Cutler & Hinds v. Richley

Opinion by Mr. Justice Sterrett, One of the specifications of error is the order of court setting aside the appeal from award of the “ legal arbitrator,” the other is the refusal of the court to strike off the rule of reference and set aside “ all proceedings under the same, for the reason that the act under which the rule of reference was entered is unconstitutional.” It cannot be seriously doubted that, in entering the rule and choosing the “ legal arbitrator,” the parties intended to proceed under the special act of April 6, 1870, P. L. 948, entitled “ an act relative to arbitrations in certain counties,” and the supplement thereto of March 25,1878, P. L. 396. The record, including the award of the legal arbitrator, etc., clearly shows [198] that they did. Moreover, the defendant’s motion to strike off the rule of reference and set aside all proceedings thereunder is predicated of the fact that the proceedings' were under said act. Nor can it be successfully contended that the act of 1870 was intended to operate, in the counties therein named, as part of our compulsory arbitration procedure under the act of 1836. An examination of the act, especially the sections relating to the powers and duties of the legal arbitrator, and proceedings that may be had after his award is filed, etc., shows clearly that the legislature intended to provide a special mode of procedure, in the counties named, separate and distinct from that of our compulsory arbitration law, except perhaps as to the method of choosing the legal arbitrator, service of notices, etc. It is conceded that there is nothing in the act of 1870, and its supplement, which, in express terms or by necessary implication gives a right of appeal in what is termed a legal arbitration. On the contrary, it provides other modes of procedure for the purpose of correcting errors of the legal arbitrator, etc., and finally a writ of error to this court. We think it is very clear that that act and its supplement cannot be read into the compulsory arbitration act of 1836, and thus, under the provisions of the latter, secure the right of appeal. So far therefore as any compulsory proceedings for selection of a legal arbitrator, etc., are concerned, the act of 1870, or rather the supplement thereto, would appear to be unconstitutional, in that it denies to the non-consenting party the right of appeal and trial by jury; but the 15th section of the act provides for an amicable reference, etc., as follows: “ That the parties, or their attorneys, to a suit pending or hereafter to be brought, may, by agreement in writing, amicably refer the trial and determination of the same to a legal arbitrator, and fix their own trial and place of hearing with the same force and effect and with the same incidents and rights to the parties as if the said suit had been referred by rule entered and arbitrator chosen as hereinbefore provided.” In appointing the legal arbitrator in this case the parties evidently acted under the provisions of this section. The agreement signed by their respective attorneys is as follows: “We agree upon Gen. D. B. McCreary, ■Esq., as legal arbitrator in above case and appoint May 10, [199] 1888, at 10 o’clock A. M. as the time of hearing at the office of the arbitrator in the city of Erie, Pa. Notice of time and place of hearing is hereby waived.” It must be presumed the parties knew that no right of appeal was given by the act, and therefore, by entering into the agreement, they impliedly waived any right they might otherwise have had. The 2d section of the original act provides that the party entering the rule to choose, etc., “ shall be taken and deemed to have waived his right to appeal and trial by jury; . . . . and unless the opposite party, .... shall, on or before the day fixed for choosing the arbitrators, elect by writing filed, to have a legal arbitration, it shall be a lay arbitration, as heretofore, with the right to each or either party to appeal.” The 8d section provides “ that if the party not entering the rule shall, as aforesaid, elect to have a legal arbitration, there shall be but one arbitrator, who shall have been duly admitted to practice law, etc., .... and the method of choosing, service of notices, length of rules and fixing times of hearing shall be the same as under the lay or compulsory arbitration law.” It will be observed that, under these provisions, a legal arbitrator could not be chosen without the consent of both parties,— the implied consent of the party entering the rule, and the express written consent of the other party. The only other mode of securing “ a legal arbitration,” under the original act, is by agreement, in writing, of both parties to refer, etc., under the 15th section above quoted. The sole purpose of the act was to provide a special, voluntary mode of procedure before a single arbitrator, learned in the law, without right of appeal and trial by jury. There appears to be nothing unconstitutional in this. But, as to the supplement of 1873, we think it is otherwise. That undertakes to repeal the 2d and 3d sections of the original act for the sole purpose of substituting in lieu thereof a compulsory proceeding as against the party not entering the rule and not otherwise consenting to a legal arbitration. This compulsory feature is unconstitutional, and inasmuch as there cannot be any doubt that the sole object of the repealing clause was to substitute the compulsory in lieu of the voluntary provision, we think the supplement should be declared unconstitutional. [200] It follows from what has been said that there was no error in setting aside the appeal and in refusing to strike off the rule of reference, etc. The orders of the court below are affirmed with costs to be paid by defendant. [See Spratt v. Raymond, 1 Adv. R. 816, 149 Pa.]