31 Pa. Super. 441 | Pa. Super. Ct. | 1906
Opinion by
The defendant was, in a summary proceeding before a justice of the peace, tried and, .on October 24, 1905, convicted and fined for maintaining and operating an unlawful device for the taking of fish. He, on October 28, 1905, entered into a recognizance for his appearance at the next court of quarter sessions of Monroe county, and on October 31, 1905, the transcript of the record of the justice of the peace was filed in the office of the clerk of said court. The defendant, on November 11, 1905, presented his petition to the court of quarter sessions of Monroe county setting forth his summary conviction before the justice on October 24, that he had on October 28, 1905, entered into his recognizance with surety, before the justice of the peace, for his appearance at the next court of quarter sessions, and that his appeal from the sentence was perfected under the provisions of the Act of April 22, 1905, P. L. 284, which he was then advised and believed was the proper procedure; that since the taking of the said appeal the petitioner was advised that there was serious doubt as to the constitutionality of the aforesaid act, and he therefore prayed the court to allow him, for the above reason, to take an appeal in the said case and file the same in the said court of quarter sessions, with the same force and effect as if the said appeal had been taken within five days from the date of said conviction, as provided by the Act of April 17,1876, P. L. 29. This petition did not allege any circumstance to indicate oppression, corruption or disregard,of law on the part of the magistrate, nor that there was any irregularity in the proceedings, nor did it aver that- the defendant was not guilty; it did not, in other words, attempt to show cause why the appeal should be allowed. The court granted a rule to show cause why the appeal should not be allowed nunc pro tunc, which rule remains undisposed of. The commonwealth, on January 20, 1906, presented a petition averring the regularity of the proceedings before the justice, and moved the court to strike off the appeal upon the ground that the Act of April 22,1905, P. L. 284, is unconstitutional, and that the appeal of .the defendant had not been allowed by the court of quarter sessions, for cause shown, as required by article Y, section 14, of the constitution of the state of Pennsylvania. The court granted a rule on the defendant to show
The opinion filed by the learned judge of the court below, on discharging the rule to strike off the appeal, puts this action upon the ground that the act of 1905 is constitutional, and that under its provisions the defendant in any case of summary conviction is now entitled to an appeal as a matter of right, without allowance by the court of quarter sessions. The reasons which he gives in support of this conclusion may thus be briefly stated in his own language; “The provision of the constitution for an appeal in cases of summary conviction as above stated, had for its purpose the protection of the right under and subject to special regulations, and cannot in any sense be considered a restriction or prohibition on the legislature from enlarging such right. . . . The intention of the act was to give to every defendant convicted in an action of summary conviction, the right of trial in the court of quarter sessions of the peace, as of course, and not simply when allowed by the appellate court. It had this power.” The opinion of the learned judge as to the intention and effect of the act of assembly is -certainly correct, if that act is valid. We cannot, however, assent to his view of the purpose, force and effect of the constitutional provision.
A constitution is a plan or frame of government, which lays down certain fundamental principles, according to which the several departments it calls into existence are to govern the people; all auxiliary rules which are necessary to give effect to these principles must of necessity come from the legislature: Commonwealth v. Maxwell, 27 Pa. 444. The constitution defines the powers intrusted to and the duties imposed upon the several branches of the state government. The provision of the constitution now in question, article V, section 14, is in these words : “ In all cases of summary conviction in this commonwealth, or of judgment in suit for a penalty before a magistrate, or court not of record, either party may appeal to such court of record as may be prescribed by law, upon allowance of the appellate court or judge thereof, upon cause shown.” This section is embodied in the article which refers to the judicial power and the organization of the courts of the common
The act of 1905 offends, also, against article III, section 3, of the constitution: “No bill except general appropriation bills shall be passed, containing more than one subject, which shall be clearly expressed in its title.” The 'title of the act is “ An act to amend an act, entitled ‘An act relating'to appeals in cases of summary conviction,’ approved April 17, 1876, providing for the entering of security on appeal on summary conviction.” The act of 1876 had been designed to carry into effect the provisions of the constitution; it designated the court of quarter sessions as that to which appeals should be taken in summary conviction, “ upon allowance of the said court of quarter sessions, or any judge thereof, upon cause shown” that act strictly complied with the provisions of the constitution, and made the appeal subject to allowance by the appellate court. The act of 1905 provided : “ That in all cases of summary conviction in this commonwealth, before a magistrate or
The appellee has moved to quash this appeal upon the ground that the order appealed from is interlocutory, and that from it no appeal lies to this court. If the transcript had simply been filed in the court below, showing an appeal taken by the defendant before the justice, and -the commonwealth, without anything else upon the record, had moved to strike it off, we would have been inclined to overrule the motion to quash and reverse the order of the court below; for upon such a record nothing further could have lawfully been done in the court below, the appeal not having been allowed by the court. The record in the case shows, however, that the defendant several months before the commonwealth moved to strike off this appeal had
The appeal is quashed at the costs of the appellant. .