33 Pa. 338 | Pa. | 1858
Lead Opinion
The opinion of the court was delivered by
John Galbraith is the president judge of the sixth judicial district, consisting of the counties of Erie, Warren, and Crawford, duly elected and commissioned.
On the 17th of April 1856 (Purd. 1165), the legislature authorized the people of that judicial district to elect an “ additional judge” with the same qualifications and powers, for the same tenure, and subject to the same duties as the president judge.
Judge Derrickson was elected and commissioned as the “ additional judge” under this act; and before him and the associate judges of Erie county, the defendant was tried for and convicted of murder in the first degree, and sentenced to be hanged.
On removal of the record into this court, the first error assigned is, that the court before which the prisoner was tried was not a constitutional and legal court of Oyer and Terminer, nor was the judge who presided therein legally authorized to do so.
The guiltiest man has a right to insist on a trial before a constitutional tribunal and by due course of law, and if this prisoner have not been so tried, it is our imperative duty to set aside the judgment that has been rendered against him. Let us then look carefully into the authorities and powers of the tribunal whose record is before us.
The crime charged could be tried only in a Court of Oyer and Terminer. The 5th section of the 5th article of the Constitution of Pennsylvania, declares that the judges of the Courts of Common Pleas in each county shall, by virtue of their offices, be justices of Oyer and Terminer, any two of whom, the president being one, shall be a quorum. The judges of the Courts of Common Pleas, as said courts now exist throughout the state, consist of a president and two associates — the president elected for a judicial district, which may consist of one or more counties, not exceeding five, and two associates elected for each county.
But the constitution gives the legislature, in the words “ until
The Oyer and Terminer derives its existence and powers from the Courts of Common Pleas. Judges are never commissioned for the Oyer and Terminer. The constitution, indeed, expressly forbids it. “ No commission of Oyer and Terminer or jail delivery shall be issued,” says the 15th section of the bill of rights. Itself a derivative court, and the court from which it is derived placed by the constitution under the care of the legislature, the Oyer and Terminer must necessarily be subject to legislative modification. The only constitutional provision in behalf of the Oyer and Terminer is, that two judges, the president being one, shall be essential to a quorum. The object of this was to secure both to the state and the accused the benefit of the law learning of the bench in the trial of high crimes, and as the president was more likely to possess that learning than the associates (though the constitution enjoined it as to neither president nor associates), he was required to be present at such trials. But when, in process of time, the legislature required all the judges of the Common Pleas of Philadelphia to be learned in the law, it is self-evident that the spirit and intent of the constitution were answered by the presence of any two of them in the Oyer and Terminer, and accordingly, the two cases above cited were not more agreeable to the exigencies of public justice than to the meaning of the constitution. And on the principle of those cases, we should have no difficulty in saying, that the legislature might authorize the “additional judge” of the 6th district, he being necessarily what is called a law judge, to hold, in connection with one or more of the associates, a lawful Court of Oyer and Terminer. The constitution commits the Common Pleas to legislative reorganization, and it requires the Oyer and Terminer to be held by such judges as for the time being are judges of the Common Pleas, demanding only that the president, or, according to the received interpretation, some judge learned in the law, shall be of the quorum. When Judge Derrickson holds courts under the legislation relating to the 6th district, he is not only a judge learned in the law, but the president for the time being of the court, and so, though called an “additional judge,” is substantially a constituent element of the Oyer and Terminer, in compliance with both the letter and spirit of the constitution.
But how far does that legislation confer Oyer and Terminer
The 2d section of the Act of 1856 begins by fixing the time of Judge Derrickson’s courts in Erie county for the second Mondays of March, June, September, and December, to continue three weeks; thus distinguishing them from “the regular terms,” which are fixed by the Act of 1834 for the first Mondays of February, May, August, and November, to continue for one week.
After providing for the courts in Crawford and Warren counties, it proceeds in these words: — “ And in case of sickness or absence of the president judge, at any regular term as fixed by law, the said additional judge shall preside in the Courts of Quarter Sessions and other courts, during such sickness or absence; and when requested by the president judge, shall be required to hold the regular term of the Court of Quarter Sessions and other courts now provided by law, to be held in the counties of Erie and Warren, not to exceed two .terms of one week each, in each of said counties, for each and every year.”
By a supplement to this act, passed 28th April 185T, “the court authorized by the aforesaid act, when in session (the said law judge and one or both associates being present), shall have and exercise jurisdiction in all matters pertaining to the Orphans’ Court, Courts of Quarter Sessions and of Oyer and Terminer.”
And by another supplement, passed 24th March 1858, it is enacted, that the Act of 1856 “ shall not be construed so as to create independent terms of court, but the several weeks of court in said act provided to be held, shall be construed to be parts of the quarterly terms immediately preceding them; and the terms of court in said district shall be the courts commencing and held on the weeks in which by law the regular terms of the Quarter Sessions are to be held; and writs shall not be made returnable to the several weeks of the courts created by the act aforesaid; and the word ‘ term,’ in the second section of the said act, wherever it shall or does occur, shall be taken and held to mean court.”
This last supplement seems intended principally to regulate the return days of writs, and the only part of it which affects the question of construction before us is that which substitutes the word court for the word term in the original act. This change, whilst it disfigures the original enactment, does not materially affect the construction.
The substance of all this legislation, so far as it touches the jurisdiction of Judge Derrickson, in Erie county, may be stated thus:—
1st. It authorizes him to hold the Court of Common Pleas, four times a year, commencing on the days designated, which may be called his special or peculiar courts.
2d. It authorizes him to hold the regular terms of the Quarter*342 Sessions and other courts, authorized by the Act of 1834, on the happening of either of the three following contingencies: — 1. The sickness of the president judge; 2. His absence; or, 3. His request.
3d. That when in session with one or more of the associates at one of these regular terms, he is to have full jurisdiction in all matters pertaining to the Orphans’ Court, Court of Quarter Sessions, and Oyer and Terminer.
This construction limits Judge Derrickson’s criminal jurisdiction to his sessions at a regular term, and of course denies him a criminal jurisdiction at his special or peculiar courts.
If it be thought that this is too narrow a construction of the Act of 1857, it can make no difference in this case, for the record shows that the defendant was tried, not at one of Judge Derrick-son’s special courts, but at the regular term of February 1859. Whatever may be his Oyer and Terminer powers at his own appropriate periods of holding court (for myself and Judge Thompson I can say, we think he has none), he manifestly and by common consent- had no power to try this prisoner at the time he did, unless Judge Galbraith requested it, or was sick or absent. On one or the other of these conditions, his powers were expressly suspended by the Act of Assembly.
But the record is silent in reference to any request, sickness, or absence of Judge Galbraith. The district attorney alleges, in his printed statement, that at the February Term of 1859 Judge Galbraith was absent from Erie, and that by his request Judge Derrickson presided, but this statement is no part of the record, and will perish with the paper-book. The record which is to remain as the memorial of this trial, shows that Judge Derrickson presided, but does not show why he presided.
Are we then to intend and presume that one or the other of the statutory contingencies had happened ? Surely not, in a capital case. The course of this court has been, in all time, to require the record to exhibit everything necessary to justify the state in taking the life of a citizen. In Dunn v. The Commonwealth, 6 Barr 388, and Hamilton v. The Commonwealth, 4 Harris 133, judgments of death were reversed because the records, though exhibiting formal sentences, did not show affirmatively that the prisoners were present when the sentences were pronounced. Every record, said the court in the first of the above cases, ought to show clearly that the prisoner was tried and sentenced, and is to. suffer according to the substantial forms of the law.
In many other cases, slighter objections than are presented here have been permitted to prevail in favor em vitse. We ought not to be expected to take life upon suppositions and guesses, or statements of counsel in respect to essential matters.
The record is fatally defective, in that it does not show affirmatively that the contingency had happened in which Judge Derrickson was authorized, by law, to hold a Court of Oyer and Terminer, at that time and place. The ordinary judicial tribunals of Erie county are in full existence under the constitution and laws of the state, and even from them we should require a record of every fact necessary to justify the extremest judgment of the law. Much more should such a record be required from a legislative court, called into being by a temporary emergency, and clothed with only a qualified jurisdiction in criminal matters.
In Clark’s Case, 5 Casey 137, we refused to listen to a plea to the jurisdiction of the judge, because the record exhibited a regular proceeding before a de facto judge, and we held that his title to the office he was exercising could not be tried in that suit. But here the objection is not to the judge’s title to his office, but to the time and manner of his exercising it. So far as the record shows, he did not try the defendant according to law. If it had shown this, we would not have gone out of the record to find objections to the judge’s title — but not showing a compliance, either formal or substantial, with clearly prescribed rules of law, the judgment must, on this ground, be reversed.
We conceive that there is no substance in the other error assigned. The circumstances that disqualify or excuse citizens from serving as jurors are so numerous, that it seldom, perhaps never, happens, that a panel is drawn without some incompetent name upon it. The non-a'ttendance of such a juror is of no consequence, especially after verdict. See Act of Assembly of 21st February 1814, and Jewell’s Case, 10 Harris 94.
The judgment is reversed, and a venire facias de novo• is" awarded.
Concurrence Opinion
The following concurring opinion was delivered by
I fully concur in the reasons, as far as they go, for the reversal of this judgment, contained in the opinion of my
After the most careful attention and reflection on the point, I am firmly of the opinion, that any legislative act, conferring the power on any judge or judges to hold Courts of Oyer and Terminer and general jail delivery, without the president judge of the Common Pleas being of the quorum, is unconstitutional and void —that such court cannot be legally constituted, while such an officer exists in the district, and without his presence, as a member of it, I know a contrary determination by the court was pro
The judges of the Supreme Court are, by virtue of their offices, justices of Oyer and Terminer and general jail delivery. This is by express constitutional provision. So by sect. 5th of Art. Y. of the Constitution, it is provided, “That the judges of the Courts of Common Pleas, in each county, shall, by virtue of their offices, be justices of Oyer and Terminer, for the trial of capital and other offences therein; any two of the said judges, the president being one, shall be a quorum.” This is a plain, clear, and unambiguous declaration as to what offices should be attached the powers of justices of Oyer and Terminer, and a clear mandate as to who shall compose and hold that court. Learned and lay men, professional and unprofessional, can understand it but in one way, that when the judges of the Supreme Court do not exercise this function of their offices, in holding the courts of Oyer and Terminer, the judges of the Common Pleas shall, and the president shall be one of the quorum.
The constitution is not to receive a technical construction, like a common law instrument or a statute, unless when technical words are used: Commonwealth v. Clark, 7 W. & S. 127. “ It is made,” said Gibson, C. J., “ not particularly for the inspection of lawyers, but for the inspection of the million, that they may read, and discern in it their rights and duties.” “ Words, therefore, which do not, in themselves, denote that they are used in a technical sense, are to have their plain, popular, obvious, and natural meaning:” 6 W. & S. 114; Story on the Constitution, § 210. Read in the light of this settled rule, can any one doubt but that a “president judge” of the Common Pleas must be one of the ■ quorum in the Oyer and Terminer?
It surely cannot be said, that the provision is merely directory, and may be dispensed with by the legislature. The words themselves do not indicate this. They are as clearly mandatory as any words in the constitution. Besides this, there were reasons in history that undoubtedly suggested the provision. The constitution of 1790, framed but seven years after complete independence was established, contained the same provision, and it was transcribed from that and inserted in the constitution of 1838.
Notwithstanding this constitutional provision, and notwithstanding the fact that the Court of Common Pleas existed in the sixth district, with its president and associate judges, the judicial officers designated by the constitution, and by it invested with the functions of justices of Oyer and Terminer, the legislature, by Act of 8th April 1857, provided that the “ additional judge” — not a president judge, or an associate judge, in the terms of the constitution — should, while holding courts which he might hold, “ have and exercise jurisdiction in all matters pertaining to the Orphans’ Court, Courts of Quarter Sessions, and of Oyer and Terminer:” Pamph. Laws 1857, p. 334. This power was not incident to his commission ; for if it were, the act was unnecessary. If it was not incident to the commission, then the act was a nullity, for it was a special commission of Oyer and Terminer, directed to the “ additional judge,” by the legislature, to exercise the power of a judge in Oyer and Terminer in particular counties, on special occasions. This was in direct conflict, in my judgment, with the prohibition that “no commission of Oyer and Terminer shall issue.”
That Judge Derrickson was not a president judge of the
Again, if the legislature could authorize the additional judge to hold Courts of Oyer and Terminer, while the office of president judge of the Common Pleas exists, they could require him to do so; and they could require him to hold all the terms of that court either generally or for a limited period, and thus oust the constitutional judge of his jurisdiction under the constitutional provision. In case of conflict of jurisdiction between the judges thus commissioned, which would prevail, the legislative judge, or the constitutional judge ? The one is the creature of the fundamental law — the legislation of the people. The other, the creature of the servants of the people, bound not to transcend their will as expressed in the constitution. Can any one doubt for a moment, which must be held the better right? A “better right,” to the exercise of official functions, argues no right whatever against it. Thus then it must follow, that the constitutional judge — the president judge of the Common Pleas, deriving his powers from that instrument, would, in right and title, be superior to the judge deriving his from legislative will alone.
But it is said, that the constitution itself provides for a legislative reorganization of the Common Pleas. The words are, “ until otherwise directed by law, the Courts of Common Pleas shall continue as at present established.” What is meant by “ established,” I need not inquire. But I deny that it can be so re-established by the legislature, as to abolish the office of president judge, because a president judge is necessary to the quorum in the Oyer and Terminer. That court could not be constituted
But I have used the expressions, “constitutional judge” and “legislative judge.” I think there is that distinction between two such commissions as I am considering. In both the old and new constitution of the Commonwealth, and in the amendment of 1850 to the latter, there are but two classes of judges whose independence is complete during the tenure of their offices, viz., the judges of the Supreme Court, and the president judges of the Common Pleas. The provision of the constitution is, that “ the judges of the Supreme Court, and the presidents of the Common Pleas, shall, at stated times, receive an adequate compensation, to be fixed by law, which shall not be diminished during their continuance in office.” This extends to no other judges than those named. When the reduction of $>400 by the Act of 1843 took place, which had been an increase to that amount by the Act of 1839, it is well known that this court held in The Commonwealth v. Mann, 5 W. & S. 403, that the salaries of the president judges could not be reduced by the act; and it is equally well known that it was withheld from the class of judges known as “district judges” in the state, but was subsequently paid to most of them by special acts of the legislature. The “additional judge,” under the Act of 1856, is in the same category. The legislature could undoubtedly increase his salary, and decrease it at pleasure. His office is not, in all senses of the instrument, therefore, a constitutional office. It cannot be supposed, I think, that the framers of the constitution ever intended that the office of president judge should be abolished, and the substitute for it be liable to, or dependent on, legislative will for compensation. The constitution of 1790 made the tenure as well as salary independent. It was a life tenure, subject only to be defeated by impeachment or an address of two-thirds of both houses of the legislature. The constitution of .1838 retains the same quality of independence of the legislature during the term, which is for years. The same principle exists in both, differing only in tenure. I cannot believe that the words, “ unless otherwise directed by law, the Courts of Common Pleas shall remain as at present established,” gives the power to abolish the office of president judge, when named so often as it is in the constitution, and when protected, as I have shown it to be, beyond that of any merely legislative judge. It would be an anomaly, unprecedented, if the time should ever come, when there should be no president judges in our courts, although so often designated in the constitution. That time never
In the constitution of 1790, I have said, the office of president judge was made independent of the legislature, which is the sovereign power of the state, by a life tenure and a fixed salary. The teachings of history are manifest in this provision. The melancholy experience of the tyrannical reigns of the Charles’s and James II., of England, was fresh in history. Amongst the worst features of those times, was the venality of judges depend-ant on the crown for office as well as salary. And fresh, too, was the history of the great reform which gave, in the subsequent reigns of William III. and George I., permanency in tenure and salary to the judges. This was a great reform, but it still left the right to special commissions in the crown. Our ancestors followed the reform by the independence of the judges, and forbade the abuses of the special commission by the prohibition in the constitution. The constitution of 1838 embraced both principles —independence during the tenure, and no special commissions. But if the doctrine I contend for be not a fixed regulation of our constitution, and implicitly followed, we abandon both principles. The judge may be subject to a reduction of salary during his continuance in office, and special commissions in Oyer and Terminer may again prevail. This is demonstrably the effect of sustaining the right of dispensing with the president judges, as of the quorum, in Oyer and Terminer. This may become an evil, the extent of which cannot be imagined, and which I hope the country may never experience.
Wherever there is an enumeration or specification of powers in the constitution, these of necesssity exclude all others not specified ; “ because an affirmative grant of special powers would be absurd as well as useless, if a general authority were intended:” Story on the Const. U. S. 207. The remark holds good in our case. The specification of who shall hold the- Oyer and Terminer, was exclusive of the right to invest any other judges not enumerated.
Nor is there any existing necessity to excuse the invasion of the constitutional powers I complain of. There is no district in the state in which the president judge might not preside with ease in all the cases in the Oyer and Terminer. But if there be, let the districts be lessened, and a constitutional judge be provided.