76 Pa. 465 | Pa. | 1875
delivered the opinion of the court, January 4th 1875.
A motion was made to quash this writ of error on the ground that the judgment of the Court of Common Pleas was final under the Act of 20th of March 1810. But that court owes its power to review the proceedings of justices of the peace to a wider and higher source than the Act of 1810. The 8th section of the 5th article of the Constitution of 1790, gave to it the like power possessed by the Supreme Court to issue writs of certiorari to justices of the peace to cause their proceedings to be brought before them, and the like right and justice to be done. The power of the Supreme Court was very ample under the Act of. May 22d 1822, and is equally extensive under the Act of June 16th 1836 : See Commonwealth v. Beaumont, 4 Rawle 366 ; and Appeal of the Commissioners of Northampton, 7 P. F. Smith 452. The true question, therefore is, whether the proceeding before the jus
On this point we have authority also ; thus in Clark v. Yeat, 4 Binney 185, it was held that the 22d section does not apply to a landlord and tenant proceeding before two justices. In Lenox v. McCall, 3 S. & R. 95, it was held that the 24th section does not apply to a proceeding before two justices by a purchaser at sheriff’s sale to recover the possession from the defendant in the execution. Caughey v. The City of Pittsburg, 12 S. & R. 53, was an action before a justice by a'citizen for a penalty under an ordinance of the city prohibiting the buying of flour to sell again within market-houses. The Court of Common Pleas quashed the certiorari as being too late under the 22d section of the Act of 1810, but on a writ of error, this court reversed the order to quash, on the ground that the suit was not within the provision of the 22d section. The Commonwealth v. Burkhart, 11 Harris 521, was a writ of error to remove a proceeding by certiorari to a justice of the peace on a summary conviction for disturbing a religious meeting. This court refused a motion to quash the writ, holding that the 22d section of the Act of 1810 applied only to the jurisdiction given by that act. These cases are directly upon the interpretation of sections 22 and 24 of the Act of 1810. There are other cases
All these cases underwent examination, and this court rendered a final judgment. It may be proper also to remark, that the question, whether a writ of error would lie, was determined in several cases, and it- was held that it would to the Court of Common Pleas, on the ground, that after the case is brought into that court from the justice, the proceeding is in the course of the common law: Ruhlman v. Commonwealth, 5 Binney 27; Commonwealth v. Burkhart, 11 Harris 521; Beale v. Dougherty, 3 Binney 435; Clark v. Yeat, 4 Binney 185.
Finally, it has been held in several cases, that the jurisdiction of this court cannot be taken away except by express terms or necessary implication: Overseers v. Smith, 2 S. & R. 366; and see note to 2 Brightly’s Dig., p, 1350. It is to be noticed that if our jurisdiction in this case were held'to be taken away, it would be upon the merest inference, not necessary, and certainly not irresistible. This action is not brought under the Act of March 20th 1810, but under the General Road Law of 1836. When the 75th section of the latter act gave the remedy for the recovery of penalties incurred under the act “ in the same manner as debts of like amount are recoverable with costs,” it adopted the provision of the Act of 1810 for the form of the action and mode of proceeding to recover the penalty, but did not necessarily take away the jurisdiction of this court to supervise the proceeding, and keep the inferior tribunals within their proper bounds. We are therefore of opinion that an action such as this, in the name of the Commonweath, to recover a penalty for a statutory offence, is not a civil action, such as is meant in the 22d and 24th sections of tbe Act of 1810. It may be so in form, but in its true nature and
The 67th section of the Road Laws of 13th March 1836, is in these words: “ If any person shall stop, fill up or injure, any drain or ditch, made by a supervisor, for the purpose of draining the water from any public road or .highway, or shall divert or change the course thereof without the authority of the supervisor for the time being, such person shall, for every such offence, forfeit and pay a sum not less than four dollars,- nor more than twenty dollars.” The 'complaint was, that the defendant tore out, destroyed, and filled up a drain’made by the road commissioners of Wayne Township, in the public road, leading from, &c., and so destroyed and filled up said drain that the water could not cross said road, &c. The Court of Common Pleas reversed the conviction and' judgment of the justice on the ground that the 67th section applied only to drains running from a road to carry away the water from it, and not to a drain crossing a road. This was an error. The interpretation is too narrow. The 67 th section is the only one in the act for the protection of drains. This interpretation leaves all hill-side drains unprotected, while these are more numerous and important than all. others. Roads on hill-sides must be protected from the wash of the rain, which, running down from above, strikes the road and cuts it away if not properly ditched. The ditch or drain necessarily runs along the inner side of the road next to the hill and must be carried across the road in small drains at short distances apart. If the entire wash from the hillside be permitted to run on the inner side to the bottom, it increases as it goes, until swollen to a flood, ofttimes it cuts ’out deep gullies, destroys .the road, and endangers travel. Hence, to affirm that a drain across the road is not in the language of the act “for the purpose of draining the water from the road or highway,” is to deny the fact, and ignore its true use and most valuable purpose. It does drain the water from the road, unless we can stay the course of nature and forbid the falling rain from descending the sides and flooding the road with water. The man who destroys these road-drains closes the safety-valves of the flood poured upon the earth, by a higher power, endangers all who travel, and deserves the punishment the laws visit upon the offence. The certiorari was within the letter and spirit of the act. The judgment of the Court of Common Pleas is therefore reversed, and that of the justice is affirmed, and the record is ordered to be remitted for execution.