Emerick v. Harris

• Decision Date: 24 December 1808
• Citation: 1 Binn. 416
• Parties: EMERICK v. HARRIS.
• Court: Pennsylvania Supreme Court

1 Binn. 416

EMERICK v. HARRIS.

Supreme Court of Pennsylvania.

December 24, 1808

This court has authority to decide upon the constitutionality of an act of the state legislature.

The 20 l. act is not unconstitutional.

THIS was a certiorari to the alderman's court of Philadelphia. The record shewed an action of debt by Emerick against Harris, in which the defendant had suffered judgment to go by default for 11 l. i 6 is. i 0 Id. and the costs and the only objection to the proceeding was, that the alderman's court had no jurisdiction in causes above 10 l.

Before the adoption of the present constitution of Pennsylvania in 1790, justices of the peace, by an act passed the 5th April 1785, 2 St. Laws, 304. had jurisdiction in cases of debt or demand not exceeding 10 l. ; but by a law passed the 19th April 1794, 3 St. Laws, 736. that jurisdiction was increased, in cases of the same kind, to an amount not exceeding 20 l. This law directed, that if any person should bring suit in other manner than was provided by the act, and should not recover more than 20 l. he should not have judgment for any costs; at the same time it provided, that either plaintiff or defendant in a suit brought before a justice for a demand above 10 l. might before judgment elect to have the cause tried in the common pleas, the defendant, if he was the party electing, giving security in the nature of special bail, or to enter a common appearance, accordingly as the cause originated by capias or summons; and it entitled either party, even after judgment, if the amount exceeded 5 l. to appeal to the common pleas, upon giving security to answer costs, to prosecute the appeal with effect, & c. The same jurisdiction, thus modified, was given to the alderman's court, which proceeded without the intervention of a jury.

The case turned upon the validity of this law, which was alleged to be unconstitutional and void, because it violated the 6th section of the 9th article of the constitution, which says " that trial by jury shall be as heretofore, and the right thereof remain inviolate."

It was argued at September and December terms 1803, by M'Kean (attorney general) Ingersoll, and E. Tilghman, for the defendant, and by Hopkinson and Rawle, for the plaintiff.

The arguments for the plaintiff, were in substance, 1. That this court had no authority to declare an act of the legislature to be unconstitutional. That such a power was not expressly given to the judiciary by the constitution; and without it being at most but a coordinate branch of the government, they could not defeat or control the legislature, by vacating laws, of the constitutionality of which the one had no better right to judge than the other. That in fact neither had the right; the people being the safeguard of the constitution and holding in their hands the remedy for all injuries to that compact, in the power of dismissing bad servants. That if the court took the power by implication from either their oath of office, or the nature of their duties, so might the common pleas, the alderman's court, justices of the peace, and even many executive officers, until at last there would be no person too illiterate or too humble to correct the legislature of the state, and to arrest the execution of the laws. 2. That the law of 19th April 1794 was not contrary to the constitution. That the legislature had an express right by that instrument, to organize new judicial tribunals; and that so long as the trial by jury was preserved through an appeal, the preliminary modes of obtaining it might be varied at their will and pleasure. That to deny them this right, was to prohibit the minutest change in any of the formal process and rules by which jury trial was obtained and regulated. That by this law the trial was open to the parties at their own election, or by appeal; and it rested with them, whether to remain before the magistrate or to proceed in the old way. That the only difficulty was about the costs; and that therefore the question of constitutionality came to this, whether the legislature had a right to abridge, or to abolish costs, in cases wherein they were recoverable before the constitution was adopted. That this was almost too plain for argument, and was a matter upon which a multitude of laws had been made since that time, without a suggestion of their impropriety. That it was always a question of policy for the government, and not of right in the party; some parties paying none, others paying double or treble costs according to the nature of the case; a proportion sometimes existing between them and the damages recovered, sometimes not; the whole being an arbitrary system, of the change of which, or even its extinction, no one had a right to complain.

For the defendant the arguments were, 1. That the constitution was the paramount law of the land; and that all acts of the legislature which impugned its provisions, were not merely voidable, but absolutely void; they were not laws at all, as they wanted the vital efficacy of a law. That if an act, deriving its authority from a supposed law, should come before the court, there could be no doubt of the court's power to defeat the act, if the law was found not to exist; which was precisely the case where an act was founded upon a law repugnant to the constitution. That the question was between conflicting laws, one of which must always stand, and the other give way; and the whole point was, whether the court, who could execute but one of the laws, had a right to decide whether there was a conflict, and which should give way. That it was too plain for debate, that when there is a paramount law by which the court is at all events bound, it must have a right to say whether a law, which has no authority upon them except it conform to the paramount law, does or does not conform to it. That the judiciary owe a duty to the constitution above that which they owe to the legislature; and where the one says one thing and the other a contrary thing, they must adhere to the first, which in effect is deciding against the second. That finally the right of the court had been repeatedly affirmed by judicial decisions; as in Vanhorne v. Dorrance ^[a] , Hayburn's case ^[b] , Hylton v. The United States ^[c], and many others in our own state. 2. That the constitution, by directing that trial by jury should be as heretofore, and the right thereof remain inviolate, had interdicted the legislature from abolishing or abridging this right in any case, in which it had existed before the constitution. That a prohibition to do this directly, was a prohibition to do it indirectly, either by deferring the decision of a jury until one, two, or more previous stages of the cause had been passed, or by clogging the resort to that tribunal by penalties of any kind, either forfeiture of costs, security upon appeal, or delay. That the power to obstruct at all, implied a power to increase the obstructions, until the object became unattainable; and that the instant the enjoyment of the right was to be purchased by sacrifices unknown before the constitution, the right was violated, and ceased to exist as before. That the question was not whether the legislature had a right to take away costs altogether, but whether they could make the loss of them a penalty for demanding a right secured by the constitution. That all encroachments upon constitutional rights were in the first instance minute; that they increased in magnitude, as the boldness of the usurping power increased by the acquiescence of the citizen; and that therefore it was the duty of the judiciary to detect and resist the usurpation at the outset.

Cur. adv. vult.

On this day the judges delivered their opinions.

YEATES J.

On the first question argued in this case, I have no doubt whatever, that this court is vested with the legitimate power of deciding on the constitutionality of an act of the legislature. The judicial authority of this state comprehends the exercise of this right as well on principle as precedent.

The constitution, being the act of the people, and the compact according to which they have agreed with each other that the government which they have established shall be administered, is a law to the government; and a sacred reverence for it is an indispensable requisite in the character and conduct of every public agent. 1 Tuck. app. to Black. Comm. 29.

It cannot be denied that an anxious desire is expressed by the people in the formation of the constitution of the United States, and of this state, to keep the powers of the legislative, executive, and judicial departments, distinct and independent of each other. They are separate and coordinate branches of the government, and are expressly recognised as such, by a special enumeration of their respective powers and rights. By the 6th article of the constitution of the United States, " the senators and representatives in congress, and the members of the several state legislatures, and all executive and judicial officers both of the United States and of the several states, shall be bound by oath or affirmation to support the constitution." This is further enforced by a law of the United States passed on the 1st June 1789. 1 U. S. Laws 26. By the 8th article of the constitution of this state " members of the general assembly, and all officers, executive and judicial, shall be bound by oath or affirmation to support the constitution of this commonwealth, and to perform the duties of their respective offices with fidelity." On what grounds are these provisions made, unless, as judge Tucker observes, the constitution regards the judicial exposition of that instrument, as the bulwark provided against the undue extension of legislative power? 1 Tuck. app. 288....