Mauch Chunk v. Nescopeck , 21 Pa. 46 ( 1853 )

The opinion of the Court was delivered by

Woodward, J. —

Notwithstanding the 44th section of the Act of 13th June, 1836, relating to the support and employment of the poor, makes the decision of the Quarter Sessions on appeal in pauper cases final and conclusive, yet it is settled that certiorari will lie to remove the proceedings, in such cases, into this Court. It is a jurisdiction that was exercised under our poor laws prior to the Act of 1836, notwithstanding similar restrictive clauses, and has been constantly exercised since that enactment. In the case of The Overseers of Derry v. The Overseers of Brown, 1 Harris 389, it was ruled, that proceedings in pauper cases may be removed into this Court by certiorari, to correct any error in the process, proceedings, judgments, and decrees of the Quarter Sessions that may appear of record; but not to examine into the merits of the controversy upon facts. This, we apprehend, is giving the appropriate effect to the restrictive words of the 44th section of the Act of 1836. They were not intended to exclude the jurisdiction of this Court as a court of review, but only to exclude a re-trial of the merits. Certiorari is a writ of common right, to be taken away not by implication, but only by express words. Statutory restrictions, similar to that of the 44th section, have been held not to take away the remedy by certiorari: Rex v. Morely, 2 Burr. 1040; Rex v. Jukes, 8 Term R. 544.

A certiorari to the Quarter Sessions after final judgment or order, is equivalent to a writ of error to the Common Pleas, and the reason that it does not bring up the evidence like a writ of error, is because no statute has allowed bills of exception in the Quarter Sessions. The record in both cases is removed — in one with the evidence added by virtue of an Act of Assembly — in the other without the evidence, because the law has provided no mode for placing it on the record.

But suppose the judge recites the evidence in his opinion, does that make it part of the record ? In England the Sessions state the case in questions of parochial settlement, and removal of paupers, and send it up to King’s Bench in answer to the certiorari. But this practice has never prevailed with us. We have no mode of verifying evidence except by bills of exception ; and as this is not used in the Quarter Sessions, to allow the judge to send up whatever his discretion, taste, or caprice might dictate, would increase the proverbial uncertainties of the law, and involve us in an abortive attempt to administer justice to parties without the assurance that we had their real case before us. Nor does the judge help the matter by putting the facts into his opinion; for his opinion is no part of the record. And what is to certify us that he has introduced all the facts in evidence; that the evidence was all competent and properly admitted, and that he did not exclude evidence that ought to have been admitted? A record that is not subject to the scrutiny of a bill of exceptions can never import verity on subjects like these. “ Granting a case,” by the Justices in England, is not matter of duty but of discretion; though when they have stated it, mandamus lies to compel them to send it up: Chitty’s Prac. vol. 2, 381.

If we were disposed to follow this analogy, and entertain jurisdiction of such cases as the Sessions should be pleased to state, the prohibitory clause of the 44th section would be in our way; for that declares, that the decision of the Quarter Sessions on appeals shall be final and conclusive. And if these words, as we hold, exclude a re-trial of the merits, it matters not how accurately the judge states the case, we cannot pass upon it as an appellate tribunal without violating a positive statute. In a word, our common law jurisdiction, though not taken away, is abridged by express legislation, and nothing but legislation equally express can remove the restriction.

Nor will appeal lie; for this exists only where it is given by statute, as in proceedings in the Orphans’ Court and final decrees in equity. Instead of being given by the Act of 1836, appeal, which is in the nature of a new trial, is expressly denied. Except, therefore, as a Court of Error for the correction of errors of record, we have no jurisdiction in questions of settlement and removal under our poor laws; and the decisions of the Quarter Sessions as to the merits of such cases, are “ final and conclusive.”

Finding no errors in this record, the proceedings of the Quarter Sessions are affirmed.