Reid v. Wood

102 Pa. 312 | Pa. | 1883

Mr. Justice Paxson

delivered the opinion of the court, March 12th 1883.

We are asked to quash this writ of certiorari upon the ground that the suit below was brought in the name of the Commonwealth while the certiorari was directed to the chief burgess of the borough of West Chester. An examination of the record shows that the suit below was commenced in the name of the Commonwealth and for this reason the chief burgess might, perhaps, have been justified in declining to send up the record. But he has sent it, and it requires but an amendment of the writ, to make it conform to the burgess:s record. This, we think, may be done, as it is the merest technicality: Specht v. The Commonwealth, 12 Harris 103, was an entirely different case. There the certiorari was against the Commonwealth as in a criminal proceeding, while the record sent up was an action of debt in the name of Henry Krib, who sued as well for the Commonwealth as for himself v. Valentine Specht. This court held that ki a certiorari against the Commonwealth does not give us jurisdiction to reverse a judgment of Henry Krib against Valentine Specht.” That was a criminal proceeding below, although improperly brought 'as a qui tam action, while in the present case the action was for a. penalty for a violation of a borough ordinance. We are of opinion that the mistake in this case is amendable, and as we are unable to see how any one can' be injured thereby we will treat the writ as amended.

The plaintiff in error was fined by the chief burgess for projecting his building in the borough of West Chester beyond the building line of the street. It appears from the borough ordnance under which this summary conviction was had that the chief burgess may impose the penalty prescribed by said ordnance either “ upon view or hearing had before him.”

While many of the technical formalities of summary convictions have long since been dispensed with, there are some essentials which still exist and must appear upon the record. It is still necessary that a summary conviction shall contain a finding that a specificact has been performed by the defendant: and that it shall describe or define it in such a way as to individuate it, and show that it falls within an unlawful class of acts : Commonwealth v. Nesbit, 10 Casey 398.

The record here does not show that the defendants below had done anything prohibited by law or ordinance. It does show that a complaint was made before the chief burgess setting forth that they had refused to remove a portion of this building. The only evidence before the burgess was that of Officer Jones, who testified to the service of the notices and tC that the building had not been removed.” Whereupon, the record proceeds to state “ the said chief burgess inflicts the penalty of twenty dollars and costs,” &c. After making out a commitment of the defendants below to the county jail for their refusal to pay the fine, the burgess adds to his record : “ The foregoing sentence was also imposed after my own observations of the premises in controversy.”

There was no finding by the burgess either upon his own view or upon testimony that defendants below had violated any ordinance of the borough, or that their building projected over the building line of the street. It is true, he says, he entered judgment after an observation of the premises, but he neglects to tell us what he observed. For anything that appears he may have ascertained that the house was within the proper building line. He does not say in his record, as he should have done, if the fact were so, that upon view or upon evidence he found that the said building was within the line of the street in violation of the borough ordinance.

The merits of the case are not before us upon a certiorari. For the reasons given, however, the judgment must be reversed.

Judgment reversed.