The Cambria freeman. [volume] (Ebensburg, Pa.) 1867-1938, 1873-10-24

- NN0'N' <AyOEtSSC 0bCIyG IOIIS.-E'Ol-
lowing is the full text of the Judgment of
custer pronounced last Monday bV the Su-
preme Court, through Justice Agnev. in
Lne case OF the Commonwealth er rel vs.
hon. James Potts, President Judge of the
District Court of Cambria county:
1t Is true the case is not ruled absolute by
lhaI OF the Commonwealth VS.. George T.
Swank, decided at Harrisburg in 1872, the
defendant now not being a party vet the
ground on which his claim rests to the office
OF PRESIDENT Judge of the District Court of
Salnbrla county was fully considered. The
oplnlon then expressed was rendered neces-
Sary TO prevent litigation and uncertainty in
the administration of justice within the Dis
trlct, and cannot be treated as a mere obiter
dtcfuna, or d thing said the way.
II Is unnecessary to repeat all we said of
the unauthorized character of the Court as
organized by the act of April Is, 1869, p L.
e94: The pith of the opinion i'll this respect
Is contained III the following sentences: "It
Is evident that when, by the proviso, the
Legislature directed the Court should be or
ganized by the President and Associated
Judges of the Courts of Cambria county it
excluded all others from the office The
proVlso, 1t is true, Is not according to the
Constitution, and the Judges of the Courts
OF Cambria county cannot till the offices, but
Its effect to qualify the enactment so
that no other could fill it without further
legislation; substitute having been pro=
Tlded3 the Court, not being one of those
created by the Constitution itself, has moth
ing to stand upon except the law which
created it, and this being defective in its
vital points, it is left without any legal or
ganization."
1t is now contended that the Legislature
having created Court; and the proviso in
the seventh section, making the Judges of
Cambria county it's Judges, being uncon-
stitutional and void. the Court remained in
existence, and it's President and associates
must be chosen under the Constitution and
Inv #
is simply denial of what we had said to-
wit: that the effect of the proviso was to
qualify the section so that no other than the
Judge of Cambria cO1nty could I'LL the office.
The question is one of Interpretation merely,
and we adhere to our former opinion, not
withstang the able and earnest argument of
the counsel of Mr.. Potts. The whole law
eVlnces that it was not the intention of the
Legislature to create 4 new Court, wholly
independent of the judicial organization al
ready existing in the county of Cambria.
The purpose, though 4 very mistaken one,
was to add to the existing judicial organiza-
uon another for a portion of the county; conf
posed of the same Judges and officers, which
should occupy subordinate position.
The first six sections establish the Court
define its powers, but nowhere fix the num-
Der of Judges. declare their grade or provide
Tor IN election az any time place. The
seventh IS the first section to declare the or
ganization of the Court and determine who
and how many Judges there shall be, and it
declares they shall be the President and AS
sociates of the Courts of Cambria county.
The fact that this declaration is put in the
form OF a proviso is not any less declaring of
the Legislative intent, and intent in the pro-
visions making the ProtEonotary of the
Common Pleas the Clerk Of the District
Court, and requiring il to be attended 10y the
District Attorney and Sheriff. Additional
evidence of the parasitical type of the Court
is that the provision of it's Judgment shall
not be liens on real estate until transferred
To the Common PlcaS-that no real estate
shall be sold under its executors, and that
but one general lien aud extension docket
shall be kept as provided by law, to-wit:
that of the Common Pleas. All these pro-
visions are heightened in their effect by the
entire absence of any other provision for
election by organization or otherwise.
The respondent sets forth All election as
Judge Of the District Court at the general
election of the year 1871 as his title to the
office. But IT Is very evident there was no
authority for this, if our Interpretation of
the act be true-that the proVisO SO qualified
the enactment that none but the j Judges pro-
Vidcd III 1t can hold the Offices. Though the
proviSo may not be cffectuated because of its
unconstitutionality, it cannot be stricken
out in giving the Interpretation to the sec
ton. The section speaks as authority i'll its
purpose, and not in part which may be sew
cred without violence TO the Legislative pur-
pose, whereas here the parts are so depend
ant that one cannot take effect without the
,
tent. We cannot legislate by way OF substi-
tuition.
The answer of the respondent is ohiec-
! tiouahle us being argumentative TO n degree.
But the facts set forth in it covered by
the demurrer of the Commonwealth, and
can be readily separated from the argu-
uentative portions. AS these facts do not
constitute a sufficient title to the office of
President Judge of the District Court of
Cambria county, must give Judgment
against the defendant.
And now tu-wit, October 20, 1873, this
case having been duly heard and considered
by the Court it is ordered that Judgment of
custer be rendered for the Commonwealth,
and against the defendant, and it is hereby
ordered and adiudged that James Potts, the
defendant, unlawfully holds and exercises
the Office of President Judge of the District
Court of Cambria county, and he is hereby
excluded aud ousted therefrom. And it is
further adiudged that the Commonwealth
do receive her lawful costs from said James
Potts.