Commonwealth ex rel. Allegheny County v. Davison

Opinion by Rice, P. J., This is an appeal from the judgment of the common pleas reversing on certiorari the judgment of an alderman, ex officio justice of the peace, for the penalty prescribed by section 3 of the Act of May 21, 1885, P. L. 22. That the provision of section 22'of the Act of March 20, 1810, 5 Sm. L. 172, relative to the finality of the judgment of the common pleas on certiorari, does not apply to a proceeding in the name of the commonwealth [135] for the recovery of a penalty for what the section defines as an “ offense,” and the succeeding section makes an indictable misdemeanor, is well settled. The distinction between such an action and one brought in the name of a borough to recover a penalty for the violation of an ordinance, not a public offense, was pointed out in Mahanoy City v. Wadlinger, 142 Pa. 308, followed by us in Colwyn v. Tarbottom, 1 Pa. Superior Ct. 179. As to a proceeding like the present, Chief Justice Agnew, after a most thorough and discriminating examination of the authorities, said: “It may be so” (a civil action) “in form, but in its true nature and effect, it is a proceeding for a criminal of-fence, the supervision of which the essential interests of the public require to belong to this court: ” Com. v. Betts, 76 Pa. 465. But if the 22d section of the act of 1810 does not apply in the particular above considered, neither does it control in the determination of what are the essentials of a valid record in a proceeding for a criminal offense. The judgment entered against the defendant, leaving out the parts not material here, was in the form following: “ And now, September 14, 1897, the defendant, C. Davison, is adjudged guilty of violating section 3 of the act of ... . 21st May, A. D. 1895, .... and judgment is publicly given by default .... in the penalty of one hundred dollars,” etc. As is shown in the opinion of the court below, and frankly conceded by counsel for the appellant, this part of the record, standing alone, would be insufficient to sustain the judgment, because it fails to set forth which of the several offenses, specified in the section referred to, the defendant was adjudged guilty of. But it is to be borne in mind the action was begun by a summons under a statute which provides that the penalty shall be recoverable as debts of like amount are recoverable. All the technical rules governing summary convictions do not apply with the same strictness to such a proceeding. Hence it has been held that, although the record does not set forth, in so many words, that the defendant was convipted of the offense, a finding to that effect is implied in giving judgment for the penalty: Garman v. Gamble, 10 W. 382. By an extension of this principle, and not to be hypercritical, we, perhaps, would be justified in saying that, by reasonable intendment, the particular offense of which the alderman adjudged the [136] defendant guilty was that charged in the information, upon which, the record states, the action was based. This was (quoting the language of the record proper as well as of the information), “ that the said defendant .... had in his possession with intent to sell, and did expose for sale and actually sold as an article of food, one pound of an article manufactured out of an oleaginous substance and of a compound of the same other than that produced from unadulterated milk or cream from the same, the said article not being an original unbroken package transported from another state of the United States or from a foreign country at the time it was so had and sold as aforesaid contrary to the form,” etc. Whether a sworn information was necessary or not is immaterial. The relator saw fit to put his complaint in writing, and the alderman entered the substance of it on his docket as the basis of the action. It was “ the substratum of his jurisdiction: ” Com. v. Gelbert, 170 Pa. 426. But here arises the objection, that not every article of food manufactured out of an oleaginous substance other than milk or cream is, to quote the language of the act, “ designed to take the place of butter or cheese .... or of any imitation or adulterated butter or cheese,” and, unless this latter fact be alleged and proved, an essential ingredient of the offense prohibited by the act of 1885 is lacking. It is quite as essential as the fact that the thing was sold as an article of food, the omission of which from a case stated admitting a sale of oleomargarine was held to be fatal to the action: Com. v. Schollenberger, 153 Pa. 625. If, therefore, no more was proved than the record alleges as the charge or cause of action, there would be no certainty that the defendant had committed any offense. It is to be noticed that the judgment was by default; the defendant waived nothing by appearing and defending the action as was done in Com. v. Burkhart, 23 Pa. 521, nor did he put the essential facts on the record, by a formal plea in confession and avoidance, as was done in Johnston v. Com., 22 Pa. 102. He has a right to stand on the record made up against him, and to insist that no jurisdictional essential which the record fails to show shall be taken against him by presumption, or be supplied by the evidence given on the trial. The purpose of putting the substance of the latter upon the docket in proceedings of this nature is to support the original charge, not to extend or sup [137] ply what is wanting in it: Com. v. Gelbert, 170 Pa. 426. It is unnecessary, therefore, to discuss the sufficiency of the evidence. Whilst, as has been said, some of the technical formalities of a summary conviction have been dispensed with, and, indeed, never were insisted on with the same strictness where the penalty is recoverable as debts of like amount are recoverable, yet the essential principles governing such proceedings, necessary for the protection of the citizen, have never been relaxed, and many of them are as applicable to an action, which in its true nature and effect is a proceeding for the punishment of a criminal offense, although in form an action of debt, as to a summary conviction. It is still essential, that the record shall contain a finding, set forth in express terms, or to be implied with certainty, that a special act has been performed by the defendant, and that it shall describe or define it, in such a way, as to individuate it, and show that it falls within an unlawful class of acts. Without this, a judgment that the law has been violated goes for nothing. “Now, this is not merely a formal or technical rule of summary convictions, but a most essential and substantial one: ” Com. v. Nesbit, 34 Pa. 398; Reid v. Wood, 102 Pa. 312. The court was right in sustaining the sixth and seventh exceptions to the alderman’s record; therefore it is unnecessary for us to discuss the others. The judgment is affirmed.