The Cambria freeman. [volume] (Ebensburg, Pa.) 1867-1938, 1872-07-20

the opinion OF The Supreme Court in the rt
oil ono "nrranto case of J. K Hte Prothono
tary OF Ctmbria county. against George T.
S"ank, Clerk of the District Court OF Cambria
county. 1t will be seen that tire Supreme
Court, III very emphatic trIms declares that
The District Court is wholly urc"nsrituti nal
and therefore without any legal authority.
ms decision of course tears up the Court bv
the r.ots, and unu! something ese is done. if
1t can be legally done the District Court of
Cambria county is thing of the past.
In the Stt~cme Cor,rt of Pennsylvania in and for
Tie Eu"ttiH District
Commonly ealth, er reIdtione.l No 3S3, January
J. X. Hite Term, 1872.
George r swank. Quo warranto.
OPINION OF THE COURT BY AGNEw. JUDGE.
FILED july Sd, 49,
According to the practice recognized hy this
Court in Murphy VS. Farmers Bank, Harris,
writ. Subject to this motion, he has also filed
ms rs, answer h TO the writ; and the parties have
Leen heard on the questions involved in the an
ters in one opinion.
IN Vlew OF the power of amendment, the OBJ
9ectlon That the subject docs not set forth the
facts with sufficient legal precision, is not tena
OF an aVerment of the title of the Relator to
exercise the duties and receive the fees of the
district Court of Cambria county. But the Re-
lator has set forth the source of his title, 10y
statng his election and commission as Pro
Cambria county and Clerk of the Court of Quar-
ter Sessions He ought then to have averred
District Court of Cambria county, conferred
upon him, as such Prothonotary and Clerk, the
appertainin2 to the Clerk of the District Court.
But having SET forth the foundation of his I'll
ment; which We now permit to he made. The
case of the Commonwealth VS.. The Commercial
liank, casey, $50, is direct authority on this
point. The objection that the writ can issue
only at the suggestion of the Attorney General,
and not or private RelatOr is not sustained.
This would he true according to the Common
wealth vs.: CIuley, p. f. Smith, $40, and the
YI..I laf.NN
no private interest in himself. But, prind ia
Gle, he has an interest to oust the defendant, in
the apparent title, conferred upon him 10y the
act I" perform the duties and receive the fees
OF the Office Whether he or any one else has
truly valid title to tke Office OF Clerk of the
Dictricu Court Is not question upon this mo-
ton TO quash, there being u prind tacie title in
The objection that the writ should have been
ISSUED out OF tGc Court OF Common Pleas is not
Ger not il is immaterial- this court has jurs-
diction in all cases and the Common Pleas hav-
ing only concurrent jurisdiction in the act of
18th June, 1885, We may in our discretion, and
sometimes do, decline to ente II AN nltgi!'dt ju-
rlSdIcuon, and leave it TO be exercised by the
Common Pleas in the cases over which their
be proper 10 decline it in this cilse.
The custer of the Relator from the Office of
Clerk o. the District Court of Cambria county
by former proceeding, is answered 10y his sub
scquent election as PrOthOnOtary and Clerk of
the Courts of Cambria county. II may event
ually appear that neither he nor the Respondent
has valid title to that office; but on the mo-
ton To quaSh his pTiRd fGcic title is sufficient
to maintain the suggestion. The motion to
quash is refused, and this brings to consider
the merits of the answer.
That the Respondent has no title to the office
of Clerk of the District Court of Cambria coun-
ty, and is exercising the functions Of such al
legged Office uulawfuly are entirely clear to our
minds In point of fact the act of 1859 does
create the office OF Clerk of the District Court,
as an independent Office or post. IT merely di-
rects that the duties appertaininx to the clerk
snip, OF the District Court shall be performed
by the ProthonOtary of the Court of Common
Pleas and Clerk of the Court or Quarter Sessions
| of Cambria county. This is its whole effect.
| But were the ofiiceu an Independent and existing
| one, under the terms of the law, no provision
contcnded that this defect in tie law is supplied
by the 81 section of the 9th article of the Con
! stItuion, directing that Prothonotaries aud
! Clerks OF the several courts Recorders of
! and places of the election a Representatives,
! be elected by the qualified electors in each
county. or the district over which the juriSdic-
! tiOn OF the court extends, and shall he commits
/ stoned by the Governor. They shall hold their
office for three years, if they shall so long be-
| have themselves we'll, and until their success
! sors be duly qualified. These provisions are
fundamental, anc undoubtedIy govern al! pro-
| thohotailGs ana clerks OF courts whose officers
| are established by the Legislature under the
last clause of the lst section of the 9Th article.
But they do not supply the place OF the leg
| iSlltion II cess Try t. provide for the election
! of a person TO fill the particular office thus cs
which hc shall he elected. the notice to the eIcc-
tors 10 elect, thc persons 10 hoid me election
| and make the return, and the time place. and
manner of declaring the result and certifying
wanting in any provision for the election of
| the officer, and the time when his term shall
| H.
! Sheriff might have deferred his proclamation
| until 1872, or the electors Il majority might
| fore that the Respondent has not been lawfully
! elected TO any office created by law, and that
| he Is unlawfully exercising the functions of
CIeIk of the District Court ana receiving fees,
and must be oustcd therefrum.
! In order to prevent the disastrous consequent
| ccs resulting from the acts of an unauthorized
tribunal it is proper we should add that we see
no authority to hold this Court, Ivy any Judges
having lawful commissions; and that without
! further legislation of the most careful and
! into effect Some of its provisions, blending
| Il e action of the District Court and the Court
! of Common Pleas, are Objectionable, but we do
not refer to such. The Fundamental error of
| the legislation is in the organization of the
Court itself, which Is not only unconstitutional,
! as decided in the case of the Commonwealth vs..
! ConyngEam, - p. +. Smith 76, hut is wanting
! in any provision to correct the error. Had the
| prov!so- that the Court should he composed of
| the Judges Of the Common Pleas. not been in
serted IN rhe eth section To qualify the enact
mcnt, it might have been argued that there
was an inchoate organization of the Court by
! dent ana two Assoca ties, to be supplied in some
other tnnnner There might then be some
the vaSan Hut Xcn mil It'll An elGGtion 70 NJ
! lzed by the fact that no provision has been made
| for an election under the constitutional amend
ment OF 1870. The appointment would fall in
December, or we should have the anomaly of
| the office of a judge of Court of record, ex-
lstng by appointment indefinitely, and without
any tenure IN the incumbent known to the
| prOvSo the legislature directed that the Court
! should be organi zed by the President and As
/ soclate Judges OF the tOurtS of Cambria cOun-
| ~, ii excluded all others from the office. The
proviso, 1t is true, is not according to the con-
| sutution, and t.; ind:es of the Courts of Cam
bria county caI,fI,It fi the office, but its effect
was to qualify the enactment that no Others
could hll it without further legislation. no sub
sutute having been provided. The Court not
being one of those created by the constitution
itself, has nothing to stand upon except he law
which created it, and this being defective in It's
vital point, il is left without any legal opgani-
zatlou Nothing short of supplementary egIs-
lation can cure this defect, 1t is 20 be regretted
that the Legislature had not acted the sug-
geatiOn of the Governor and repealed the act of
1869.
1t is proper we should now say before closing,
that In case like this requiring the immediate
interposition of the Court, where no independ-
ent Oftlce exists, and provision for filling il
by election has been made, and especially in
view OF the uuorganiZed condition of the Court
ltsclt, we will not go beyond the pT1nd fGcie
right OF the RclatOr to make the suggestion,
but Will proceed to give Judgment against the
Respondent at once. and stop there We shall
not give Judgment for the RGlatOr except Cor