In re Pennsylvania Hall

• Decision Date: 03 May 1847
• Citation: 5 Pa. 204
• Parties: In the Matter of the PENNSYLVANIA HALL.
• Court: Pennsylvania Supreme Court

5 Pa. 204

In the Matter of the PENNSYLVANIA HALL.

Supreme Court of Pennsylvania.

April 22, 23, 1847.

May 3, 1847.

April 22, 23.

CERTIORARI to the Quarter Sessions of Philadelphia.

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P. A. Browne, for the County Commissioners.—He also contended that the act was not only unconstitutional, in depriving the parties of the trial by jury, but also in compelling parties not in any way concerned in the riot to pay for the damage thereby.

E. K. Price and Newcombe, contrà.—This was not a jury to try facts, but an inquest to assess damages, between the public and individuals, and which the public, by their legislature, has authorized. These inquests were known to the common law before our constitution, as in writs of ad quod damnum, (Fitzh. 509,) and may therefore still be used under the constitution, as is common in street and road juries, and sheriffs' inquests, which have always been composed of six men; Case of Spring Garden St., 4 Rawle, 194;

Bradf. Law, 13, 3 Sm. 512 — 518; Lancaster Turnpike Act, 1792, 3 Dall. 251; 5 Binn. 481. So in case of damages by the state internal improvements, under the act of 1827; Commonwealth v. Fisher, 1 Penna. Rep. 465. Now they are reduced to three; Act of 1830. So by the Lateral Railroad Act, six are to assess, and this has been decided to be constitutional; Lloyd v. Harvey, 10 Watts, 63. The proceedings in lunacy, and under the arbitration law, would be equally subject to this objection. The matter was fully discussed in Beekman v. Saratoga Railroad, 3 Paige, 75; Livingston v. Moore, 7 Peters, 469.

The question as to the court was settled by Zephon's case, 8 Watts & Serg. 386. The other exceptions ought not to be noticed; there being no exceptions below, they are waived; Allentown Road, 5 Whart. 442. And so of clerical errors which might have been corrected; Dyott's Estate, 2 Watts & Serg. 564.

There was no occasion for a new petition; the inquest having been set aside, the matter remained as if it had never been granted; Roads and Bridges, 2 Whart. Dig. 487, pl. 118; Cunningham v. Gardner, 4 Watts & Serg. 120 — 124. So where the inquest cannot agree, under the Landlord and Tenant act.

The act was repealed by accident, and when that was discovered it was reinstated.

May 3. ROGERS, J.

It is declared by the legislature, in the act of the 16th of June, 1836, that in case any dwelling-house or other building, &c., shall be injured or destroyed in the city and county of Philadelphia, in consequence of any mob or riots, &c., the owner or his agent may apply, if in the county, to the Court of Quarter Sessions, and if in the city, to the Mayor's Court, who shall thereupon appoint six disinterested persons, &c., to ascertain and report the amount of the loss, and also whether the owner had any immediate or active participation in the mob or riot. And a report being made and confirmed by the court, on examination of the case in suit, it was ordered that it be certified to the county commissioners, who shall forthwith draw their warrant on the treasurer for the amount so awarded.

(His honour then stated the proceedings.)

First, it is contended that the thirty-sixth section of the act of the 16th of June, 1836, is unconstitutional and void. It is urged that the right of trial in court by a jury of twelve men, is secured to the citizens of Pennsylvania by the common law. That it is a reserved judicial right of the people, guarantied by the Constitution of the United States, and of this state. And that this right has been violated by substituting in lieu of a trial in court by a jury of twelve men, an inquest of six men out of court. In support of this view of the case, reliance is had on the ninth article, sixth section of the constitution of Pennsylvania, which declares, that the "trial by jury shall be as heretofore, and the right thereof remain inviolate." But the answer to these suggestions is, that the article referred to relates to the trial of issues of fact in civil and criminal cases in courts of justice. It contains nothing expressed or implied which inhibits the legislature from ascertaining damages, as before allowed, by commission, on the award or inquest of a less number than twelve men out of court. The right of trial by jury, which is justly esteemed the palladium of our liberties, especially in criminal cases, must be preserved inviolate, but this claim has never been so construed as to prohibit an alteration in the manner of choosing or summoning jurors, or in making any other change whereby, in the judgment of the legislature, it is made a more effectual instrument for the advancement of justice, and the preservation of our rights. But this would be the effect if construed according to the letter and not the spirit. Whether the legislature would have power, under the constitution, to alter the number of jurors on trial in court, or dispense with unanimity in finding their verdict, will be a grave question if it should ever arise, but which it is unnecessary now to decide. The constitution does not say, that in all cases where the facts have heretofore been found by a jury or inquest, they shall continue to be so ascertained. The trial by jury shall be as heretofore, that is, in all civil or criminal cases in court, this mode of trial shall be preserved and remain inviolate. But be this as it may, yet we think this case stands clear of all constitutional difficulty, for this...