Commonwealth v. Superintendent of House of Correction

• Decision Date: 23 October 1916
• Docket Number: 283-1916
• Citation: 64 Pa.Super. 613
• Parties: Commonwealth, ex rel., Appellant, v. Superintendent of House of Correction
• Court: Pennsylvania Superior Court

64 Pa.Super. 613

Commonwealth, ex rel., Appellant, v. Superintendent of House of Correction

No. 283-1916

Superior Court of Pennsylvania

October 23, 1916

Argued October 6, 1916 [Syllabus Matter]

Appeal by plaintiff, from order of Q. S. Philadelphia Co., February Sessions, 1916, remanding defendant in habeas corpus proceedings in case of Commonwealth, ex rel., Florence Wilson v. Superintendent of House of Correction, Employment and Reformation for Adults and Minors.

Petition for habeas corpus.

The case turned as to whether the magistrate who committed the respondent as a disorderly street walker had jurisdiction to do so, or whether the Act of June 2, 1871, P. L. 1301, on which the jurisdiction was claimed had been repealed by the Act of June 17, 1915, P. L. 1017.

The court in an opinion by Davis, J., made the following order And now, to wit, this 20th day of May, 1916, upon consideration of the petition and answer in the above entitled matter, it is ordered and decreed that the Act of 17th June, 1915 (P. L. 1017), does not repeal the Act of 2d June, 1871 (P. L. 1301); and it is further decreed that the authority of magistrates to commit disorderly street walkers to the House of Correction and the jurisdiction of the Court of Quarter Sessions have not been divested by the Act of 1915 and it is ordered, directed and decreed that the petition be dismissed and the relator be remanded.

Error assigned was the order of the court quoting it.

Reversed.

George Quintard Horwitz and James Gay Gordon, with them William F. Rorke, for appellant. -- The contention of this appellant is that by the use of this word " exclusive," giving to the Municipal Court original jurisdiction of " all proceedings concerning, or trials of charges brought" against street walkers, the legislature meant that it should have jurisdiction of everything properly pertaining to these matters, that could be cognizable in such a court, to the exclusion of all other courts, whatever may have been the condition of legislation prior to the passage of the act.

This is the meaning put upon this word by the courts of other commonwealths when considering the use of the word " exclusive" in reference to court jurisdiction: Watson v. Henderson, 98 Ark. 63; Hutkoff v. Demorest, 103 N.Y. 377.

When the legislature gave to the Municipal Court exclusive jurisdiction over this class of offenders, there was nothing to show but that it was the intention of the legislature to prevent the committing of these women to the house of correction. The Municipal Court is not bound to send women to the house of correction in order to punish them. Therefore, when the legislature said that the jurisdiction in the Municipal Court should be " exclusive," there is no reason why it should not be assumed that the legislature intended that the Municipal Court should deal with these women without sending them to the house of correction: Com. v. Hopkins, 53 Pa.Super. 16; Gerlach v. Moore, 243 Pa. 603.

Thomas James Meagher, for appellee. -- It is purposed to consider what is meant by disorderly street walking and to show that it was a common law misdemeanor. It has been defined by our courts and it means a street walker who, at the time in question, is engaged on the highway in the plying of her trade. Another name for it at common law was " night-walker" or " common night-walker" : Commonwealth, ex rel., Miller v. Superintendent of House of Correction, 19 Pa. Dist. 1054; Com., ex rel., Epstein v. Superintendent of House of Correction, 19 Pa. Dist. 1049; Com., ex rel., Kelly v. Superintendent of House of Correction, 22 Pa. Dist. 92; State v. Dowers, 45 N.H. 543.

Indeed, it seems clear that disorderly street walking is only a particular form of the recognized generic commonlaw crime recognized in Pennsylvania of indictable disorderly conduct on the highway tending to the corruption of public morals or the like. See in this connection our Pennsylvania cases of Commonwealth v. Spratt, 14 Philadelphia 365; Commonwealth v. Haines, 6 Pennsylvania Law Journal, 239 (Supreme Court of Pennsylvania on certiorari from Mayor's Court of Philadelphia); Pennsylvania v. Morrison, 1 Addison 274; Aldermen and Justices of the Peace, 2 Parson's Equity Cases 458; and Commonwealth v. Stalcup, 32 Lancaster Law Review 393; State v. Russell, 14 R.I. 506.

The Act of 1915 conferred, as a part of the amended criminal jurisdiction of the Municipal Court, exclusive jurisdiction over disorderly street walkers. Admittedly there is no express repeal of the Act of 1871; the Act of 1915 merely contains the general clause of repeal of all inconsistent legislation, thus: " All acts or parts of acts inconsistent herewith be and the same are hereby repealed" ; and the Act of 1871 must be held to be repealed, if it is repealed, by virtue of an implied repeal of its provisions by necessary inconsistency between the Act of 1915 and it. But both acts clearly can stand: Opening of Parkway, 249 Pa. 367; Com., ex rel., v. DeCamp, 177 Pa. 112; Com. v. Pottsville, 246 Pa. 468.

Before Orlady, P. J., Porter, Henderson, Head, Kephart, Trexler and Williams, JJ.

OPINION

ORLADY, J.

Florence Wilson, this relator, was arrested by a policeman, and taken before Magistrate William F. Beaton, to answer a charge of being a disorderly street-walker, in violation of the Act of Assembly of June 2, 1871; after a hearing, she was committed by the magistrate, as a disorderly street-walker under the said act, and sentenced on February 12, 1916, to nine months imprisonment in " The House of Correction, Employment and Reformation for Adults and Minors, in the City of Philadelphia."

On the same day, by her next friend, she presented her petition for a writ of habeas corpus, to a judge of the Court of Quarter Sessions, which was allowed, and after a hearing the relator was remanded to the house of correction, & c.

On August 16, 1916, a certiorari from this court was filed and the question involved, as presented by the record, is whether the House of Correction Act of June 2, 1871, P. L. 1301, has been repealed by the Act of June 17, 1915, P. L. 1017, in so far as the acts are in jurisdictional conflict in regard to the arrest and commitment of disorderly street-walkers.

The Act of 1871 is entitled an act " To establish and maintain for the City of Philadelphia, a House of Correction, Employment and Reformation for Adults and Minors," and by its second section it provides, inter alia, " It shall be the duty of the judges of the Court of Quarter Sessions, . . . . to commit to said House of Correction, Employment and Reformation, all vagrants, habitual drunkards, street-walkers and disorderly adults or minors, whom they deem best to so confine," -- and by Section 3, the term for such detention was fixed at " not less than three, nor more than twelve months," and, " all persons, adults or minors, that may hereafter be committed, according to the existing laws of this Commonwealth, before . . . . any alderman of the City of Philadelphia, as a vagrant, drunkard, or disorderly street-walker, shall be sentenced to suffer confinement in the said house of correction, etc." The present committing magistrates in the City of Philadelphia, are the successors in office of the aldermen of 1871, and by the Constitution of 1874, the office of alderman in the City of Philadelphia is abolished by Article V, Section 12.

On July 12, 1913, P. L. 711, an act was approved, entitled, " An act to establish a court for the County of Philadelphia; prescribe its jurisdiction and powers; provide for the serving of its writs, process and warrants, by the proper officers of the County or City of Philadelphia; regulate the procedure therein; and appeals therefrom, and provide for the expenses thereof, and creating a court of record, to be known as the Municipal Court of Philadelphia."

By Section 11, of this act, it was provided, " The jurisdiction of the said Municipal Court shall be exclusive, -- (a), In all proceedings brought against any husband or father, wherein it is charged that he has without reasonable cause separated himself from his wife or children, or from both, or has neglected to maintain his wife or children; and in all proceedings where any child of full age has neglected or shall neglect to maintain his or her parents, not able to work or of sufficient ability to maintain themselves; and in all cases for the custody of children; (b), In all proceedings concerning dependent, delinquent or neglected children, as defined by existing laws relating thereto, which are hereby made applicable to the proceedings in the Municipal Court. The judges of the said Municipal Court shall be ex officio justices of the peace."

By the Act of June 17, 1915, P. L. 1017, the eleventh section of the Act of 1913, was amended, and its scope enlarged and extended, by adding thereto, " Provided, however, That nothing herein contained, and no exception to the jurisdiction of the said court herein set forth, shall be construed to deprive the said court of exclusive jurisdiction in those cases hereinafter in this section set forth."

Paragraphs a and b of the Act of 1913, are transcribed in the exact words of that act into the Act of 1915, and, added paragraphs embracing other matters are incorporated, as follows: (c) " In all proceedings concerning, or trials of charges brought against, all persons, whether adults or minors, accused of disorderly street-walking" ; (d), " In all proceedings concerning, or trials of charges brought against, all minors between the ages of sixteen and twenty-one who shall disobey their parents' command, or be found idle in the streets, and against all disorderly children" ; (e), " All children not under the age of sixteen years deserting...