Ott v. Jordan

Opinion, Mr. Justice Green : We think it very clear that the proceedings in these cases were not summary convictions but actions of debt for the recovery of penalties, imposed not for the commission- of a crime but for the doing of an act otherwise lawful but prohibited by statute. The act of April 12,1859, under which the proceedings were instituted, declares that “ it shall not be lawful for any person or persons within the limits of the counties of Northampton, Dauphin and Lehigh to expose to sale and sell at auction or outcry to the highest bidder any goods, wares or merchandise not manufactured or provided by him, her or them, within the limits of the said counties of Northampton, Dauphin and Lehigh.” It will be perceived at once that the act prohibited to be done is in itself a perfectly legitimate act, in no sense criminal, and only contrary to law because this statute prohibits it to be done. It is nowhere characterized as a crime or a quasi crime in any part of the act. By the second section of the act it is provided that, “ each and every person offending against the provisions of this act shall for every such offence forfeit and pay the sum of fifty dollars to be recovered before any alderman or justice of the peace in an action of [224] debt, one half to the party who shall bring the suit, and one half to the use of the proper county.” It is manifest that the words “ offending” and “ offence ” here employed are not used in any criminal sense but in the sense of breaking or violating the prohibitory injunction of the first section. No proceeding as for a crime is authorized; no conviction, summary or otherwise, is provided for; and the only consequence that is established for doing the prohibited act is the payment or forfeiture of the sum of fifty dollars. The method of recovering the money penalty is not by a criminal sentence but by an action of debt, to be brought before an alderman or justice, one half of which goes to “ the party who shall bring the suit.” By the proviso clause to the second section an affidavit must' be filed setting forth the “ cause of action.” By the third section “ laws in force for the collection of debts shall be held to apply to the institution of suit and the recovery of the penalty under this act.” . '1 ' Thus it appears that the entire phraseology of the act, relating to the remedy for its violation, treats it as a civil remedy purely. The remedy is not a criminal complaint and conviction followed by a sentence, but an ordinary civil action of debt,- to be brought before an alderman or justice, preceded by an affidavit setting forth the cause of action. The plaintiff is not the commonwealth nor a person suing in the name of the commonwealth, but is described as “ the party who shall bring .the suit,” and the action is regulated by the “ laws in force for the collection of debts.” Every element of a criminal proceeding is carefully omitted from the law, and the only remedy provided is an ordinary civil action. These considerations dispose of the case. The decisions as to summary convictions have no application, and the assignments of error, as the learned counsel for the plaintiff in error candidly admit, raise but the single question, “ whether the rules of law which are in force in summary proceedings to recover penalties must be observed.” We think not, for the reasons we have stated and therefore The judgments are affirmed.