Borough of Colwyn v. Tarbotton

1 Pa. Super. 179 | Pa. Super. Ct. | 1896

Opinion by

Rice, P. J.,

This is an appeal from the judgment of the court of common pleas, affirming the judgment of the burgess of the plaintiff borough in a suit for a penalty for the violation of a borough ordinance. The first question that confronts us, although it was not raised by the counsel on the argument of the case, is whether an appeal to this court lies in such a ease.

The expressed intention of the act creating this court (act of June 24, 1895, P. L. 212) was to confer “ exclusive and final appellate jurisdiction of all appeals which are now allowed to the Supreme Court in the following classes of cases: ” In class “ C ” are enumerated: “ All other actions . ... in the common pleas .... whether originating therein or reaching that court by appeal, or certiorari from a justice of the peace or alderman or magistrate if the .... amount of money really in controversy .... is not greater than $1,000,” etc. It is plain- that this court has the same appellate jurisdiction that the Supreme Court, had in the enumerated classes of cases, and no greater.

It has been several times decided that the act of May 9, 1889 (P. L. 158), providing that all appellate proceedings in the Supreme Court theretofore taken by writ of error, appeal or certiorari, should thereafter be taken in a proceeding called an appeal, does not extend the right of review, or change its extent in cases already provided for, or modify in any manner its exercise: Rand v. King, 134 Pa. 641; Com. v. Bird, 144 Pa. 194; Gates v. Penna. R. R., 154 Pa. 566. In Mahanoy v. Wadlinger, 142 Pa. 308 (1891), it was decided that the judgment of the common pleas reversing on certiorari the judgment of a justice of the peace in a suit for a penalty for a violation of a borough ordinance (the act prohibited not being an indictable or public offense) was not reviewable in the Supreme Court. The decision was put upon the ground that the case was within the 22d section of the act of 1810 (5 Sm. L. 171), which provides that the judgment of the court of common pleas shall be final.

The present case differs in that the certiorari was to the judgment of a burgess; it differs in no other respect. But in Spicer v. Rees, 5 R. 119, it was held that an action before the Mayor to recover a penalty for the breach of a city ordinance was within the provisions of the 24th sec. of the act of 1810, although that section related in terms to the judgments of justices of the peace only. Said Gibson, Ch. J., “ It is contended, however, that though the action be a civil one, the writ of certionari may well lie from this court to the mayor who is not a justice of the peace, and whose proceedings therefore are not within the prohibitory clause. But he is clothed with no other jurisdiction than that of an alderman, who is virtually a justice, and whose proceedings can be dealt with by the courts of record only as such.” Accordingly the writ was quashed, although the counsel on both sides argued that the act of 1810 did not apply. It is true that in Com. v. Thompson, 110 Pa. 297, the Supreme Court entertained appellate jurisdiction, but that case was a summary proceeding in the name of the commonwealth. The distinction is fully shown in Com. v. Betts, 76 Pa. 465.

We feel constrained to hold that, under the decision in Mahanoy v. Wadlinger, supra, the judgment of the common pleas is not reviewable.

The appeal is dismissed at the cost of the appellant.