Commonwealth v. Barbono

Opinion by

Rice, P. J.,

This case originated before a justice of the peace and was brought into the common pleas by certiorari. It resulted in a judgment quashing the finding and sentence of the justice, on the ground that all of the proceedings before him were without warrant of law, from which judgment the commonwealth took the present appeal.

It appears by the justice’s record that the defendant was charged with having had in his possession, concealed-,- a number of beer bottles and beer boxes, “that had been duly registered according to law, which he had refilled and was using for his own benefit” contrary to sec. 4 of the Act of June 15, 1911, P. L. 975. After hearing, he was “found guilty as charged with illegally having in his possession 172 registered beer bottles and 3 beer , boxes,” and was sentenced to pay a fine of $87.50 and costs of suit, or, in default of payment, to be committed to jail until such time as he should be released by due course of law. The record also shows that having failed to pay the fine and costs, he was committed to jail, and on the following day they were paid to the justice, whereupon, (so reads the record) “the defendant is discharged from jail and the case is settled and dismissed.”

. If the appellant’s contention that the case belongs to the class in which the court’s allowance of a certiorari is necessary be conceded, it must also be conceded under the same course of reasoning, that at the time the court overruled the commonwealth’s motion to quash, and allowed the certiorari nunc pro tunc, there was no statutory obstacle in the way of taking out a new writ by leave of court: Caughey v. Pittsburg, 12 S. & R. 53; Commonwealth v. Butler (No. 1), 39 Pa. Superior Ct. 125. Every conceivable purpose for requiring such allowance was attained, the commonwealth’s interests were not prejudiced and delay and expense were avoided by the nunc pro tunc order; therefore the court committed no technical error or abuse of discretion in making it: Commonwealth v. Butler, supra.

The act of 1911 provides that the fine or penalty shall “be recovered, as debts are by law recovered, in an action to be instituted in the name of the commonwealth.” It confers no express authority upon the justice to summarily sentence the defendant to imprisonment in jail, in default of payment, and, therefore, payment of the fine and costs, in order to obtain release from such imprisonment, ' cannot be regarded as a voluntary act which precludes him from having the lawfulness and regularity of his conviction reviewed by certiorari. Such a case is plainly distinguishable from Commonwealth v. Gipner, 118 Pa. 379, and Commonwealth v. Yocum, 37 Pa. Superior Ct. 237.

“It is still essential that a summary conviction shall contain a finding that a special act has been performed by the defendant; and that it shall describe or define it, in such a way, as to individuate it, and show that it falls within an unlawful class of acts. Without this, a judgment that the law has been violated, goes for nothing. Now this is not- merely a formal or technical rule of summary conviction, but a most essential and substantial one:” Commonwealth v. Nesbit, 34 Pa. 398; Reid v. Wood, 102 Pa. 312; Commonwealth v. Divoskein, 49 Pa. Superior Ct. 614, at page 619, and cases there cited. While the record of the justice states that the defendant was found guilty as charged, yet the immediate context individuates the part of the charge of which he was found guilty, as "illegally having in his possession 172 registered beer bottles,” etc., and it cannot be implied with certainty that he was found guilty of any other charge. Was this a penal offense?

Section 2 of the act of 1911 declares it to be unlawful for any person "to fill” with certain enumerated liquids "any bottle, box .... or other containers” marked and registered as provided in the first section; "or to sell, buy, give, take, or retain or destroy, or otherwise dispose of or traffic in the same; without the written consent of the owner or owners thereof being first obtained.” It will be observed that the mere having possession of the bottles by one not the owner is not specifically prohibited by this section. It is true the words of sec. 4 "are being unlawfully used, filled or trafficked in, retained or destroyed or possessed,” would seem at first glance to mean that the having unlawful possession is itself an offense, although a plausible argument may be made that the provision as to unlawful possession has reference particularly to the conditions under which a search warrant may issue.

But assuming, a point not decided, that the body of the act must be construed to mean that the having unlawful possession of registered bottles and. boxes is itself an offense, for which the act imposes a penalty, the conclusion is unavoidable that to that extent the act is in contravention of art. Ill, sec. 3 of the constitution. So far as material here the title of the act reads: “Providing for the registration of bottles, boxes, .... or other containers; and forbidding the refilling of, or dealing or trafficking in, such registered bottles, boxes, .... or other containers, by persons other than the owners thereof, without the written consent of the owner, and imposing a penalty therefor,” etc. No one reading that title would be put on inquiry into the body of the act to ascertain whether the mere having the bottles in unlawful possession was made a penal offense. On the contrary, the express enumeration and designation in the title of the forbidden acts for which a penalty was imposed, was well calculated to avert inquiry into the body of the bill to ascertain whether other penal offenses were created. While the title of an act need not be a complete index to its contents, a misleading title is neither in letter nor in spirit a compliance with the constitutional mandate that the subject of the bill must be clearly expressed in the title. Such misleading titles have always been condemned in all the decisions from Dorsey’s Appeal, 72 Pa. 192, down to Provident Life and Trust Co. v. Hammond, 230 Pa. 407, and many acts or parts of acts have been declared unconstitutional for that cause.

• In either view of the act of 1911 that has been above suggested, the court was right in concluding that the conviction of the defendant was without warrant of law.

The assignments of error are overruled and the judgment is affirmed.