2 Rawle 139; Kingsbury v. Ledyard, 2 W. & S. 37; Murphy v. Farmers' Bank, 8 Harris 415; Act of 14th June 1836, § 2, Pamph. L. 621, Purd. 832, pl. 2; Const. of Penna. Art 6, § 8; Butler v. Penn'a., 10 How. 418; Commonwealth v. Bacon, 6 S. & R. 322; Commonwealth v. Mann, 5 W. & S. 418; Barker v. Pittsburg, 4 Barr 51; Conner v. New York, 2 Sandf. 356; Warner v. People, 7 Hill 81.

The opinion of the court was delivered, January 7th 1868, by STRONG, J.

This is an appeal from a taxation of costs. The appellant is the district attorney of the county, and the appellee is the assistant district attorney, holding his office under an Act of Assembly passed on the 3d of February 1867, entitled "An act creating the office and defining the duties of assistant district attorney for the county of Allegheny." The 4th section of this act directs that the "fees of an assistant district attorney shall be taxed and allowed out of the fees, as now allowed by law, to the district attorney of said county; two-thirds of all such fees, costs and allowances in every case, action and proceeding whatsoever to be taxed for the use of the district attorney, and the remaining one-third thereof to be taxed, allowed and collected for the separate use and benefit of said assistant district attorney." An indictment having been tried in the Quarter Sessions with a verdict of not guilty, the clerk taxed the costs as directed by the Act of Assembly, dividing the attorney fee of $5 between the district attorney and the assistant district attorney, in the proportion of two-thirds to the former and one-third to the latter. On appeal, the Court of Quarter Sessions confirmed the taxation, and the district attorney now appeals to this court, insisting that the Act of Assembly is unconstitutional, and therefore that there is legally no such officer as an assistant district attorney, to whom one-third of the attorney fee can be allowed.

The mode of raising this question is most extraordinary. The case is absolutely without precedent. Ordinarily when one is exercising the duties of a public office, and claiming its emoluments without right, the remedy is a writ of quo warranto. When he is acting under the apparent authority of an Act of Assembly, his title to the office is not to be assailed collaterally. This I understand to have been again and again decided. An Act of Assembly, even if it be unconstitutional, is sufficient to give color of title, and an officer acting under it, is an officer de facto: See Clarke v. Commonwealth, 5 Casey 129, and the cases therein cited. Speaking for myself, I would hold that the question which the appellant seeks to raise cannot be raised in this form of proceeding. And this, not because I have any doubts in regard to the constitutionality of the Act of Assembly of February 3d 1867. I have none.

The argument of the appellant is that the act is unconstitutional because it transfers the duties and emoluments of the office of district attorney to another. The 5th section makes it the duty of the assistant district attorney to attend all preliminary hearings in criminal cases in the county when the public interest may require, to prepare all bills of indictments for offences cognisable in the courts having jurisdiction thereof within said county, and submit the same to the grand jury, with the Commonwealth's testimony, and to affix to said bills of indictment the name of the district attorney. This is followed by a proviso that nothing in the section contained shall interfere with the right of the district attorney to prefer a bill of indictment ex-officio, as heretofore, when proper occasion shall arise; and the 6th section repeals all laws and parts of laws inconsistent with the act. It is this 5th section which is supposed to be in conflict with the Constitution. It is this part of the act which, it is argued, takes away partially at least the office of the appellant by transferring its duties to another, and this, it is said, is prohibited by the 9th section of the 6th article of the Constitution, which reads as follows: "All officers for a term of years shall hold their offices for the terms respectively specified only on the condition that they shall so long behave themselves well, and shall be removed on conviction of misdemeanor in office or of an infamous crime."

Before entering upon a consideration of this constitutional provision, it is proper to remark, if the appellant be correct in his position that the 5th section of the Act of Assembly does take away his office and give it to another, and if the legislature is incompetent to do that, it by no means follows that the 4th section and those which precede it are unconstitutional. And it is the 4th section that gives to the assistant district attorney a right to one-third of the attorney fee prescribed by law as a part of the costs in criminal proceedings. It is not contended, and certainly it cannot be with success, that anything in the Constitution prohibits a legislative provision for the election of an assistant district attorney. Nor is it insisted that it is beyond the power of the legislature to reduce fees of a district attorney while he is in office, and give what is taken away another direction. It is evident, therefore, that the appellant has made no progress toward sustaining his appeal, if he has made out that the 5th section of the Act of 1867 is invalid.

The office of district attorney is not one of those offices which are usually denominated constitutional. Unlike that of sheriff or coroner, it is not mentioned in the Constitution, and no provision is made therein for the election or appointment of such an officer. The office had no existence until it was created by the legislature by force of the Act of Assembly of May 3d 1850. That act directed that such an officer should be chosen in each county, to hold his office for...