Commonwealth v. Fisher, Appellant.
No. 69, Oct. T., 1904
SUPERIOR COURT OF
27
October 5, 1904, Argued
January 17, 1905,
Decided
OPINION: Beaver, J., January
17, 1905:
In Mansfield's case, 22 Pa. Super. 224, we
construed and held unconstitutional the Act of May 21, 1901, P. L. 279, for the reasons therein set forth. It was entitled an
act "To regulate the treatment and control of dependent, neglected and
delinquent children, under the age of sixteen years; providing for the
establishment of juvenile courts; regulating the practice before such courts;
providing for the appointment of probation officers; prohibiting the commitment
to jail or police station of a child under fourteen years of age; providing for
the appointment, compensation and duties of agents of juvenile reformatories;
imposing certain duties upon the Board of Public Charities of this state;
regulating the incorporation of associations for the care of dependent,
neglected or delinquent children; prohibiting foreign associations from placing
children in homes in this state for adoption or under indenture, except under
certain conditions; providing for the appointment of a board of visitors, and
repealing acts and parts of acts inconsistent with the provisions of this
act."
The present case arises under the provisions of the Act of April 23, 1903, P.
L. 274, entitled an act "Defining the powers of the several courts of
quarter sessions of the peace, within this commonwealth, with reference to the
care, treatment and control of dependent, neglected, incorrigible and
delinquent children, under the age of sixteen years, and providing for the
means in which such power may be exercised."
A mere comparison of these two several acts by their titles shows a very marked
and clear distinction between them. The title of the former act was held by us
to be defective in several particulars which have been carefully avoided in the
act now under consideration. The former act provides expressly for the establishment of juvenile
courts. The present act simply defines the powers of the courts of quarter
sessions already in existence. In the preparation of the act of 1903, there is
an evident intention and desire to avoid all of the features of the previous
act which were held in the
As was said by the present chief justice in Sugar Notch Borough, 192 Pa. 349.
"It must not be lost sight of that the attitude of
courts is not one of hostility to acts whose constitutionality is attacked. On
the contrary, all the presumptions are in their favor, and courts are not to be
astute in finding or sustaining objections." On the other hand, however
commendable the object of the act may be, however free from doubt or difficulty
as to its main provisions, if it offend in only one particular the provisions
of the constitution, no matter what our view of the propriety of such
constitutional provision may be, it must be held to be guilty of a violation of
the whole. Let us, therefore, inquire, briefly, upon what grounds the
constitutionality of the act of 1903 is attacked.
The assignments of error are very general and the grounds upon which the
unconstitutionality of the act is alleged are not specifically set forth. We
gather, however, from the argument in the main what they are and will consider
them seriatim.
1. Is the title sufficient? It is brief, clear and
concise but it is also comprehensive. It simply defines the powers of the
courts of quarter sessions with reference to the care, treatment and control of
dependent, neglected, incorrigible and delinquent children under the age of
sixteen years and provides for the manner in which such power may be exercised.
We can find nothing in the act which is not clearly embraced in the title. True
it is not an index as to every step to be observed by the court of quarter
sessions in the exercise of the powers conferred by the act, but that is not
necessary, as we have many times said. It is in striking contrast, so far as
the title is concerned, with the act of 1901, which is repealed by the one
under consideration. We think the title clearly sufficient: Com. v. Lloyd, 2 Pa. Super. 6;
Rose v. Beaver County, 204 Pa.
372.
2. Does the act contain more than one subject? This is alleged by the appellant
in his argument and paragraphs 2 and 3 of section 2 and sections 10 and 11 are
quoted as illustrations. The second section of the act
simply provides in what manner the children referred to in the title may be
brought within the jurisdiction of the court of quarter sessions for the purposes
of the act. It is, of course, therefore, entirely germane to the main purpose
of the act, which would be practically useless without its several provisions.
Anyone interested in the question would undoubtedly have his attention drawn to
the provisions of the act by its comprehensive title. He would have found, as
he would naturally expect to find, that some preliminary steps were to be
taken, in order to bring the persons provided for in the act within the
jurisdiction of the court of quarter sessions. This can be done, under the
provisions of the sections referred to, by a magistrate or by the district
attorney, but surely these steps are not only germane but essential to the
integrity and practical utility of the act.
The act also provides how the court shall dispose of the
children brought within its jurisdiction, but that is surely one of the means
by which its power is to be exercised, so as to put into practical operation
the provisions in section 10, which are alleged to be outside the title and to
constitute a foreign and independent subject. In section 11 it provides that "Nothing herein contained shall be in derogation of the
powers of the courts of quarter sessions and oyer and
terminer to try upon an indictment, a delinquent
child who, in due course may be brought to trial." This is clearly within
the title "providing for the means in which such power may be exercised."
It provides negatively for what the court shall not do, as is provided in other
portions of the law positively what it shall do, but it is as important to know
what the court of quarter sessions shall not do, under the provisions of the
law, as what it shall do. It tends to clearness and definiteness, but is not in
any sense a new subject or one without the scope of the title.
3. The first assignment of error sets forth "That the court before which
the defendant appeared is an unconstitutional body and without
jurisdiction." This begs the question. We infer, however, from the
argument, that the appellant intended to say that the act created a court
unknown to the constitution, although, as is plainly apparent, no new court is
created and the ancient court of quarter sessions, which is older than all the
constitutions of
The court of quarter
sessions has for many years exercised jurisdiction over the settlement of
paupers, over the relation of a man to his wife and children in desertion
cases, in surety of the peace cases, in the granting of liquor licenses and in
very many of the ways in which the public welfare is involved, where there is
neither indictment nor trial by jury. It might as well be
said that the court of quarter sessions is not a court of quarter sessions,
because it keeps a separate road docket, or for convenience a separate docket
for desertion cases, or appoints days in which it will hear a certain class of
cases or, as it is said in popular parlance, will hold a "license
court." In the latter class of cases, where there is more than one court
of common pleas within a county, it is usual for the courts themselves to
designate the judges who shall hold what is known as the license court. It has
never been claimed, so far as we know -- certainly not successfully claimed --
that such designation was in any sense unconstitutional or that, because of the
designation, a separate court was created. It is no more so in the case under
consideration than in any of the cases spoken of above.
4. It is further claimed, as set forth in the second and third assignments of
error, that the court erred in not allowing the defendant his constitutional
right of trial by jury.
It appears from the record that the defendant was charged with larceny, that
three several indictments therefor had been duly
found but that the district attorney, being of the opinion that the public
welfare did not demand a trial by jury and that the defendant's age and
condition were such that it would be better for him and also better for the
public that he should be treated leniently, instead of being tried and
sentenced to a public institution as a condemned criminal, for punishment, and,
if possible, for reformation, certified the case to the court of quarter
sessions, under the provisions of the act now under consideration. Much is said
in this case about the right of trial by jury and the sacredness of it is not
to be minimized. In order, however, to understand the relation which this
question bears to this and similar cases, it may be well to consider the object
of this legislation. It is to save, not to punish; it is to rescue, not to
imprison; it is to subject to wise care, treatment and control rather than to
incarcerate in penitentiaries and jails; it is to strengthen the better
instincts and to check the tendencies which are evil; it aims, in the absence
of proper parental care, or guardianship, to throw around a child, just
starting in an evil course, the strong arm of the parens
patriae.
After hearing, under the humane provisions of this act, the court committed the
defendant to the house of refuge, after which the district attorney called up
the three indictments, in two of which Fisher was the only
defendant, and in the other of which he was jointly indicted with one, Thomas
White, in all of which he took verdicts of "Not guilty; county to pay the
costs," in order that no record of a criminal act might remain open
against the defendant. This, on its face, appears to be an act of mercy and
there is nothing on the record which shows in any way that it is not what it seems.
It is expressly provided in section 11 that, "Nothing herein contained
shall be in derogation of the powers of the courts of quarter sessions and of oyer and terminer to try, upon an
indictment, any delinquent child who, in due course, may be brought to trial."
If testimony was taken before the judge at the hearing, it has not been
furnished us by the appellant or, if demand for trial by jury was made in the
court below, it does not appear upon the record. If trial by jury had been
desired in this particular case, it was only necessary for the defendant, his
father or attorney or any other person on his behalf, to have made formal
demand therefor and had it made matter of record and,
if denied, of exception, in order to raise a concrete question for
adjudication. We, however, have nothing of that kind here. In view of the
provisions of the act, we can see no difficulty whatever in a defendant, or
anyone for him who may be interested in securing his constitutional right of
trial by jury, having such a trial. Whenever evidence of the denial of such a
right is brought to the attention of an appellate court, it will probably not
be necessary to declare this act unconstitutional, in order to remedy the evil,
but simply to return the case for a regular trial by jury, if it should appear
that such a trial was denied.
It is probable that in the administration of this law the courts will, by rule,
through the appointment of an attorney, or otherwise, make known to and
available for those who come within the scope of its provisions the
constitutional right of trial by jury to which every defendant is entitled.
5. The act is further objected to on the ground that it is class legislation.
That was one of the serious objections to the act of 1901, and it was declared
unconstitutional among other reasons on that ground, but in that act the
distinction was made between children who were inmates of a state institution
or any training school for boys or industrial school for girls or some
institution incorporated under the laws of this state and children who were not
such inmates. The present act, however, relates to all
children of the same class under a certain age. The general principles laid
down in Wheeler v. Philadelphia, 77 Pa.
338, in which it is stated that a statute
relating to persons or things as a class is a general law, one relating to
particular persons or things of a class is special, applies with equal force here
as in the case in which that principle was declared. This subject has been so
exhaustively treated in many cases that it is not necessary to enlarge upon it
here. We think that in this particular the constitutional difficulty in regard
to the previous act has been obviated.
We have considered this case, in all of its aspects, at considerable length,
without in any way trying the assignments of error by technical rules, but the
case is one of great importance, not only for those who are likely to be
brought within the scope of its provisions but is of equal importance to the
commonwealth which is vitally interested in rescuing and saving its children,
wherever rescue, care and a substitute for parental control are required, to
the end that they may, in the enjoyment of sober, industrious and happy lives,
fill the full measure of good citizenship.
HN9The act under consideration, as we view it, offends against
none of the provisions of the constitution. It avoids the difficulties in this
respect of the act of 1901, which were so forcibly pointed out by our Brother
Porter in the
The assignments of error are all overruled.
Judgment affirmed.
Rice, P. J., and Porter, J., dissented.