Wynkoop v. Cooch

• Decision Date: 31 March 1879
• Citation: 89 Pa. 450
• Parties: Wynkoop <I>versus</I> Cooch.
• Court: Pennsylvania Supreme Court

Page 450

89 Pa. 450

Wynkoop versus Cooch.

Supreme Court of Pennsylvania.

March 18, 1879.

March 31, 1879.

March 18th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, WOODWARD, TRUNKEY and STERRETT, JJ.

ERROR to the Court of Common Pleas of Schuylkill county: Of January Term 1879, No. 38.

D. C. Henning, Hughes & Farquhar and B. W. Cumming, for plaintiffs in error.—The Act of 1871 is unconstitutional, inasmuch as the right of trial by jury is entirely ignored in said act. By the 7th section the duty is devolved on the court or judge in case of a finding for the petitioner "to assess such damages as they or he shall think right against the defendant person or persons in possession for the unjust detention of the premises." As the assessment of the damages is discretionary no error in the measure adopted could be successfully assigned in the court above, and they would be unable to review or correct the error in case of excessive damages. Questions of fact which must necessarily enter into the assessment of damages are thus to be decided by the court below, without the consent of the defendants. In this manner the appropriate function of the jury is transferred to the court in palpable violation of the constitutional principle that "the trial by jury shall be as heretofore," and the right thereof remain inviolate: Art. 9, sec. 6, Constitution.

J. Lineaweaver and William B. Wells, for defendant in error. —The remedy provided in the 7th section of the Act of 1871, is in the nature of a fine, for a tortious act, or wrongful holding over, and is a new statutory remedy, not known to the common law, to which our constitutional right of trial by jury alone applies: Byers v. Davis, 6 Wright 89; Ligat v. Commonwealth, 7 Harris 456: Van Swartow v. Commonwealth, 12 Id. 131; Rhines v. Clark, 1 P. F. Smith 96. If this court should be of opinion that the 7th section of the act, which is the only section that confers power upon the court to assess damages, is unconstitutional, it would not affect the case now before the court, as no damages were asked for, or assessed by the judges below, and as it cannot be successfully contended, that the whole of a beneficial act is made unconstitutional because one section, which may be separated from the rest of the act, may be declared void: Lea v. Bumm, 2 Norris 23.

Chief Justice SHARSWOOD delivered the opinion of the court, March 31st 1879.

The main contention of the plaintiffs in error is that the Act of May 13th 1871, Pamph. L. 820, entitled "An act to obtain possession of real estate by purchasers at coroners', sheriffs' and Orphans' Court sales within the county of Schuylkill," is unconstitutional, being in derogation of the rights of trial by jury secured in the Bill of Rights, by the declaration, "Trial by jury shall be as heretofore, and the right thereof remain inviolate." The object of this provision was to preserve the jury as a tribunal for the decision of all questions of law and fact in criminal trials; and of all questions of fact in civil causes. Such it had been theretofore; and it was ordained by the people that such it should continue to be thereafter inviolate. Thus it was determined by this court that an Act of Assembly authorizing the court to enter a compulsory nonsuit — in a case where on all the facts given in evidence there was no legal liability in the defendant was constitutional: Munn v. Pittsburgh, 4 Wright 364. "The complaint," says Mr. Justice STRONG, "that the constitutional right of trial by jury has been violated is made without due consideration. The province of a jury has always been to determine facts. What is the law applicable to those facts has always been a question for the court. In ordering the nonsuit, the court conceded all the facts which the jury could have found, and simply declared that under the law as applicable...