Franklin's Appeal

Opinion by

Mr. Justice Mitchell,

This proceeding is so irregular, and, happily for our judicial history, so entirely unprecedented, that it seems to require a recital of the -main facts. The judge, upon his own motion, without notice and without hearing any of the parties to be affected, on examination of the complaints and indictments in certain cases at the previous session of the court, and upon private inquiries, the nature and extent of which and the parties to whom addressed are known only to himself, made what he termed an adjudication of the office costs on said cases, and filed it subject to exception in writing by the respective officers concerned and a hearing upon the same.” Grosser violation of all judicial principles, short of actual dishonesty, cannot be conceived. No citizen could be deprived of the most trifling right, nor the meanest criminal be condemned, by an adjudication first and a hearing afterwards, yet in this case the money rights of sworn public officers, and the reputation of a member of an honorable profession are sought to be taken away by such method.

Even if the result reached were correct, the method could not be tolerated. Conclusions based merely on the formal averments of complaints or indictments, without any knowledge of the evidence, or the real facts, could hardly help frequently going astray, and an examination of the only evideñce in this case, taken after the “ adjudication,” shows that the conclusions were as unjust as the proceeding was irregular. It is not desirable to incumber this opinion with a detailed review, but a few instances of error in fact may be referred to as illustrations. In item 3, Com. v. Archey, and Com. v. Good, the adjudication says: “ The two offences were committed by the two defendants together; .... but two indictments should have been found. Therefore costs can be.allowed . . . on but two indictments.” The deposition of the district attorney shows that the joint commission of the offence was denied by the prisoners, was a contested point at the trial, and that “ it would have been inexpedient for the due course of public justice to venture to jointly indict the defendants.” The question of expediency was for the district attorney, not for the judge, to determine. The responsibility for a misjoinder would have been on him, and he was entitled to his own judgment on the subject. If he carelessly or corruptly abused his_ discretion, there was plain and ample remedy by due .course of law, but no allegation of such abuse could be maintained in face of the fac^ that the joint commission of the offence was a material and contested point at the trial.

In item 4, Com. v. McDonnel, the adjudication says: “ These cases are evidently duplicates; . . . . costs can be allowed only on one complaint and indictment.” The deposition of the district attorney shows that the cases had not been tried, so that even under regular proceedings the court had not yet acquired any jurisdiction over the matter of costs, but in fact the two indictments were for separate offences, committed at different places and at different times, though on the same day. No more striking demonstration could be made of the danger of basing a conclusion on the formal averments of the bill of indictment. Of the view expressed by .the learned judge in his opinion dismissing the exceptions, that the mere statement of the proposition is sufficient to show that more than one indictment would be oppression, it is enough to say that we do not concur in it, but the decision of that question in the first instance is neither for him nor for us, but for the district attorney, and the time for showing an abuse of his discretion, if any existed, had not yet arrived. As to the further view that the maximum punishment of assault and battery is sufficient to punish a large number of acts committed by the same person against the same prosecutor,' the lawmaking power has determined otherwise, and it is not for a judge who has not yet heard the case to say what indictment or what punishment would be sufficient.

In items 5, 6, and 7, Com. v. Yeager, Com. v. Kemmerly and Com. v. Foulk, the adjudication says: “ These cases were entered on separate complaints by one and the same prosecutor, for the same offences. . . . The complaints on which the indictments were drawn should have been included in but one complaint and but one indictment found. This is an example of apparent multiplication of cases which the court will not allojV) and therefore costs will be allowed on but one complaint and one indictment.” It appears that no indictments were ever drawn in these cases, they having been settled before the grand jury met. This was a singularly unfortunate selection by the learned .judge, of an example, for it was not a conclusion wrong because founded on insufficient or misleading evidence, but gross carelessness in finding facts from evidence before him which plainly disproved their existence. That errors should occur is incident to humanity, but carelessness in a judge is never excusable, and least of all when he is stepping out of the regular course of judicial proceedings, even with -the best intentions, to affect the rights of others. If, as is implied in the opinion, costs were taxed to the district attorney as if for indictments which were never drawn, that was a serious error which demanded correction, but the district attorney was entitled to a hearing before-condemnation.

In items 10,11, 12, 23, 24, 29 and 40, similar carelessness is shown in making orders disallowing costs on all but one complaint and one indictment in each ease; and in a like order in item 19 it is said: “ The grand jury ignored all four of the complaints sent up, and themselves incorporated all the defendants in one indictment.” In each of these instances the district attorney deposes that he consolidated the complaints, and drew a single indictment, and that the grand jury had nothing to do with the matter. It would thus appear that the district attorney himself did exactly what the learned judge condemns him for not doing. It is a very inadequate explanation or reparation to the officer unjustly condemned, to say, as the learned judge does in his opinion, that he “ used the word indictment inadvertently with the word complaint ” and that “ the court in using the phrase 1 costs can only be allowed on one complaint and one indictment ’ should have left out the word indictment. These were very slight clerical mistakes, but not of such a character as to affect the question of costs of the district attorney’s office.” An inadvertency which includes the district attorney in a condemnation meant only for committing magistrates requires ampler apology than this, and to call a mistake slight and clerical because it does not affect the officer’s pocket while it does seriously impugn his professional character shows a lack of judicial appreciation which exemplifies the dangers where a judge goes outside of his proper province.

In regard to item 19, the learned judge in his opinion says, “We have no reason to change our view in this matter in our reinvestigation. We find that the information we then received directly was correct,” and proceeds to state what the grand jury did. What this information was, from whom obtained, whether under'Sanction of an oath or not, and what means of knowledge the informant had, are matters known only to the judge who assumed the functions of prosecutor, jury and court, and perhaps of witness also, if the-reference to what the face of the indictment shows, means to express his personal opinion from inspection of the paper. To set aside the sworn deposition of the district attorney on such information as this, is inquisitorial not judicial action.

These examples will suffice. The opinion of the learned •judge in dismissing the exceptions is occupied chiefly by discussion which is wide of the mark. The matter which he undertook to examine, even in this irregular way, was not whether the offences charged could as matter of law he joined in single indictments, but whether, in the particular cases, they were properly separated.

It is not intended in this opinion to say that a judge may not, of his own motion, initiate an investigation for the correction of evils in the administration of justice. He is the„responsible head of his court, and if he has reason to suspect wrongs or irregularities it is not only his right but his imperative duty to see to their correction. But he should proceed in an orderly and judicial manner, such as calling the attention of the grand jury to the matter, directing the district attorney to investigate, or, if the latter is interested, appointing a special prosecutor pro hac vice, or a commissioner with defined powers of inquiry, or conducting an open investigation himself at the proper time when a particular case is judicially before him. The legal remedies are ample and effective, but none of them permits ajudgment before a hearing. A judge never -serves either law or justice by proceeding lawlessly, or forgetting that a court is U tribunal where justice is judicially administered. Actual justice may be done and sometimes effectively by the summary action of a vigilance committee or a mob of lynchers, but it is not done judicially, and the dangers are such as no civilized community can afford to tolerate. Deliberate and orderly proceedings, including, as a foremost requisite, -a full and impartial hearing before judgment, are the inviolable safeguards of public justice as well as of individual liberty.

With the best intentions, no doubt, and under the belief that the situation required extraordinary action, the learned judge nevertheless adopted a method which cannot be sanctioned. The whole proceeding'was non-judicial, void in form and in substance, and it is ordered to be struck off the record.