Campbell v. Commonwealth

| Pa. | Jan 3, 1881

Mr. Justice Mercur

delivered the opinion of tne court, January 3d 1881.

The plaintiffs in error were tried and convicted of arson. Motions for a new trial and in arrest of judgment were made and overruled. Sentences were pronounced.

No exception was taken, no protest was made, to' the organization of the court, or to the legal qualification of any of its members. No error is assigned to any ruling of the court during the trial, nor to the form of'the sentences. The objection is now made in this court for the first time, that the two associate judges, not learned in the law, sat with the president judge, and participated in the trial and sentence.

It is not denied that these judges professed to act under and by virtue of an election by the people of the county, and a commission in regular form, issued to each of them by the Governor of the Commonwealth. The objection to the validity of their title to the office rests on the allegation that under the Constitution of 1874, and subsequent legislation, the people had no power to elect associate judges in the county of Fayette.

Under due forms of law they hold their offices by title regular on its face. They are performing the duties thereby imposed on them, and enjoying the profits and emoluments thereof. Thus they are judges defacto, and as against all parties but the Commonwealth they are judges de jure. Having at least a colorable title to these offices, their right thereto cannot be questioned in any other form than by quo warranto, at the suit of the Commonwealth: Clark v. Commonwealth, 5 Casey 129. They are entitled to notice and an opportunity to be heard in defence of their rights before they shall be adjudged to be invalid. As their title then cannot be impeached in this collateral action, it is unnecessary to consider any question relating to their right as against the Commonwealth.

Judgment affirmed.