In re Quay

Opinion by

Mr. Chief Justice Sterrett,

This rule “ to show cause why a writ of certiorari should not be granted to bring into this Court certain indictments, and the proceedings connected therewith, now pending in the court of the quarter sessions of the peace for the county of Philadelphia to November sessions, 1898, Nos. 328, 329, 330, 331 and 332,” with stay of all proceedings in said court was granted by Justices Green and Williams, in vacation, on December 9,1898, returnable before the Court in banc on Saturday, January 7, the sixth day of the present term.

On December 19, 1898, the district attorney’s answer to the petition and rule was filed; and on January 5 following, the petitioners’ replication was filed. On the return day of the rule, the parties appeared by counsel and all the questions alleged to be involved were fully and ably argued.

Our jurisdiction to grant the relief prayed for by the petitioners is challenged by one of the reasons assigned by the district attorney in support of his motion to quash the petition and all proceedings thereunder. That question has been so often considered and decided adversely to the commonwealth’s contention that it is unnecessary to consume time in its discussion. We have repeatedly held that when a proper case for the exercise of the supervisory power invoked by these petitioners is presented, it is still our duty to grant relief by sending the record to the proper court of another county for trial or detailing one of our justices to preside at the trial, as the circum.stances of each meritorious case may appear to require.

If the writer is not mistaken, the first time, since the present constitution was adopted, that our jurisdiction was questioned was in Commonwealth v. Rockafeller, Warden et al., argued here in the early part of January, 1880, No. 145, miscellaneous docket, No. 1, of this Court. That, like this, was a rule to show cause why the record of the indictment pending in the court of quarter sessions of Clarion county, charging the defendants with conspiring to unlawfully obstruct and injure the prosecutor and others in the prosecution of their business as producers and transporters of oil, etc. In his answer to the rule the district attorney denied the jurisdiction of this Court, either to send the case to another county for trial, or to otherwise interfere with the case before trial in the court below. The questions involved were ably and elaborately argued, but in February, 1880, before any decision was announced, the matters in controversy were settled, and, on application of both parties, leave was granted to withdraw the petition on which the rule was granted and discontinue the proceedings.

The same question again arose in Commonwealth v. Balph, 111 Pa. 365, and after careful consideration it was decided adversely to the commonwealth’s contention. That decision has been reaffirmed in Com. v. Delamater et al., 145 Pa. 210, and Commonwealth v. Smith, 185 Pa. 553. It is unnecessary to here consider the ground upon which the supervisory power in question rests. It is fully discussed and firmly established in the cases above cited.

As to the effect claimed by the learned counsel for the commonwealth for the act of March 18, 1875, what was said by our Brother Mitchell in the case last cited, at page 566, is a full and complete answer. As was said in Com. v. Balph, and Same v. Delamater, supra, the power referred to should be exercised with extreme caution and only in a clear case. It must also be exercised in aid of the administration of justice, not to defeat it or needlessly embarrass it. The record of our eourt shows that these principles have never been lost sight of, and it is to be hoped they never will.

We cannot assent to petitioners’ contention that it is our duty in this case to review the action of the court below in overruling the demurrers to four of the indictments and refusing to quash the other. We cannot do so without deliberately usurping jurisdiction which we do not possess, and which, in case the right of appeal hereafter exists, is expressly and exclusively vested in the Superior Court by the 7th section of the Superior Court Act of June 24, 1895, P. L. 215, which declares: “ The said court shall have no original jurisdiction, except that it may issue writs of habeas corpus, .but it shall have exclusive and final jurisdiction of all appeals which are now allowed to the Supreme Court in the following cases : “ (a) All proceedings of any kind in the court of quarter sessions of the peace or before any judge thereof, except eases involving the right to a public office.”

The orders overruling the demurrers and refusing to quash are merely interlocutory, and no right of appeal therefrom, to any court, lies until after conviction and sentence. In case of acquittal there will be no necessity for an appeal. Com. v. Ketner, 92 Pa. 872, and kindred cases relied on by the petitioners have no application to this case. That was a habeas corpus granted on the petitioners’ averment that he was illegally restrained of his liberty by illegal imprisonment; and the certiorari was merely ancillary to the habeas corpus to bring up the commitment or cause of detention so that the court hearing the habeas corpus could determine whether he was legally deprived of his liberty or not. That, however, is not this case. As was said in Com. v. Green, 185 Pa. 646, “ an essential prerequisite to the granting of any such special writ of certiorari is a meritorious and well grounded petition for a habeas corpus. If that is wanting, the certiorari should be refused and the petition therefor dismissed.” We are clearly of the opinion that we have no authority whatever in this proceeding to review the action of the court below on the demurrers and motion to quash, and we therefore express no opinion in relation thereto.

The only other contention of the petitioners that requires notice is that they cannot have a fair and impartial trial in the court of quarter sessions of the peace of Philadelphia county where said indictments are still pending on issues of fact raised by their pleas of “not guilty.” We cannot assent to this proposition. On the contrary, we are satisfied that the petitioners can and will have a fair and impartial trial in that court before a competent and unprejudiced judge and a fair and impartial jury. If we thought otherwise, we would not hesitate a moment to send the indictments to another jurisdiction for trial. The learned, judges who by virtue of their commissions as judges of the four separate common pleas courts of this county are .judges of the courts of oyer and terminer and quarter sessions of the peace, etc., are twelve in number, and sit in said courts in pursuance of previous assignment under the constitutional provision, by which, for example, a judge of common pleas, No. 1, and a judge of common pleas, No. 4 (without designating either of them by name), will be assigned to hold the criminal courts during the next March sessions, and a judge of common pleas, No. 2, and a judge of common pleas, No. 3, will be assigned to hold said courts during next April sessions, and so on throughout the year. The judges of the respective courts from which these assignments are made arrange among themselves as to which of them will go into the criminal courts; and in case of sickness or necessary absence one of the other judges of the court of common pleas from which the assignments are made for that session may take the place of the sick or absent judge, etc. Under this arrangement, the judges who held the criminal courts in November last will probably not be required to sit therein for several months thereafter. Of the twelve judges, who thus in turns hold the criminal courts only two are subjects of complaint in the petition for the rule. One of these resigned his commission and thus severed his connection with common pleas, No. 3, and all the other courts, before the petitioners filed their demurrers and motion to quash. As to what he is alleged to have done while he held his commission it is difficult to say what, if any, effect it may have in preventing or even tending to prevent the petitioners from having a fair and impartial trial before either of the other judges now in commission. The only apparent objections to the other learned judge who rightly took the place of his colleague when the latter resigned, arc that he did not dispose of the demurrers and motion to quash in the manner that petitioners claim he should have done, and that he has a son who is a member of the bar and holds a position in the district attorney’s office. These objections were uncalled for, and require no comment further than to say that, in his opinion overruling the demurrers and denying the motion to quash, he clearly and fearlessly stated his reasons for so doing, and we see no reason whatever to question his'integrity of purpose; and he is too well known and too highly respected in this community and elsewhere to require any vindication at our hands. When the 12th of December was agreed upon as the time for trial of the indictments it was well understood that other judges (one from common pleas, No. 4, and one from common pleas, No. 1) would hold the December sessions of the criminal courts, and that months would probably elapse before it would again come the turn of the learned president of common pleas, No. B, to serve in said courts. When the petition was presented and rule to show cause, with stay of proceedings, was granted on December 9, 1898, a speedy trial was in prospect on the following Monday before one of the learned judges then holding the criminal courts, against neither of whom was there then or since a breath of complaint; and we have no reason to doubt that fair and impartial juries could then and can now be impaneled for the trial of the several indictments.

Without further reference to other features of the case, our conclusion is that there appears to be no sufficient reason to justify the issuance of a certiorari. The rule to show cause is therefore discharged and the petition is dismissed at the costs of the petitioners.