Spicer v. Rees

The opinion of' the court was delivered by Gibson, C. J. By the twenty-fourth section of the act of 1810, it is declared that “ no writ of certiorari by or out of the Supreme Court to any justice of the peace in any civil suit or action, shall be available to remove the proceedings had before such justice.” Is the present then a civil suit ? Whatever may have been the notions of the courts in the earlier times, the point was solemnly considered and decided in Atcheson v. Everitt, Corp. 382, where it was determined that actions strictly popular and not compensatory, are not criminal prosecutions but civil suits. The question was, whether in an action of debt on the 2 G. 2, c. 24, section 7, which gives a penalty for bribery to any one who will sue for it, the testimony of a Quaker might be received on his solemn affirmation pursuant to the 8 and 9 W. 3, which authorises such testimony, except in ‘ any criminal cause/ and the 22 G. 2 c. 30, which prohibits it in ‘ any criminal case / and it was adjudged competent, though the action was not only popular but productive of personal disabilities. In delivering the opinion of the court, Lord Mansfield remarked that penal actions had never been ranked with criminal prosecutions by elementary writers;and that such a proceeding was as much a civil action as if it were for money had and received. In this he is certainly corroborated by Wynn v. Middleton, 1 Wils. 125, in which it was held that an action for double damages as a penalty for a false return, given by the 7 and 8 W 3, c. 7, to the party aggrieved, is not a criminal prosecution but a civil action, and amendable, as such, by the 16 and 17 Car. 2, c. 8, though the 4 G. 2, c. 26, excepts [123] criminal cases from the operation of the statutes of jeofails; and the judgment was affirmed in the Exchequer Chamber. It must be admitted however, that the damages beyond mere compensation, were given to the party injured; but Lord Mansfield recognised no distinction on that head. Such is the law as settled on principle and the latest authority in England. But as standing in opposition to it, is cited the decision in Buckwalter v. The United States, 11 Serg. & Rawle 193, in which it was said generally by Mr. Justice Duncan, delivering the opinion of the court, th.at an action of debt on a penal statute, is not within the compulsory arbitration act which is applicable in its terms but to civil suit.s. The action there, however, was brought by a sovereign for an infraction of the laws of the land, and not, as here, for the infraction of the bye-law of a corporation ; and though it has beeq determined that the United States, when descending to the level of an ordinary suitor in a state court, divests herself of the prerogative of a sovereign, yet it may well be thought that her action for, a breach of the criminal laws is not a civil suit within the intent and meaning of the arbitration act, which has-in other instances been construed more restrictively than the letter would seem to require; as in Jones v. Stratton, 4 Serg. & Rawle 76, and Deal v. Deal, 7 Serg. & Rawle 201, where, it seems to have been thought that account render, though indisputably a civil action, was not originally within its purview; and in Roop v. Meek, 6 Serg. & Rawle, 345, the same thing seems to have been thought of an action on a bail bond or a recognisance in a criminal prosecution, the court having a discretionary power to stay proceedings, or to remit or moderate the penalty. In Buckwalter v. The United States, policy required that the accused should not be suffered to baffle the prosecution by arbitrating the question of criminality with his pi'osecutor; and that was in truth the ground of the decision, though Mr. Justice Duncan, as was his custom, brought to the defence of his position every technical principle and authority that could be .brought to bear upon the argument. He was perhaps inaccurate in saying that statutes of amendment do not extend to penal actions, except perhaps where the state is prosecutor. Here, however, the state is not a! party, as the plaintiff prosecutes for himself and a corporation.. It is contended however, that though the action be a civil one, the writ of certiorari may well lie from this court to the mayor who is not a-justice of the peace, and whose proceedings therefore are not within the prohibitory clause. But he is clothed with no other jurisdiction than that of an alderman who is virtually a justice, and whose proceedings can be dealt with by the courts of record only as such. The root of the matter is, that the mayor had no jurisdiction of the cause of action by the general law giving civil jurisdiction to justices and aldermen; and the legislative power of the corporation was incompetent to supply the deficiency, as was ‘determined in Barter v. The Commonwealth, 3 Penn. Rep. 260. [124] The judgment being void, there needs no reversal. However worthy of decision by the court in the last resort, it seems impossible to get at the question in the present shape. The end might perhaps be attained by an indictment in the Mayor’s Court; and though it may be inconvenient if not oppressive in practice to prosecute every breach of an ordinance in tha't way, an application to the' legislature would doubtless produce an appropriate remedy saving to the accused his constitutional right to a trial by jury on appeal. We are however to administer the law as we find it: and we feel ourselves not at liberty to disregard the injunction which forbids us to take jurisdiction of the question by certiorari. Writ quashed. Huston, J. was absent.