Commonwealth v. Green

The opinion of the Court was delivered, July 2d, 1868, by Sharswood. J.

The question raised by the demurrer of the Commonwealth to the defendant’s plea, is whether the Act of Assembly entitled “ An Act to establish criminal courts for Dauphin, Lebanon and Schuylkill counties,” approved April 18th 1867, Pamph. L. 91, is constitutional, so far at least as to authorize the governor to commission the defendant as president judge of the judicial district thereby erected under the name of “ the first district of criminal jurisdiction.” If the legislature had power to erect such a district, to provide for the election of the judge therein in the manner prescribed in the act, and to invest him with any of the powers and rights conferred upon him, we cannot sustain the demurrer, and give judgment of ouster against the defendant.

The main point of contention is whether the legislature can transfer any part of the criminal jurisdiction now vested in the courts named in the constitution, to any other court. It must be admitted that if the framers of the constitution intended to establish an unalterable judicial system, they have not expressed any such intention. The article which relates to the judiciary begins with a declaration that “ The judicial powers of this Commonwealth shall be vested in a supreme court, in courts of oyer and terminer and general jail delivery, in a court of common pleas, orphans’ court, registers’ court, and a court of quarter sessions of the peace for each county, in justices of the peace, and in such other courts as the legislature may from time to time establish.” It may be fully conceded that the legislature cannot abolish any of the courts mentioned in this article, nor divest them of their entire jurisdiction, which would practically effect the same result. *230 The words “ and in such other courts,” points only to a partition of powers. If it had been “ or in such other courts,” it might be otherwise construed. It is a case in which “ and” cannot be construed “ or,” as it often may in statutes and other instruments when necessary to carry out the intention. It may be assumed also that this is true of the court of common pleas, although it is declared that “ until otherwise directed by law, the court of common pleas shall continue as at present established.” It is a provision which seems to relate to their organization, for it is immediately added, “Not more than five counties shall at any time be included in one judicial district organized for said courts.” Yet all this does not affect another proposition, that the legislature have express power to divest the courts named of some of their jurisdiction, and vest it in such other courts as they may from time to time establish, or they may vest a concurrent jurisdiction in such other courts.

We are not without direct authority upon this point in a decision made by this court more than fifty years ago, acquiesced in and followed ever since, and made the foundation for legislative and judicial acts, and proceedings without number, extending to the infliction of the highest penalty which society can impose under the sanction of its laws. The case referred to is The Commonwealth ex rel. O’Hara v. Smith, 4 Binn. 117 . At the time of the adoption of the constitution of 1790, the Supreme Court exercised an original jurisdiction in the county of Philadelphia, where issues in fact were tried, both in banc and at nisi prius, and they issued writs of certiorari and habeas corpus throughout the state, by virtue of which actions were removed from the inferior courts and tried at nisi prius in the different counties. They also issued writs of mandamus and other high prerogative writs throughout the state. By an act entitled “ An Act to alter the judiciary system of this Commonwealth,” passed February 24th 1806, 4 Sm. L. 270, it was provided that no issues of fact in the Supreme Court should be tried in banc, and that the said court should have no original jurisdiction in civil cases. By the same act the western district was created, and the judges directed to hold a supreme court at Pittsburg. A motion was made in the Supreme Court at Pittsburg for a rule to show cause why an information in the nature of a quo warranto should not be filed. It was objected that as the court was without authority to try the issue of fact which might arise, it would be idle to institute a proceeding without the power to prosecute and complete it. It was answered that the act was unconstitutional. The question was argued on behalf of the motion by Henry Baldwin and James Ross, and against it by William Wilkins. It cannot be doubted that it was ably discussed. The court, then composed of C. J. Tilghman and Judges Yeates and *231 Brack enridge, unanimously refused the rule. It will he observed that the power was taken from the Supreme Court without vesting it in any other court, and it is distinctly admitted that in consequence there was no mode of removing persons from corporate offices illegally usurped. “It is contended,” said C. J. Tilghman, “that the constitution secures to this court every powrnr which they had been accustomed to exercise. If so, it also secures to the Courts of Common Pleas all the powers which they had exercised. I think the argument will prove too much. It cannot reasonably be supposed that the powers exercised by all these courts were of so perfect a nature as to make it worth while to guard them by a fundamental article. On the contrary, to every man of reflection, it must have been evident, that in the course of time some alterations in these powers would be necessary ; and that an attempt to render them unchangeable must end in the destruction of the constitution itself.” But he adds, “ There are certain powers secured to this court by plain, positive, affirmative expressions. Such are those mentioned in the third section of the fifth article. Their jurisdiction shall extend over the state, and the judges shall, by virtue of their offices, be judges of oyer and terminer and general gaol delivery in the several counties. These powers no Act of Assembly can take away.” This is a much stronger case than that now before us. The jurisdiction of the Supreme Court is hedged round by some guarantees which do not apply to the subordinate tribunals, either civil or criminal. It might well be urged that the provision that the jurisdiction should extend over the state, meant the jurisdiction they possessed by law at the adoption of the constitution. But a fortiori has the legislature power over the inferior courts. How else can they vest any part of the existing judicial powers, civil or criminal, “ in such other courts” as they may from time to time establish ? ' The constitutional provisions as to the quorum of the old courts have no application to new courts. The legislature could vest any portion of the jurisdiction of the Orphans’ Court in a single judge of another court; for example, the auditing of all accounts of guardians, executors and administrators. So in like manner, road, settlement and desertion cases might be taken from the Quarter Sessions and vested in a new court with a single judge. The statute book abounds with instances in which this power has been exercised without question. At the very period of the adoption of the constitution of 1790 there existed under the authority of the charter of the city of Philadelphia, of March 11th 1789, 2 Smith L. 451, “aMayor’s Court,” composed of the mayor or recorder of the city and one or more of the aider-men, invested with all the powers of a court of quarter sessions for any county within this commonwealth. It is not mentioned in the constitution. The first section of the schedule declares that *232 all laws in force not inconsistent therewith should continue. No one ever breathed a doubt of its consistency with the constitution. It remained in the exercise of a healthful, efficient and unquestioned jurisdiction until by the Act of March 19th 1838, Pamph. L. 122, it was abolished, and a court of Criminal Sessions established, and by that act all powers and jurisdiction, as well of the said Mayor’s Court as of the Court of Quarter Sessions for the city and county of Philadelphia, were vested in the court thereby established, and all pending bills and indictments in either eourts were transferred thereto. This is certainly a contemporaneous exposition of the constitution which we are taught is optima et fortissima in lege.

It is contended that the act in question is in violation of the fifteenth section of the ninth article of the constitution, “ The declaration of rights.” “No commission of oyer and terminer or jail delivery shall be issued.” Let it be admitted that this comprehends jurisdiction of all crimes whatever their degree and character ; it has no application to a court erected by law with a general criminal jurisdiction. It was intended to prevent the creation of special tribunals to try particular individuals or particular classes of cases, tribunals to serve a temporary purpose, and to end with the accomplishment of that purpose. Such was the case of the Commonwealth v. Flanagan, 7 W. & S. 68 . “ The provision was meant,” says the letter of the judges, “ to secure to the commonwealth, as'well as to the accused, a trial by the ordinary tribunals to the exclusion of special tribunals created for the trial of particular cases, with a view to produce a particular result.” They add, “ it is indeed provided by the first section of the fifth article, that the judicial power shall be vested in certain enumerated courts, and in such other courts as the legislature shall from time to time establish. Rut this has regard^to courts established for general purposes, and to be held by judges commissioned for the purpose expressly.” Certainly, as far as can be gathered from the face of the act before us, the courts thereby created were established for general purposes without limit as to time, and the judge is to be elected for the longest period prescribed for the judge of any court other than the Supreme Court, .and is commissioned for these general purposes expressly.

It is objected further that this Act of Assembly violates the amendment of 1850, which provides for the election of “the president judges of the several Courts of Common Pleas, and such other courts of record as are or shall be established by law, and all other judges required to be learned in the law, by the qualified electors of the respective districts over which they are to preside or act as judges.” It has not been and cannot be pretended that the letter of this article is broken. Here a special judicial district is constituted, and the president judge is to be elected by the *233 duly qualified voters therein. But it is said that the spirit of it is violated, because while the court for Schuylkill county is made an active and important tribunal, the provisions for the courts of Lebanon and Dauphin are contingent and illusory. The justices of Schuylkill county are commanded to make their returns to the special court. A grand jury is to be summoned to act upon the bills and other matters given them in charge, while the jurisdiction in Dauphin and Lebanon is restricted to bills found in the Oyer and Terminer and Quarter Sessions, and transferred to the special court at the option of the district attorney. Thus, in effect, the electors of Dauphin and Lebanon choose the judge for Schuylkill. With the justice, wisdom or policy of this legislation we have nothing whatever to do. There is no provision in the constitution which either expressly or by implication requires the judicial system to be uniform throughout the commonwealth. One Court of Common Pleas may be invested with much more extensive jurisdiction than another, even though of counties in the same judicial district. It is not necessary to refer to the, statute book for instances. There is no reason why the same thing may not be done in regard to courts of criminal jurisdiction. However open to just criticism may be the policy of investing the prosecuting officer with the sole power of transferring indictments, and thus in effect deciding whether there shall be any special court held in Dauphin and Lebanon, we have not been pointed to any constitutional prohibition. No clause of the declaration of rights has been invoked. There is nothing in the plan to prevent or impede “ a speedy public trial by an impartial jury of the vicinage.” If there is to be such an election it would most accord with all our ideas of justice as well as mercy that the accused and not the accuser should have the choice of his judge. In all the civil courts of concurrent jurisdiction, however, the plaintiff in general has the right to elect his tribunal. The legistature for the same reason has seen fit in these criminal courts to give the selection to the commonwealth, through its duly chosen and accredited officers. We cannot pronounce an Act of Assembly to be void even though an unworthy partisan purpose may be apparent. We cannot inquire into the political objects which are to be attained. If by what is termed gerrymandering, either of congressional, legislative, or judicial districts, the fair will of a local majority is overridden by voters outside, the remedy is in the hands of the people, whose duty it will be to rebuke at the polls the makers of such unjust laws.

It is further objected that the act in question is contrary to the iStíu-seetiom.ef the first amendment of 18£7: “No bill shall passed by the legislature containing more than one subject, which shall be clearly expressed in the title, except appropriation bills.”

The ground assigned by the Commonwealth is, that the title of *234 the act does not indicate many of its provisions. The title is, “ An Act to establish criminal courts for Dauphin, Lebanon and Schuylkill counties.” There was necessarily included in the act provisions for the appointment and election of the judge as to who should act as clerk and how and by whom the grand and common jurors should be chosen and summoned. The people, in this amendment, never intended that the title of an act should be a complete index to its contents. It may be that the amendment is only directory, and even if otherwise, only that part of the law is void which is not referred to in the title; for both which positions respectable authorities in other states, where they have a similar constitutional provision, might be cited. It is not necessary to decide these questions. There is nothing in the act which is not embraced in the title, which does not relate and is not cognate to the establishment of a criminal court in the counties named: Blood et al. v. Mercelliott et al., 3 P. F. Smith 391 . The intention of the constitutional amendment was to require that the real purpose of a bill should not be disguised or covered by the general words “ and for other purposes,” which was formerly so common, but should be fairly stated; and it must be a clear case to justify a court in pronouncing an act or any part of it void on this ground.

There is one other point to be noticed, that “ the act appoints a clerk who must be elected, and this means elected for the office.” But this question evidently does not arise in this proceeding. In a quo warranto against the judge we cannot try the title of the clerk.

We have thus considered all the grounds of demurrer by the Commonwealth, and have come to the conclusion that none of them have been sustained.

Judgment for defendant.