Commonwealth v. Antone

Opinion by

Beaver, J.,

This appeal raises the question of the necessity of securing a special allowance from the court of common pleas for a writ of certiorari to a justice of the peace or alderman in a summary conviction for a violation of the Sunday laws.

Little can be profitably added to what has been said by Judge Audenried in his opinion, quashing the writ from the judgment of the magistrate.

The title of the Act of April 26, 1855, P. L. 304, is very specific. It is entitled, “ A further supplement to an act to amend and consolidate, with its supplements, an act for the recovery of debts and demands not exceeding one hundred dollars, before a justice of the peace, and for the election of constables and for other purposes, approved the 20th of March, one thousand eight hundred and ten.’’ The act of March 20, 1810, to which it is a further supplement, is found in 5 Sm. L. 161, and relates exclusively to civil actions. We cannot, by judicial interpretation, extend either of these acts and they are, therefore, to be excluded in our consideration of the question involved and we are left, as is shown in the opinion of Judge Audenried, to the law as it stood prior to the enactment of ^these statutes.

The question as to whether or not an action for a penalty is a civil action is fully considered in Com. v. Betts, 76 Pa. 465, in which Judge Agnew, delivering the opinion, says: “We are, therefore, of opinion that an action such as this in the name of the commonwealth to recover a penalty for a statutory offense is not a civil action such as is meant in the 22d and 24th sections of the act 1810. It may be so in form but in its true nature and effect it is a proceeding for a criminal offense, the supervision of which the essential interests of the public require to belong to this court.”

The necessity for a special allowance for a writ of certiorari has been uniformly held in the courts of common pleas of Philadelphia, so far as we can gather from the reports, and this has been recognized in a rule which was promulgated June 3,1902, in an amendment to rule 5, section 5, which provides that “ no motion for the allowance of certiorari from a summary conviction before a magistrate will be entertained, unless it- appears that forty-eight hours’ notice thereof has been given to the district attorney in writing.” It is true that this rule would not apply to this case, but it is simply a recognition of the practice of the courts of common pleas in Philadelphia and, even if it were not clear to us, as it is from the consideration of the statutes and the authorities arising under them, that a special allowance was necessary in a case of this kind, we would be loath to reverse except in a case clearly requiring it.

Judgment affirmed.