64 Pa. 33 | Pa. | 1871
Lead Opinion
The opinion of the court, in answer to the application, was delivered
— We have been asked by the Hon. Alexander Jordan and the Hon. Joseph Buffington, on account of their illness and inability to hold Courts of Oyer and Terminer and General Jail Delivery in the counties of Northumberland and Armstrong. The frequency of these calls and the inroads made upon our time have compelled us to examine into the foundation of the impression that a president judge cannot be called in from another district to hold a special court, which will include the Courts of Oyer and Terminer and General Jail Delivery. The doubt seems to have been first intimated in a letter of C. J. Gibson to the governor, relating to the case of the Commonwealth v. Flanagan, reported in 7 W. & S. 68. The remark was evidently casual, and had no special reference to the subject before his mind. We find it the next time in an opinion of Lowrie, C. J., in Commonwealth v. Ickhoff, 9 Casey 80, upon the power of the judges of this court to hold Courts of Oyer and Terminer. It is there but a dictum, also. The same doubt may have been intimated in another case, but in none has the point been decided. It is, therefore, open for examination. Before stating our views, it is proper to refer to the legislation relative to special courts. By the 37th, 38th, 39th, 40th, and 41st sections of the act of 14th April, 1834, Brightly’s Dig. 159, full provision is made for holding special Courts of Common Pleas by the substitution of the president judge of an adjoining district for the proper president, when disqualified by interest, title, or relationship, or by having been of counsel. Afterwards by an act, omitted from the text of Brightly’s Digest, passed the 4th April, 1843, §8, P. L. 133, the provisions of the 37th, 38th, 39th, '40th, and 41st sections of the act of 1834 were extended to all cases in the Orphans’ Courts, Register’s Court, Quarter Sessions, and Oyer and Terminer, in which the president or associate judges, or either of them, shall be personally interested or otherwise disqualified for the performance of judicial duty from any of the causes specified in said sections. The Act of 18th April, 1853, P. L. 573, not in Brightly’s text, extended the power to any president judge of any judicial district, though not in an adjoining district. This was followed by the Act of 22d April, 1856 (Brightly’s Dig. 160, P. L. 122), which provides that whenever a president judge shall be a party in any suit, prosecution, or proceeding, in any court over which he presides, such suit, prosecution, or proceeding shall be tried and heard before the president judge residing nearest the place of such trial, who shall be disinterested. Then came the Act of 2d April, 1860 (Brightly’s Dig. 160, P. L. 123),
It is evident, therefore, that the power to try capital and other felonies, such as are triable in the Court of Oyer and Terminer and General Jail Delivery, is not confined to the president judges of the proper district, but may be conferred upon other judges learned in the law, and upon judges of courts specially created for the trial of such causes. This brings us to the power to organize the Courts of Common Pleas, upon which the other county courts hang. The 3d section of the 5th article says, “ until otherwise established by law, the Courts of Common Pleas shall continue as at present established. Not more than five counties shall at any time be included in one judicial district organized for said courts.” The power to organize the courts differently has been considered clear. Hence, the number of judges may be changed, and associates learned in the law constituted, with the same powers as the president. The only limitations are those contained in the 5th section of the 5th article, which is in these words: “ The judges of the Court of Common Pleas in each county shall, by virtue of their offices, he justices of the Oyer and Terminer and General Jail Delivery for the trial of capital and other offenders therein; any two of the said judges, the president being one, shall be a quorum; but they shall not hold a Court of Oyer and Terminer or Jail Delivery in any county when the judges of the Supreme Court, or any of them, shall be sitting in the same county.” The purpose of this section is most material to its proper interpretation. The Constitution has not provided for the appointment or commissioning of the judges of the county courts, except the judges of the Common Pleas. The purpose of the 5th section, and also of the 7th, was to provide for those who should be judges of the other courts. Those sections were intended to accomplish this purpose by constituting the judges of the Common Pleas the judges of the other courts by virtue of their offices. Hence commissions are issued to the judges of the Court of Common Pleas alone, who thereby become judges of the other courts. Therefore the judges of the Common Pleas in each county are judges .of the Courts of Oyer and Terminer. But who the judges of the Common Pleas in the particular county shall be, and who the particular president judge shall be, who must be of the quorum, will depend on the organization of the Court of Common Pleas by the legislature. The constitution does not say they shall be the judges for the county, but the judges in the county. The president judge, who is elected for a district, is not, except in a general sense, a judge for the particu
Our conclusion, therefore, is that, in the case of sickness and other disability contemplated by the acts of legislation already referred to, the president judge of the proper district has power to call in the president judge of another district to hold the regular term of his courts in any county in his district. The president judge so called in, when sitting, has jurisdiction and authority to hear and try all causes pending at that term in any of the courts, civil or criminal, including capital and other felonies in the Courts of Oyer and Terminer and General Jail Be-
This conclusion has the concurrence of all the members of this Bench, including Justice Read, who is now sitting at Nisi-Prius.
The applications of Judges Jordan and Buffington are, therefore, refused: and the prothonotary is ordered so to notify them, and to certify to each a copy of this opinion.
Concurrence Opinion
Concurring opinion of
— In the cases referred to by my brother Agnew, in the foregoing opinion, viz., The Commonwealth v. Kilpatrick, Commonwealth v. Foust, and The Commonwealth, ex rel. Attorney-General, v. Green, I resisted, to the best of my ability, the conclusions that any other than those judges indicated in the constitution could legally be of the quorum to compose and hold courts of Oyer and Terminer, namely, the judges of the Supreme Court, or some of them, or the president judge and his associates of the proper county in which the crime is triable. In this view, myself, as well as another judge of this court, have been overruled by the majority of the bench. It has been held by this court, that a judge learned in the law may, together with his associate or associates, hold such courts. I am not satisfied of error yet; but I must admit that the law is at present conclusively settled against me, and I am, as every other citizen, bound by it. I therefore concur in the above opinion, that the law as settled, will permit the holding of Oyer and Terminer courts, by president judges of other districts, in cases of inability on the part of the president judge of the district to hold them, and agree in recommending the calling in of other judges in the districts above mentioned to hold the ensuing courts of Oyer and Terminer.