Commonwealth v. McCann , 174 Pa. 19 ( 1896 )

Opinion by

Mr. Justice Williams,

This was an action brought before a justice of the peace under the act of May 21, 1885, to recover a penalty for the unlawful .sale of oleomargarine. It was so proceeded in that judgment was regularly rendered against the defendent for the statutory penalty of $100. He then appealed to the court of common pleas of Allegheny county, and filed a transcript of the proceedings had before the justice in the office of the prothonotary of that court. The appeal so taken and filed was subsequently •struck off for the reason that it had not been allowed, for cause shown, by either the said court or a judge thereof. This action •of the court of common pleas is what is now complained of. Prior to the adoption of the present constitution this appeal from •a judgment for a penalty would have been regular. The question had been so decided in several cases, among the earliest of which is Commonwealth v. Bennett, 16 S. & B. 243. But there were many cases in which the judgment of the justice whether upon a summary conviction or in an action for a penalty was final. No review was possible except upon certiorari, and then only of the regularity of the proceeding. This want of uniformity in the manner of enforcing penal statutes and ordinances attracted the attention of the constitutional convention and led to the adoption of the provision found in article 5, section 14. It is as follows: “ In all cases of summary conviction in this commonwealth or of judgment in suit fox 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 a judge thereof upon cause shown.” The act of 1876 which was passed to carry this provision into effect prescribed the court of quarter sessions as the court of record into, which all appeals from summary convictions should be taken, after an allowance; and the court of common pleas as the court of record into which all appeals from the judgment of a magistrate or court not of record in a suit for a penalty should be taken “ upon allowance of said court or any judge thereof upon cause shown.” Then follows a proviso declaring that “ all appeals from summary conviction, and judgment for penalties shall be upon such terms as to payment of costs and entering bail as the court or judge allowing the appeal shall direct.” The language employed in this statute, like that of the constitutional provision to which it relates, is general. It embraces all appeals from judgments for penalties or of summary conviction rendered by magistrates or courts not of record in this commonwealth; and it provides a wise and uniform system applicable to all cases in the same manner, to take the place of the unequal and illogical system that had previously prevailed. There is no authority to be found in either the constitutional or the statutory provisions, to which we have referred for restricting their operation to such cases of conviction or judgment as were, prior to their adoption, without any right of appeal whatever. Such a construction would require us to hold that the words in sec. 14 of art. 5 of the constitution, “ In all cases of summary conviction or of judgment in suit for a penalty before a magistrate or court not of record,” did not mean what they expressly and clearly say, but. should be read “ in such cases of summary conviction or judgment in suit for a penalty as have not heretofore been appealable to some court of record, an appeal may be hereafter taken in the manner herein provided, but this method of appeal shall not apply to any case where an appeal was permitted under the law as heretofore administered.” We do not feel at liberty to do> violence in this manner to a very plain provision of the constitution. This was said in effect in McGuire v. Shenandoah Borough, 109 Pa. 613. The 6th section of art. 1 of the Declaration of Rights, which declares that “ Trial by jury shall be as heretofore, and the right thereof remain inviolate,” is not inconsistent with the section we have been considering. Regulating the method by which the judgment of an inferior court may be brought into a superior court for trial so that a jury may be reached and their verdict upon any question of fact in dispute obtained is not a denial of trial by jury. It is on the contrary a “ casting up of the highway ” over which, in the judgment of the people as expressed in their fundamental law, suitors should go in order to reach a trial by jury in a certain class of cases.

Whatever effect the words “to be recovered as debts of like amount are by law recoverable ” had, or were entitled to have, prior to the adoption of the present constitution when there was no constitutional provision relating to the subject of appeals and no general statutory regulation applicable to summary convictions and judgments for penalties, they cannot now be allowed to override the express provisions to which we have referred. They give the form of procedure before the magistrate of the judgment and of the execution process, but they cannot give by implication what the constitution has expressly denied.

The assignments of error are overruled and the judgment affirmed.