53 Pa. Super. 16 | Pa. Super. Ct. | 1913
Opinion by
Following a hearing in the county court of Allegheny county, the defendant appellant was ordered by that court to pay the sum of $40.00 per month “for the support of his four minor children,” etc. From that order he appeals. His principal assignment of error is “the court erred in assuming jurisdiction in this case.”
Whether or not the county court was lawfully invested with jurisdiction to hear and determine a desertion case could not, we think, depend on the form of the recognizance entered into by the appellant before the magistrate who took the information and issued the warrant of arrest. That recognizance, it is true, obliged •the defendant to appear at the next term of the court of quarter sessions. It would not have been adequate to compel his appearance in the county court. But he did appear there in person and by counsel and had his case beard on its merits. If then that court had? under the law.
Had the county court jurisdiction of his cause? It is conceded that since the decision in Gottschall v. Campbell, 234 Pa. 347, it cannot here be successfully argued the legislature overstepped any constitutional limitation of its powers in creating that court. It is further conceded the act creating the court expressly conferred upon it jurisdiction to hear and determine desertion cases. To deny the jurisdiction thus expressly conferred is necessarily to assert the lack of power in the legislature to do what it had clearly undertaken to do. The supporting argument chiefly rests upon both clauses of sec. 26 of art. Y of the constitution, and may thus be briefly and fairly stated:
(a) It is not competent for the legislature to so legislate that, for instance (we use the illustration of the appellant’s brief), the court of quarter sessions of Beaver county should possess and exercise powers the court of quarter sessions of Allegheny county may not possess and exercise.
(b) When jurisdiction had been, prior to the constitution of 1874, conferred by the legislature on any of the courts expressly recognized in that instrument, such powers are, by force and effect of the constitution itself, permanently and finally lodged in such courts or the judges thereof and may not be transferred, by subsequent legislation, to a different court or the judges constituting the same.
1. Much of the strength of the appellant’s argument, on the first proposition stated, is but a repetition of what was unsuccessfully urged upon the Supreme Court in Gottschall v. Campbell, 234 Pa. 347. It is true that, owing to the unusual manner in which the question was raised in that case, it was not necessary for the Supreme Court to determine the exact nature or extent of the jurisdiction which had been conferred upon the new court created by the Act of May 5,1911, P. L. 198. The real question raised by that record was answered when it was determined that
2. The act of 1911 not only conferred upon the new court jurisdiction of what may be called, for the sake of brevity, desertion cases, but declared that such jurisdiction should be exclusive in that court. The result of this legislation would be, it is argued, to take away from the court of quarter sessions of Allegheny county some constitutional power theretofore lodged in it and the statute, to this extent at least, would be in contravention of the s,econd clause of sec. 26, art. Y. We quote it: “And the general assembly is hereby prohibited from creating other courts to exercise the powers vested by this Constitution in the judges of the courts of common pleas and orphans’ courts.” A brief consideration of the question along somewhat broad lines will indicate the reasons for our conclusion on the question now immediately before us.
Article V of the constitution deals with the judicial branch of our government. It contains twenty-seven
We have quoted the clause which prohibits the general assembly “from creating other courts to exercise the powers vested by this constitution in the judges of the courts of common pleas and orphans’ courts.” What is the nature of the powers thus referred to as being vested by the constitution in the judges of the courts named? We have seen the declaration in the first section of the article that the judicial power of the commonwealth shall be vested in, inter alia, courts of common pleas and courts of quarter sessions of the peace. The legislature may not therefore deny to these courts their proper share in the judicial power of the state. Section nine provides that “judges of the courts of common pleas learned in the law shall be judges of the courts of oyer and terminer, quarter sessions of the peace,” etc. The legislature may not say otherwise. Section ten affirms the right, in the judges of the common pleas, to issue writs of certiorari to magistrates and inferior courts not of record, and this right the legislature must respect. These sections, and one or two more that might be quoted, clearly indicate the in
In discussing how far a legislative act might interfere with the exercise of powers theretofore vested in the Supreme Court, it was said, many years ago, by Chief Justice Tilghman: “It is contended that the constitution secures to this court every power 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.” This language was quoted with approval by Mr. Justice Sharswood in Commonwealth v. Green, 58 Pa. 226. That distinguished judge then goes on to say: “The legislature-could vest any portion of the jurisdiction of the orphans’ court in a single judge of another court;
In Commonwealth v. Hipple, 69 Pa. 9, Mr. Justice Agnew said: “The constitution having neither defined nor limited the jurisdictions of the courts named therein, or of those to be afterwards established, the power to create new courts and new law judges carried with it the power to invest them with such jurisdictions as appear to be necessary and proper, and to part and divide the judicial powers of the state so as to adapt them to its growth and change of circumstances.”
In Morgan v. Reel, 213 Pa. 81, Chief Justice Mitchell, in considering the Act of April 18,1905, P. L. 208, authorizing the judges of separate orphans’ courts to hear and determine proceedings in equity, etc., had occasion to examine the various sections of the judiciary article as they affected the right of the legislature to alter and change from time to time the organization and jurisdiction of the several courts. He says, speaking for the court: “ Stress was laid in the argument on sec. 20 of the judiciary article that ‘the several courts of common pleas, besides the powers herein conferred, shall have and exercise, within their respective districts, subject to such changes as may be made by law, such chancery powers as are now vested by law in the several courts, &e.’ But it is not apparent how the act contravenes this section. It takes away no jurisdiction from the common pleas, nor vests any in the orphans’ court, and if it did either or both, it would be within the proviso ‘subject to such changes as may be made by law.’ ” Even in the dissenting opinion filed in that case by Mr. Justice Brown it is agreed, “It (the legislature) may modify and change the jurisdiction and powers of the court of common pleas, but it cannot change the mode of the selection of its judges.”
We have thus seen that under earlier constitutions the right of the legislature to change the organization and powers of existing courts has been fully considered and recognized. The framers of our present constitution were familiar with the landmarks that had been set up to define the only limitations upon legislative action. In rewriting the fundamental law they contented themselves with a few declarations as to the rights or powers that should unchangeably reside in designated courts or judges thereof. In respect to these and these only was the general assembly prohibited from interfering, and thus the later decisions have discovered no sufficient cause for departure from the sound reasoning of the earlier ones.
The constitution conferred no power on the court of quarter sessions-to hear and dispose of desertion cases. It set up no barrier in the way of the legislature creating a new court and conferring upon it jurisdiction to determine such cases. We must therefore hold that the county court of Allegheny county had jurisdiction to make the order appealed from.
Nor can reversible error be found in the form of the order. The appellant asserts that he is and has always been a citizen of Pennsylvania. It has not been judicially ascertained in any proper proceeding that even his wife has lost the citizenship which was formerly hers; much less that his minor children, for whose benefit the order appears to have been primarily made, ought to be de
The assignments of error are overruled and the order of the court below is affirmed.
Porter, J., dissents.
Orlady, J., dissents only as to the form of the order.
