source: Caselaw Access Project

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text:
    Woods’s Appeal.

    1. The constitutional convention of 1873 had no inherent rights; it had powers only.
    2. The Bill of Rights is a reservation of rights out of the general powers to the people themselves, not a delegation of powers to a convention.
    3. The convention was under the rule, that no agent or subordinate can claim the powers, liberties or franchises of the people except by their express grant or by plain and certain implication.
    4. The people had the same.right to limit the powers of their delegates as to bound the powers of their representatives.
    5. The legislature cannot confer powers inconsistent with the rights, safety and liberties of the people, because no consent can be implied, but they may pass limitations in favor of their essential rights.
    6. The convention called under the Acts of 1871 and 1872 could not take from the people their sovereign right to ratify or reject the constitution or ordinance formed by it, and could not infuse life or vigor into its work before ratification by the people.
    October 9th 1874.
    (At Pittsburg.) Before Agnew, C. J., Sharswood, Williams, Merour and Gordon, JJ.
    Appeal from the Court of Common Pleas of Allegheny county: In Equity : No. 37, to October and November Term 1874.
    On the 2d of December 1873, Robert Woods and Reese Owens filed a bill against Matthew S. Quay, Secretary of the Commonwealth of Pennsylvania, John H. Hare, sheriff of Allegheny county, James G. Murray, and others, commissioners of Allegheny county.
    The bill set forth that the plaintiffs were citizens and tax-payers of Allegheny county, and of the Commonwealth of Pennsylvania; it also set forth the Act of June 2d 1871, authorizing a vote for the call of a convention, and that a majority of votes had been cast in favor of calling a convention; it averred that the act was unconstitutional and repugnant to the tenth article of the constitution, which provides that amendments to the constitution are to be proposed to the Senate and House of Representatives, published in their journals and advertised; and if such amendments should be agreed*to by the next legislature, they should be advertised and submitted to the people, and if ratified by a majority of their votes, should become part of the constitution ; the bill further averred that by an Act of April 11th 1872, it was illegally attempted to confer upon the electors of the Commonwealth the right to select delegates to the convention in violation of the tenth article of the constitution above mentioned, and in violation of the first section of the third article of the constitution of Pennsylvania, giving to every elector the right to vote for as many persons as by law are to be chosen to fill the offices, &c., recognised by the constitution and laws of the Commonwealth, and in violation of the fifth section of the ninth article of the constitution, which declares that “ elections shall be free and equal,” that the Act of 1872 deprived the plaintiffs and other citizens of a right to vote for persons for delegates to the convention and “ illegally prevented your orators from casting their votes at said election in the manner and to the extent heretofore allowed and practised under the constitution and laws of this Commonwealth, and said election so held was not ‘ free and equal;’ that under and in pursuance of said act, nine delegates were to be chosen by qualified electors of said county, to said Constitutional Convention, and your orators were constitutionally and legally entitled to vote at said election for that number as delegates, but they allege the right so to do was by said act denied them, and by its terms and provisions they were only given the right to vote for six of said delegates; that said Act of Assembly is framed upon the theory that a majority of the votes cast at said election shall not prevail to elect the whole number of persons to be chosen for any given district as delegates to said Constitutional Convention. •Your orators expressly charge that said act denies the right of the majority to govern in the holding of elections, is anti-republican in principle, and wholly opposed to and subversive of the rights of the electors of this Commonwealth, and will introduce, if adopted, a dangerous and disturbing element in the laws and constitution under which we live, and is in violation of the fourth section of the fourth article of the Constitution of the United States, which declares (inter alia) that the ‘ United States shall guarantee to every state in this> Union a republican form of government;’ w * * that delegates chosen to said convention to the number of one hundi’ed and thirty-three, met on Tuesday, the 12th day of November, A. D. 1872, and illegally organized themselves as a convention to amend the constitution of said Commonwealth; that said delegates were not elected in the several districts where voted for, by a majority of the votes cast in said election, but under and in pursuance of the provisions of said act, whereby a minority representation was allowed, and persons permitted by said convention to sit and act therein as delegates who had not received a majority of all the votes cast in the respective election districts which they were claiming to represent; * * * that during the session of said convention vacancies occurred fin the membership thereof by the death and resignation of delegates, which vacancies were supplied in the mode pointed out by the 8th section of said Act of April 11th 1872, which action in supplying vacancies was unconstitutional and void; * * * that said Constitutional Convention arrogated to itself the exercise of legislative powers in violation of the existing constitution of Pennsylvania, and, in disregard of the Act of Assembly under which said convention delegates were elected, did undertake to and did pass what is termed 4 An ordinance for submitting the amended constitution of Pennsylvania to a vote of the qualified electors thereof,’ wherein and whereby it did illegally ordain that the election on said amended constitution should be held and conducted as in said 4 ordinance’ prescribed, thereby illegally disregarding the limitations prescribed by the fifth and sixth sections of the act aforesaid, under which the delegates to said Constitutional Convention were elected.” * * 41
    The bill charged that M. S. Quay, secretary of the Commonwealth, declared that he would comply with the provisions of the aforementioned “ordinance” of the convention, imposing duties upon him in relation to the submission of the amended constitution to a popular vote; that John H. Hare, sheriff of the county of Allegheny, has published in sundry newspapers his proclamation for holding an election on the 16th of December next to pass upon the amendments, and that James G-. Murray and others, commissioners of Allegheny county, had declared that they would perform the duties imposed on them by the aforesaid ordinance, &c. The prayer was for an injunction to restrain the defendants from acting in the premises as above set forth; that the Acts of June 2d 1871, and April 11th 1872, be declared unconstitutional and void; that the convention convened under the Act of 1872 was an illegal body and its acts without authority of law; that the 44 ordinance” of the convention was unconstitutional and void.
    The substance of the Acts of 1871 and 1872, and the ordinance referred to in the bill in this case, will be found in the preceding case, Wells v. Bain.
    The defendants demurred to the bill, and the case was heard on bill and demurrer. \
    The court (Stowe, J.) dismissed the bill in the following opinion:—
    44 Waiving for the present the minor questions involved in this demurrer, with reference to the right of plaintiffs to have the relief they ask, in case the allegations of the bill regarding the unconstitutionality of the Acts of Assembly, through which the Constitutional Convention of 1872 was convened, are correct, we come at once to the great question of the legal force and effect of the several Acts of Assembly specified in the bill. It is undoubtedly correct, as claimed by counsel for respondents, that the demurrer admits only the truth of the several facts alleged, and not the conclusions of law set out as arising from these facts; and therefore we are bound to determine for ourselves as a constitutional part of the cause, whether these conclusions are warranted by the facts, and not assume these Acts of Assembly are unconstitutional simply because it is so alleged in the bill.

      “ I have no difficulty in concluding that if the Acts of Assembly in question are unconstitutional and void the convention was an illegal body, and its acts revolutionary, and that in such case it would be the duty of courts to exercise all their authority to prevent its mandates being carried into effect to the injury of any individual; that the legislature would be bound to enact such laws as might be necessary to punish any attempt to force upon the people its revolutionary work, and the executive officers of the state to use all their power, civil and military, to suppress it.
    “ If, however, in the- face of all this, such force, moral or physical, was brought to bear as to overawe or compel the submission ofi;he legal authorities of the state, then, indeed, the arm of the law would be paralyzed, and the proposed constitution would become effective, not by the law, but by that higher right of revolution which is above all law, but is nowhere recognised by it. Courts can know nothing by anticipation. They are bound to determine the law as it is previous to the successful accomplishment of revolution, as though such a fact were impossible; but when accomplished and duly recognised by the political powers of the government, the courts have no alternative but to accept the fact without question and act accordingly.
    “ While, then, courts must recognise the powers that be, though the product of revolution, they are bound to use all their legitimate authority to suppress acts actually or ostensibly revolutionary, as though they were simply rebellious and could never become legitimate.
    “ Coming, then, to the question of the constitutionality of the act to authorize a popular vote upon the question of calling a convention to amend the constitution, approved June 2d 1871, and also the act passed subsequent to the election, held in pursuance of the same, entitled £ An act to provide for calling a convention to amend the constitution,’ approved April 11th 1872, raised by the 2d, 3d, 4th, 5th, 6th and 7th sections of complainants’ bill, it is claimed that they are both unconstitutional and invalid, because :—
    “ 1. There is no power given by the present constitution to the legislature, authorizing such a proceeding.
    .. “ 2. There is a different method provided by the constitution, by which it may be amended, and, therefore, upon well-recognised principles of law, the legal conclusion arises that no other exists.
    “ It cannot be claimed that the authority for the legislation and proceedings taken in reference to calling this convention, are expressly set out in the constitution, but it is argued that the power arises under the second section of the Declaration of Rights, which declares that ‘all power is inherent in the people and all free governments are founded on their authority, and instituted for their peace, safety and happiness. For the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such a manner as they may think proper,’ all of which is, inter alia, excepted out of the general powers of government and is ‘ for ever to remain inviolate.’
    “ It is difficult to see how the withholding of power from the government can, strictly speaking, create a right in the legislature from which it is thus withheld, to exercise that power; but if it should appear that such power exists above and before the constitution as a great natural and indefeasible right, and has been so recognised and acted upon frequently as a fundamental principle underlying all free government, this provision will sufficiently appear to be a solemn declaration of the existence of such a right, and may in ordinary parlance fairly be said, without any great breach of legal accuracy, to confer a power under the constitution.
    “ Before, however, entering into a consideration of this question, it will be necessary to examine whether there is anything in the constitution, as urged in the second proposition, which directly or by necessary legal implication takes away such a fundamental right as we have suggested, in case it existed, where there is no constitutional restriction.

      “ It is urged, and with much apparent force, that because the constitution in the tenth article ‘ of amendments ’ provides a certain and carefully-defined way for amending the fundamental law, the well-recognised legal maxim ordinarily applied to the construction of deeds and written instruments, as well as acts of legislation, ‘ JElxpressio unius est exelusio alterius,’ leads to the fixed legal presumption that no amendment can, under the constitution, be made to it, except in the way thus especially provided.

      “ This rule enunciates one of the first principles to the construction of any ordinary instruments between parties: Lord Denman, 0. J., 5 Bing. N. C. 185; but great caution is requisite in its application: Price v. The Great Western Railway Co., 16 M. & W. 244; Broom’s Legal Maxims 595; and it has long been settled in commercial transactions that custom and usage are allowed to control or rebut the implication arising under the rule.
    “ Mr. Broom says : ‘ While this rule is of important and extensive application, both in the construction of written instruments and verbal contracts, as also in the determining the inferences which may fairly be drawn from expressions used, or declarations made with reference to particular circumstances, it is by no means of universal conclusive application.’ For example, it is a familiar doctrine, that though where a statute makes unlawful that which was lawful before, and appoints a specific remedy, that remedy must be pursued, and no other; yet where the offence was antecedently punishable by a common-law proceeding, and a statute prescribes a particular remedy in case of a disobedience, that such remedy is cumulative, and proceedings may be had either at common law or under the statute.
    “ Custom and usage have also been allowed to aid in interpreting Acts of Parliament, ‘ and that exposition,’ says Lord Coke, ‘ shall be preferred which is applied by constant use and experience.’ It is by no means certain that the maxim alluded to should find any favor as a general rule of interpretation of an instrument like a constitution, which must of a necessity deal in generalities; but at all events, if so applied, it must in all such cases be considered as overcome by any established or common usage or understanding, indicating a different conclusion.
    “Mr. Jamjson, in his work on Constitutional Conventions, p. 578, says, with great force, upon this question: ‘Viewed upon principle, were there no authority upon the point, it would be doubtful whether, dealing in great questions of politics and government, the same maxim ought to prevail which regulates the constructions of contracts between man and man. As a matter of speculation it may be admitted that the rule expresses the weight of probability equally in cases of great and small magnitude. But there is always a doubt; and between the cases indicated, there is the wide difference, that in ordinary contracts it is possible to enforce the construction which the courts shall pronounce the true one, whilst in the case of constitutional provisions regulating great organic movements, to hold such a maxim applicable would be, by presenting barriers to the attainment of what the people generally desire, to make that revolutionary which perhaps was not so. Where the intention of the framers of a constitution is doubtful, the people assuming power under the broader construction, should have the benefit of the doubt; and that all the more because in opposition to them our courts are comparatively powerless. ■' It is infinitely better where no principle is violated, that a constitution should be so construed as to make their action legal rather than illegal.’
    “ So far as judicial opinion is concerned, it has been said by the Supreme Court of New York, that the maxim is to be applied to ordinary contracts, rather than constitutional provisions: Barto v. Hirmrod, 4 Selden 483; while the judges of the Supreme Court of Massachusetts have expressed a different opinion (6 Cushing 573), holding that under the Constitution of Massachusetts, containing a provision substantially like our own, no power existed to amend, except as provided in the article of Amendments. As a matter of history, however, a convention was called by the legislature in 1853, twenty years after this opinion was given, to propose a constitution; and while the question was raised as to the legality of such convention, it was ably vindicated by the best lawyers in the state, among them Choate, Parker and Morton, the latter one of the judges of the court at the time the opinion was given; and. a constitution prepared and submitted to the people.
    “ Turning now to the history of the government of the various states, for the purpose of discovering what the usage in such cases has been, we find the practice has been so frequent and uniform as clearly to indicate what the common understanding of the ■people, lawyers and laymen, has been in regard to this question.
    “ So far as I am able to learn, there had been, in 1865 (throwing out of consideration the rebel states during 1861, and afterwards while undergoing reconstruction), twenty-five constitutional conventions called by the legislatures of the various states, without any special authorization in their constitutions. In Georgia, January 4th 1789, May 4th 1789 and 1838. In South Carolina, 1790. In New Hampshire, 1791. In New York, 1801, 1821 and 1846. In Connecticut, 1818. In Massachusetts, 1829, 1853. In Rhode Island, 1824, 1834, 1841, and 1842. In Virginia, 1829, 1854 and 1864. In North Carolina, 1835. In Pennsylvania, 1837. In New Jersey, 1844. In Missouri, 1845, 1861 and 1865. In Indiana, 1850.
    “Mr. Webster stated in 1848, in his argument before the Supreme Court of the United States, in the case of Luther v. Borden, ‘that of the old thirteen states, their constitution with but one exception, contained no provision for their own amendment, yet there is hardly one that has not altered its constitution, and it has been done by conventions called by the legislature, as an ordinary exercise of power.’ If this is true, and my own examination, so far as, with the limited time and opportunity since the argument of this case, I have been able to make it, has verified it, as well as shown the continuation of the same practice to the present day, it would seem as though the question as to whether the calling of a constitutional convention was a legal exercise of power by the legislature, should now be considered by all judicial tribunals as settled so firmly as a part of the common law of our governments, that any attempt to disturb it at this day would savor more of revolution than legitimacy. He would be bold indeed, who would now assert that all these conventions were usurpations, and that all the constitutions proposed by them and adopted by the people were revolutionary.
    “ The conclusion that I have drawn from all this is, that tiñere .is underlying our whole system of American government a principle of acknowledged right in the people to change their constitu tions, except where especially prohibited in a constitution itself, in all cases and at all times, whether there is a way provided in their constitution or not, by the interposition of the legislature, and the calling of a convention, as was done in the case in hand.
    “ The offspring of revolution originally, but restrained and modified by the necessity arising out of the new principle estabfished in this country, by the accomplishment of our national independence, that the people are the government, and not the king, and the source of all political power, — it has become legitimated, and without mention in our constitutions, is as much the law of the land as if specifically set out in them: and that as a solemn recognition of this, and not as a revolutionary right, the section of the Declaration of Rights in our own, and similar clauses in other state constitutions, were inserted.
    “ The somewhat similar expression contained in the Declaration of Independence, was clearly revolutionary and so intended to be; but that was a paper published to the world to justify our refusal to submit longer to governmental authority, and spoke of the rights of the people, as against the oppression of constituted authorities; but in all instruments established by the people themselves for tlieir own government, the only rational view is to consider it as above stated, the introduction of a constitutional and legal revolution, by the consent of the constituted authorities of the state. This last is absolutely indispensable, as is now admitted by all. To give the force and effect of the law to the proceeding, it must emanate from the legislative authority, and be the result of its permission or direction. The only way the people can legally act under a constitution such as ours, is through their representatives, and therefore, no matter how many may favor a convention to change the constitution, if one should-be called, and convene without proper authority from the existing government, its action would be clearly illegal, and the result of illegitimate power. It follows then, that the action of the legislature in authorizing a vote of the people on the question of the amendment of their constitution, and subsequently by another act authorizing the election of delegates, was a legal exercise of legislative power, and constitutional, unless something in the acts themselves is in conflict with some constitutional provision.
    ,■ “ This is claimed by the plaintiffs in the fourth section of their because, they say these acts are in violation of the first section of the third article of the constitution, which gives, as they allege, to every qualified voter, the right to vote for as many persons as are to be chosen to fill offices, and of the fifth section of the ninth article, which provides that ‘elections shall be free and equal.’
    “ Suffice it to say as the first suggestion, that the constitution nowhere provided that every elector shall have a right to vote for as many persons as are to be chosen; nor do I think it at all a necessary implication in cases of offices which may be created and made elective by the legislature. In cases of what are called constitutional offices, a different question is presented, which we need not now consider.
    “ The second objection is, that it violates the clauses requiring elections to be free and equal. A careful consideration of this provision, and a comparison of it with similar and kindred provisions in the constitutions of other states, satisfies me that no such limitation as here suggested is contemplated by this provision. I understand it to be nothing more than a declaration, that elections shall be public, and open to all duly qualified alike, without discrimination as to individuals or classes. From these views it appears that the objection raised to the manner of electing the delegates to the convention are not valid, and that both the acts mentioned, are in our opinion constitutional, and the delegates to the convention were legally elected. '
    “ The 8th, 9th and 10th paragraphs of the bill complain of illegal acts done by the convention: first, in refusing a separate submission to a popular vote of the fifth article, relating to the judiciary, the contingency having arisen, under which, by an act of the legislature, they were bound to do so; and second, in altering several of the provisions of the bill of rights contrary to the limitations imposed in the fourth section of the Act of April 11th 1872; and third, in disregarding the Act of Assembly, under which the convention was called, in regard to submitting the amended constitution to a vote of the people, and ordaining a different method.

      “ These objections are all consistent with the conclusions already arrived at, and if valid would raise further questions under the bill, notwithstanding what has already been said, and should therefore be considered.
    “ In examining these questions, the first and second may be taken together.
    “ Looking upon general principles at the real question involved, which is how far, if at all, a Constitutional Convention regularly called, may legally disregard limitations imposed upon its actions by the legislature, I have no difficulty in arriving at what seems to me to be the correct rule. A convention to amend the constitution, without there is an express limitation as to the extent of their power, passed upon by the people in determining the question of amendment, has inherently, by the very nature of the case under the great principle peculiarly American, and quasi revolutionary in its character heretofore mentioned, absolute power, so far as may be necessary to carry out the purpose for which they were called into existence, by the popular will. Unless prohibited or restricted in the manner specified by the people, the convention has a right, untrammelled by mere legislative limitations, to propose to the people for their consideration and adoption any plan they may see fit. In saying this, we are not to be understood as saying that the convention is in any respect the supreme power of the state. We take it to be simply the attorney for the people, with plenary power to do what is required of it, but nothing beyond.

      “ Subject to the limitation just mentioned, a constitutional convention, in the language of Mr. Wilson, in the Federal Convention of 1787, has the power to conclude nothing, but to propose anything.
    “ Such too, is the inevitable result of the views already expressed as to the purpose and effect of the second section of the Declaration of Rights. If it be taken as a constitutional recognition of the principle of legal revolution (so to speak), and of a popular power as we believe, the obvious result follows, that when once called into operation by proper authority, it cannot be subverted nor restrained by the legislature.
    “ If this is correct, the convention was right in disregarding the limitations sought to be imposed upon its power, both as to what it should propose to change in the present constitution, and how the proposal should be submitted to the people, for their adoption or rejection.
    “ The third point, raising the question of the right of the convention to provide a way by ordinance, different from and substantially repealing the act of the legislature, presents a very different question from the one just considered. It is, however, immaterial to the determination of the real issue in this case. Assuming it to be an excess of power, the complainants can be in no wise affected by it as tax-payers. It is entirely immaterial to them in that respect, whether the ordinance is legal or illegal. Their only interest is that of knowing whether the convention had such a power or not, as a mere abstract question, which gives them no standing in court. So far as this county is concerned, there was no attempt by the convention to change the law made by the legislature. The election which will be held within our jurisdiction, and for which the complainants as tax-payers may be called upon to pay, will be held under what the complainants themselves say is the law, unless the submission of the proposed new constitution is itself, as it stands to-day, illegal and unconstitutional.
    “There are other questions involved in the case, as to the standing and equity of the plaintiffs under this bill, in view of the relief prayed for, but the conclusions already expressed, render it unnecessary to examine them.
    “ The result is, the demurrer must be sustained and plaintiffs’ bill dismissed.”
    The plaintiffs appealed to the Supreme Court, and assigned for error the decree sustaining the demurrer and dismissing the bill.

      JR. Woods, for appellants.

      R. B. Carnahan, for appellees.

       This case involving questions as to the powers of the Constitutional Convention of 1873, it is published, out "of its chronological order, and proner district, in connection with the case of Wells ». Bain immediately preceding, ante, p. 39.

   The opinion of the court was delivered, November 2d 1874, by

Agnew, C. J.

The change made by the people in their political institutions, by the adoption of the proposed Constitution since this decree, forbids an inquiry into the merits of this case. The question is no longer judicial, but in affirming the decree we must not seem to sanction any doctrine in the opinion, dangerous to the liberties of the people. The claim for absolute sovereignty in the convention, apparently sustained in the opinion, is of such magnitude and overwhelming importance to the people themselves, it cannot be passed unnoticed. In defence of their just rights, we are bound to show that it is unsound and dangerous. Their liberties would be suspended by a thread more slender than the hair which held the tyrant’s sword over the head of Damocles, if they could not, while yet their existing government remained.unchanged, obtain from the courts protection against the usurpation of power by their servants in the convention. When they become complainants, the convention must defend and show their authority.

It was contended in the case of Francis Wells et al. v. James Bain et al., involving the legality of an ordinance of the convention, argued at Philadelphia in December last (antea p. 39), that the convention had the power to ordain ordinances having the present force of law; and the instant power to proclaim a constitution, binding without ratification, irrespective of the matter adopted by the people, to exercise their right to alter or amend their frame of government. This imputed sovereignty in a convention called and organized under a law, as the very means 'adopted by the people to exercise their reserved right of amendment, owing to the briefness of the time, was not discussed in that case with the fulness the importance of the question to the people demanded.

There is no subject more momentous or deeply interesting to the people of this state than an assumption of absolute power by their servants. The claim of a body of mere deputies to exercise all their sovereignty, absolutely, instantly, and without ratification, is so full of peril to a free people, living under their own instituted government, and a well matured bill of rights, Abe bulwark and security of their liberties, that they will pause before they allow the claim and inquire how they delegated this fearful power and how they are thus absolutely bound and can be controlled by persons appointed to a special service. Struck by the danger, and prompted by self-interest, they will at once distinguish between their own rights and the powers they commit to others. These rights it is, the judiciary is called in to maintain. The very rights of the people and freedom itself demand, therefore, that no such absolute power shall be imputed to the mere delegates of the people to perform the special service of amendment, unless it is clearly expressed, or as clearly implied, in the manner chosen by the people to communicate their authority.

A convention has no inherent rights; it exercises powers only., Delegated power defines itself. To be delegated it must come in! some adopted manner to convey it by some defined means. This adopted manner therefore becomes the measure of the power conferred. The right of the people is absolute in the language of the bill of rights, “to alter, reform or abolish their government in such manner as they may think proper.” This right being theirs, they may impart so much or so little of it as they shall deem expedient. It is only when they exercise this right, and not before they determine by the mode they choose to adopt, the extent of the powers they intend to delegate. Hence the argument which imputes sovereignty to a convention, because of the reservation in the bill of rights, is utterly illogical and unsound. The bill of rights is a reservation of rights out of the general powers of government to themselves, but is no delegation of power to a convention. It defines no manner or mode in which the people shall proceed to exercise their right, but leaves that to their after choice. Until then it is unknown how they will proceed, or what powers they will confer on their delegates. Hence we must look beyond the bill of rights to the mode adopted by the people, to find the extent of the power they intend to delegate. These modes were stated and discussed in the opinion in Wells et al. v. Bain et al., supra. If, by a mere determination of the people to call a convention whether it be by a vote or otherwise, the entire sovereignty of the people passes ipso facto into a body of deputies or attorneys, so that these deputies can without ratification, alter a government and abolish its bill of rights at pleasure, and impose at will a new government upon the people without restraints upon the governing power, no true liberty remains. Then the servants sit above their masters by the merest imputation, and a people’s welfare must always rest upon the transient circumstances of the hour, which produce the convention and the accidental character of the majority which controls it. Such a doctrine, however suited to revolutionary times, when new governments must be formed, as best the people can, is wholly unfitted when applied to a state of peace and to an existing government, instituted by the people themselves and guarded by a well matured bill of rights.

To impute absolute power to a convention of mere delegates, from a vote on the simple question of calling it, as for example under the Act of 1871, is to assume a grant by the people without terms, without the means of limitation, and without any clearly evinced intent. It is an assumption without a just basis against the security, the interest and the welfare of the people, which no body of men have a right to make, and no judicial reason or rule can justify. It contravenes the rightful and necessary prerogative of the people to determine their own institutions by ratification or rejection, and in this respect contravenes the very language and spirit of the bill of rights by which they reserved to themselves the right to change their form of government. It also conflicts with that universal rule, that no agent or subordinate can claim the powers, liberties or franchises of the people, except by their express grant, or by a plain and certain implication. What intent is more doubtful? Nay, what clearer wow sequitur is it than to affirm, because a people vote to call a convention, they therefore strip themselves of their most essential power to ratify or reject the work of their delegates ? The inference is the very reverse, for a vote for a convention, which must be called afterwards by law, from its very nature refers the constitution and powers of a convention so to be called, to the law, which the people use to accomplish their purpose. Such was the nature of the Act of 1871. It was simply an order (assuming its mandatory character) to call a convention. It was not a call itself, and it provided no terms in which the call should be made. The people were silent on this point, and therefore no implication can be made against their essential right to protect themselves. The mandatory character of the call does not alter the inference from the vote or extend the intent evinced by it. The effect of the vote remains simply, that a convention shall be called. The elector expressed no power to be conferred. The total vote evinced no common terms, and certainly none that the power to be transferred to the convention when called and organized should be that of absolute will, without ratification or approval. This is tested by a very simple and practical question: Did the people, when they voted to call a convention, intend to strip themselves of the power to ratify or reject the work of their servants ? If so, where is the evidence of this intent? Every elector knows as a fact no such proposition was made to him. On the question of power, the minds of the people met on no common ground of intent. The desire of one was not that of another, and a third may have differed from both. Therefore to impute absolute sovereignty of will to the convention to be called, from the vague and inexpressive implication of the vote on the question of calling a convention, is to assume a grant where none exists, or can be fairly inferred, compatibly with the rights and liberties of the people. Its effect is to declare the impcfcency of the people, and the absolute potency of their agents. It -W to determine a question of authority against the principal, a® in favor of the agent or servant, without any evidence of an intention to transmit the power.

The people have the same right to limit the powers of their delegates that they have to bound the power of their representatives. Each are representatives, but only in a different sphere. It is simply evasive to affirm that the legislature cannot limit the right .of the people to alter or reform their government. Certainly it cannot. The question is not upon the power of the legislature to restrain the people, but upon the right of the people, by the instrumentality of the law, to limit their delegates. Law is the highest form of a people’s will in a state of peaceful government. When a people act through a law the act is theirs, and the fact that they used the legislature as their instrument to confer their powers makes them the superiors and not the legislature. The idea which lies at. the root of the fallacy, that a convention cannot be controlled by law is, that the convention and the people are identical. But when the question to be determined is between the people and the convention, the fallacy is obvious. Such a metonymy may do for a flourish of rhetoric but not for grave argument. The parties to the question are the people on the one hand and the convention on the other. The people allege an usurpation of power in this, that the convention seeks to bind them without their ratification. The question then is, what power was conferred ? The judiciary sits to decide between them. The people having challenged their power to set a government over them at will, the .agents must show their authority to do this. The latter put in evidence the Act of 1871, as their authority. , Then the issue is, does the Act of 1871, simply ordering a convention to be called, confer this absolute, extraordinary and dangerous power upon a body of men not yet called into being, and which can have neither being nor power except by the further act of the people through the instrumentality of a law ? To make the law odious, it is assumed that the legislature is or may be corrupt. But this is aside from the true question of power. In a governmental and proper sense, law is' the highest act of a people’s sovereignty, while their government and constitution remain unchanged. It is the supreme will of the people expressed in the forms and by the authority of their constitution. It is their own appointed mode through which they gov-' ern themselves, and by which they bind themselves. So long as their frame of government is unchanged in its grant of all legislative power, these laws are supreme over all subjects unforbidden by the instrument itself. The calling of a convention, and regulating its action by law, is not forbidden in the constitution. It is a conceded manner, through which the people may exercise the right reserved in the bill of rights. It falls, therefore, within the protection of the bill of rights as a very manner in which the people may proceed to amend their constitution, and delegate the only powers they intend to confer, and as the means whereby they may, by limitation, defend themselves against those who are called in to exercise their powers. The legislature may not confer powers by law inconsistent with the rights, safety and liberties of the people, because no consent to do this can be implied, but they may pass limitations in favor of the essential rights of the people. The right of the people to restrain their delegates by law cannot be denied, unless the power to call a convention by law, and the right of self-protection, be also denied. It is, therefore, the right of the people and not of the legislature to be put by law above the convention, and to require the delegates to submit their work for ratification or disapproval.

To argue a want of authority in the law from the alleged character of those who passed -it is bad logic, and an undeserved reproach, in view of the liberality of the subsequent Act of 1872, which opened a wide door to men of all parties, and filled the convention with the best men in the state. When it is conceded that a convention can be called and organized by law, the number and qualifications of the delegates prescribed, their districts defined, their mode of selection or appointment determined, their time and place of meeting fixed, and their compensation declared by law, the binding force of law must be conceded. The convention was a creation of law, and its members the offspring of law — fifty by the mere force of law, without a popular election. How, then, can the power of law be denied ? Without it no delegates had existed, and no power had been transmitted to them. It is a solecism and a fallacy to assert that a law has the power to transmit the authority of the people, and yet is a nullity in the terms of its transmission. If the authority of the people passes to the convention outside of the law, the people are left without the means of self-protection, except by revolution. Then the singular spectacle is presented of the absolute sovereignty of the people being vested in a body of agents without any known means of transmission or of limitation. But clearly this cannot be when the fundamental rights of the people are at stake. To estop them from their right to accept or reject the work of the convention, there must be an evident channel pointed out through which their power passed to the convention to ordain at pleasure a constitution or binding ordinances. The force of the argument cannot be avoided by reference to the well-known purity of character of the delegates. The personnel of the convention has nothing to do with the question of delegated power. It may help to suppress an inquiry into the power, but, however presently popular the doctrine of self-imputed sovereignty may be to those whose integrity forbids intentional wrong, as a question of power the doctrine is unfounded in prin-. ciple, repugnant to right reason, incompatible with safety, dangerous to liberty, and unsuited to times of agitation and excitement which sometimes overcome the people.

No argument for the implied power of absolute sovereignty in a convention can be drawn from revolutionary times, when necessity begets a new government. Governments thus accepted and ratified by silent submission afford no precedents for the power of a convention in a time of profound tranquillity, and for a people living under self-established, safe institutions. While conventions are well-known historical modes of procedure in the formation of constitutions, they prove nothing; for history does not define their powers or estop the people from asserting their own. There can be no estoppel by precedent against the fundamental rights of the people. Limits must be set to power. Liberty demands absolute security. No people can be safe in the presence of a divine right to rule or of self-imputed sovereignty in their servants to bind them without ratification.

Nor is the improbability of a wrong use, or an abuse of power, a sound argument in the light of our own knowledge. We have seen a public sentiment formed and elections carried in a few months, and yet the subject of excitement was as short-lived as it was sudden. Men have been proscribed for religion’s sake and for a foreign birth. Moving like a whirlwind, such excitements have filled a legislature with its partisans. In our day, conventions, imputing sovereignty to themselves, have ordained secession, dragged states into rebellion against the well-known wishes of their quiet people, and erected in the midst of the nation alien state governments and a Southern Confederacy. The negro is now a citizen and an elector, and yet the time is not long gone by since the word “ white ” was voted by a former convention into the article on elections. Who can foretell the next subject of agitation ? The times abound in contests. Labor and capital are in strife. Agriculture wars on transportation. Communism, internationalism, and other forms of agitation excite the world. Let conventions in such seasons possess, by mere imputation, all the powers of the people, and what security is there for their fundamental rights ? Not the bill of rights, nor even the particular sentiment that brings the convention into existence. Once assembled, a convention, according to this dogma, is all powerful, and may annul any declaration in the bill of rights, and proclaim a constitution without let or hindrance. Who will predict what effects may be produced by combinations foreign to the purpose which actuated the call ? The fundamental rights of the people, the true principles of civil liberty, the nature of delegated power, and the liability of the people to temporary commotion, all rise up in earnest protest against such a doctrine of imputed sovereignty in the mere servants of the people.

Then look at the constitution of the body to which this power may be imputed. The number may be any designated in the law, 133, thirty-three or three times three. The delegates may not be chosen by the whole people, but by portions of the people of one party, as under' the Act of 1872. On what principle of sound reason or logical deduction does such a body possess, by mere imputation, all the powers of the people, not conferred on them by law ? They possess them by no act of the people independently of law. And certainly there is no popular afflatus outside of the law to breathe into them the spirit of prophecy in the name of the people.

In conclusion, we find nothing in the Bill of Rights, in the vote under the Act of 1871, or the authority conferred in the Act of Í872, nothing in the nature of delegated power, or in the constitution of the convention itself, which can justify an assumption that a convention so called, constituted, organized and limited, can take from the people their sovereign right to ratify or reject a constitution or ordinance framed by it, or can infuse present life and vigor into its work before its adoption by the people.

Decree affirmed.


author: A&new, C. J.

text:
    Leeds's Appeal.
    1. The Act of March 31st 1843, sect. 2, requiring the sheriff to dismiss a deputy, &c., for taking illegal fees, has not been repealed, is constitutional and in furtherance of the Bill of Bights.
    2. The relation between a sheriff and his deputy is civil and of known legal character.
    3. An application under the Act of 1843, to require the sheriff to dismiss a deputy, is not a criminal proceeding against the sheriff for an offence, but in nature of a civil remedy.
    4. There is no appeal from a decree of the Common Pleas on the merits, requiring the dismissal of a deputy sheriff.
    January 7th 1874.
    Before Agnew, C. J., Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Appeal from the Court of Common Pleas of Philadelphia, No. 182, to January Term 1872, by William it. Leeds, sheriff: In the matter of a decree requiring him to dismiss William H. Mooney, deputy sheriff.
    The proceeding was under the second section of the Act of March 31st 1843, Pamph. L. 122, relative to. the county of Philadelphia, by which it is enacted:—
    “ That if any deputy sheriff, bailiff, gaoler, or other officer employed by the high sheriff of the county of Philadelphia, shall take, demand or receive any fee or charge other or greater than that which is now allowed by law, it shall be the duty of the Court of Common Pleas of said county, on complaint being made, to grant a rule on said sheriff, to show cause why said deputy ■* * or other officer should not be dismissed from office; and if upon the return of said rule due notice be given to all parties interested, there be a default to appear and show cause, and the fact be shown to the satisfaction of the said court, it shall be the duty of the said court to make the same absolute, and to enforce obedience thereto by attachment: Provided, That nothing herein contained shall be construed to repeal any existing remedies or penalties for taking illegal fees: And, provided, That it shall not be lawful for the sheriff during the term of service to re-appoint any officer so as aforesaid dismissed.”

      The proceeding was commenced September 14th 1871, by the petition of John Gr. Williams to the Court of Common Pleas, setting out:—
    “ That he is the defendant in the judgment obtained in the Court of Common Pleas for the sum of $196.69, on the 21st day of January, A. D. 1871, upon which an alias writ of fieri facias to March T., 1871, No. 283, was issued. That a levy upon his goods, at, &c., was made by deputy sheriff William Harvey Mooney; but before any sale could take place he went to the sheriff’s office to pay the said claim. That the said deputy sheriff demanded the sum of $246, and he paid the same to one Robinson, who said he acted for the said Mooney, and received the receipt, a copy of which is hereto annexed. That the next day he called again at the sheriff’s office and saw the said William Harvey Mooney and demanded a bill of items. The said Mooney stated that he had received the money and that a receipt had been given, which was sufficient. That your petitioner again demanded a bill of items, which was again refused. That your petitioner is informed and believes that the sum charged is greater than is allowed by law; and he respectfully refers to the laws of this Commonwealth in such cases made and provided, as evidence of the same. He, therefore, prays your Honorable Court to grant a rule upon William R. Leeds, sheriff of the city and county of Philadelphia, to show cause why he should not dismiss the said William Harvey Mooney, deputy sheriff, from his office, for taking illegal fees returnable,” &c.
    Receipt mentioned in the petition:—
    “ Charles Perry ) C. C. P. v. > Ais. fi. fa. John Gi. Williams, j Mar. T., ’71, No. 283.
    “ Received, Philadelphia, April 20th 1871, of the defendant, the debt, interest and costs on the above writ.
    $246. “ Wm. H. Mooney, Dep. Sheriff,
    “ per J. \B. Robinson.”
    Leeds filed the following answer and pleas: “ That the second section of the act relative to the county of Philadelphia, approved March 31st 1843, on which said petition rests, is repealed by section 12 of ‘ An act to consolidate, revise and amend the penal laws of this Commonwealth, approved March 31st 1860; * * * that by section 27 of ‘ An act establishing a fee-bill,’ approved March 28th 1814, it is enacted:—
    “ ‘That it shall and may be lawful for any person to refuse payment of fees to any officer who will not make out a bill of particulars as prescribed, signed by him if required ; and also a receipt or discharge signed by him of the fees paid;’ and that as said petitioner paid without any request for a bill of particulars, and without the receipt of the deputy for the fees paid, this defendant cannot and ought not- to he asked to dismiss said deputy.
    “And the said William R. Leeds without waiving, &c., * * * for answer, saith, that he hath no knowledge of the matters therein stated ; but as he is informed and believes the information to be true. That the fieri facias referred to in said petition was an alias writ; and that the amount of money collected and paid over to him, thereon was $221.41, being made up as follows, &c. * * *
    “ That he has requested and received a statement of facts to which said petition refers, from said Mooney, sworn to by him, and attaches the same as a part of his answer, as if made on information which he believes to be true.”
    Statement of Mooney, referred to in Leeds’s answer:—
    “ The execution referred to in the petition of John Gr. Williams was an alias fi. fa. The original was to December 1870, 272, which had been stayed without the payment of costs. When the execution came into the office I was absent, having broken my arm. The writ was given to my assistant, J. B. Robinson, who settled the costs and charges. I did not receive the money from the petitioner, nor did I demand it. My assistant informs me that he did charge $25 for his services, and that he made this charge at the suggestion of a former deputy sheriff, under Mr. Lyle, he stating that it was usual. The sum of $246.41 was made as you have stated in your answer, adding the $25.
    “ I desire to say that as I receive nothing for my services, I have always felt an indulgence to the defendant, which does not harm the plaintiff, entitles me to something; but as the sum in this case is excepted to, I have directed my assistant to pay the same to the execution clerk, to be repaid to the defendant, which he has done.”
    By § 12 of Act of March 31st 1860, referred to in respondent’s plea, it is provided:—
    “If any justice, clerk, prothonotary, sheriff, coroner, constable or other officer of this Commonwealth shall wilfully and fraudulently receive or take any reward or fee to execute and do his duty and office, but such as is or shall be allowed by some Act of Assembly, or shall receive or take by color of his office any fee or reward whatever, not, or more than is allowed as aforesaid, he shall be deemed guilty of a misdemeanor, and on conviction be sentenced to pay a fine not exceeding $500, or to undergo an imprisonment not exceeding one year.”
    The Court of Common Pleas (Paxson, J.) made this decree:—
    “ And now, December 2d 1871, it is ordered, that the pleas filed or presented by the respondent, William R. Leeds, High Sheriff of the county of Philadelphia, to the petition and complaint of John G-. Williams, be overruled, and the answer dismissed for insufficiency as to the matter therein contained. And it is further ordered, that the rule granted upon the sheriff be made absolute; and he is commanded to forthwith dismiss from his office of deputy sheriff, the said William H. Mooney, and not to re-appoint him during the said William R. Leeds’s term of office.”
    Leeds appealed to the Supreme Court and assigned the decree for error.

      D. W. Sellers and C. Gilpin, for appellant.
    Where, for the same offence, there are different punishments by several statutes, the latter act is held to operate as a repeal of the first: U. S. v. Tynen, 11 Wallace S. C. 93.

      J. J. Ridgway, Jr., for appellee.
    The act says “ any deputy sheriff who shall take, demand or receive illegal fees shall be dismissed.” Taking illegal fees by deputy, is taking them by principal. The deputy here admits the receipt, which brings him within the law: Deal v. Tower, 1 Phil. R. 268; Miles v. Huber, 3 Penna. L. J. 151; Patton’s Est., 2 Parsons 107; Bussier v. Pray, 7 S. & R. 447.
    The law does not favor repeals by implication, and courts should be scrupulous how they give sanction to them: Haynes v. Jenks, 2 Pick. 176; Brown v. Miller, 4 J. J. Marshall 474. Nor does a statute, repealing all former acts within its purview, repeal the provisions of former laws, as to cases not provided for by the repealing statute: Payne v. Conner, 3 Bibb 180.
   The opinion of the court was delivered, January 17th 1874, by

A&new, C. J.

This is not a criminal proceeding against the sheriff for an offence, but is in the nature óf a civil remedy to compel the discharge of a deputy who has been guilty of taking unlawful fees. The Act of March 31st 1843, § 2, is a wise and salutary law to protect the people against official misconduct by purifying the office and requiring the discharge of unworthy assistants. The sheriff being a public officer under the control of law, accepts his office under this and other laws which define his duties and declare his disabilities. He cannot, and ought not to be permitted to keep in his employment persons known to be guilty of illegal practices in the execution of process.

The relation between the sheriff and his deputy is civil and. of known legal character, and it does not admit of a doubt that he may discharge a deputy who abuses his position by extortion. The statement of the deputy, annexed to the sheriff’s answer, is an admission of the facts, as well as evidence of the necessity and the propriety of the remedy provided in the Act of 1853. He admits that he is in an employment for which he is to receive no payment from the sheriff, and obtains no compensation, except as he ex tracts it by extortion from the defendants in the execution. He puts it on the ground that a defendant may purchase an indulgence from the execution of official duty, which does not harm the plaintiff. But if such a practice can be tolerated, it depends only on what price a defendant is willing to pay, whether the plaintiff may be injured or not. The practice leads to all manner of injustice, and wrongs both parties, the plaintiff in some cases being fraudulently postponed through bribery, and the defendant in others being fraudulently fleeced by extortion, as in this case. A bad feature of the practice is, 'that it inculpates the sheriff himself. His deputies cannot live upon air, and yet he employs them; takes all the legal fees, pays them nothing, and leaves them necessarily to prey upon the parties, and maintain themselves by fraudulent and illegal practices. It is the duty of all courts, and all honest men, to set their faces against such public wrongs as these.

The Act of 1843 is not unconstitutional, but on the contrary, is in furtherance of that clause in the bill of rights which requires justice to be administered without sale, denial or delay. It is incompatible with no subsequent law brought to our attention, and has not been repealed. It is a salutary protection of the citizens against official injustice, and has been righteously administered by the court below. Moreover, there is no appeal given on the merits, which would enable us to reverse on the merits, if they were not as they are.

The appeal is therefore quashed, and the costs ordered to be paid by the defendant below;.


author: Mercur, J.

text:
    Shisler versus Keavy.
    1. It was agreed to submit all matters in a pending suit to referees under the Act of June 16th 1836, that the submission should be made a rule of court, and be binding “ without appeal, exception or writ of error.” Held, that the award was not invalid for want of the affidavit directed by the 2d section.
    2. That section does not apply to a submission and rule in a pending suit.
    3. After filing the submission the parties agreed to substitute a referee in place of one declining to serve. Meld, this waived an affidavit, if it were required.
    4. When the submission is in a pending action it need not be stipulated that it shall be a rule of court.
    5. On the day the award was filed one of the parties filed a revocation of his submission ; the court below refused to set the award aside. Meld, that it belonged to such court to correct errors as on motion for a new trial, and the Supreme Oourt will not review the decision, except as to matters appearing by the record.
    6. Neither depositions, other evidence nor the reasons of the court below are part of the record.
    7. After an agreement for submission has been executed neither party can revoke it.
    8. Under an agreement for submission providing that the award shall be final, without appeal or exception, the court cannot rectify a mistake of fact of the referees.
    9. A submission in writing cannot be revoked except by writing given to the referees or a majority of them.
    10. Walls v. Fife, 1 Wright 394, remarked on.
    January 7th 1874.
    Before Agnew, C. J., Mercur and Gordon, JJ. SharSWOOD, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 125, to January Term 1872.
    This was an amicable action in assumpsit, in which Richard Keavy was plaintiff and Isaac M. Shisler defendant, commenced February 23d 1871.
    By writing filed March 7th 1871, it was “ agreed that all matters in controversy in above suit be referred to George C. Miller, Peter F. Stout and Isaac M. Post, under the provision of the Act of Assembly of the Commonwealth of Pennsylvania approved June 16th 1836, that such submission become a rule of court, either party to be bound and concluded by the award of said referees, or a majority of them, without the right to appeal, file exception, or take out a writ of error. Attorney to accept service for either one.”
    1871. June 20th. — By .writing filed it was agreed that Norman H. Stevens be substituted as arbitrator in the above case, in place of Isaac M. Post, who had declined to serve. 1871. August 14th. — Defendant’s withdrawal from rule of arbitration was filed. 1871. August 15th. — Award of referees filed; it was as follows :—
    “ We, the undersigned, arbitrators named in the foregoing rule of reference and agreement for substitution, met at the office of A. A. Hirst, Esq., on Monday, the 17th July 1871, at 3 o’clock p. m., the plaintiff and his counsel and defendant’s counsel, Edward A. Brady, Esq., present: proof being given of the proper service of notice on defendant personally; at request of counsel for defendant we adjourned until Monday, July 24th 1871, at 3 o’clock in the afternoon, to meet at the same place, when we were attended by both plaintiff and defendant, and by each of their counsel. We made progress, and at request of counsel for defendant, we adjourned until Monday, August 14th 1871, at 3 o’clock in the afternoon, at the same place, when we were attended by plaintiff and counsel for plaintiff, and having determined the matter in controversy submitted to us, we award that there is due from the defendant to the plaintiff the sum of one hundred and forty dollars.- Witness our hands this 14th day of August, A. D. 1871.”
    The defendant’s notice of revocation was as follows:—
    “ Messrs. N. H. Stevens, P. F. Stout and G. C. Miller:— Please notice that I hereby withdraw from the arbitration rule filed in the above case, and decline to abide by said reference or to be bound thereby. Isaac M. Shisler., Defendant.
    “ August 12th 1871.”
    The defendant filed exceptions to the award, viz. :
    1. The award is illegal.
    2, 3. It was filed after written notice to the referees of revocation of the submission and after the revocation was filed.
    7, The submission is not in accordance with law.
    The affidavit of the defendant as to the notice of revocation was, that on the 14th of August 1871, he served a written notice of revocation on the counsel of the plaintiff, and at the same time served a similar notice on Peter F. Stout, one of the referees, “ with whom similar notices were left for the other referees before the award was made.” The affidavit further averred that defendant had a good defence to the whole of plaintiff’s claim, and set out the grounds of the defence, which he averred he could prove.
    The District Court (Lynd, J.) . dismissed the exception, and directed judgment on the award to be entered for the plaintiff.
    On the removal of the record to the Supreme Court by the defendant, this order of the court was assigned for error.

      A. Thompson, for plaintiff in error.
    A submission is revocable: Watson, on Awards 16, 21; Wilson v. Young, 9 Barr 101; Power v. Power, 7 Watts 213 ; Bailey v. Stewart, 3 W. & S. 560; McG-heehan v. Duffield, 5 Barr 500; Vynoir’s Case, 8 Rep. 162. If the award is substantially defective, it may be set aside: Etter v. Edwards, 4 Watts 63. Unless an affidavit is filed with the agreement the judgment upon it is voidable: Wall v. Fife, 1 Wright 394.

      A. A. Hirst (with whom was W. Tj. Hirst), for defendant in -error.
   The opinion of the court was delivered, January 19th 1874, by

Mercur, J.

The parties, by writing filed March 7th 1871, agreed to refer all matters in controversy, in a pending suit, to three persons named, under the Act of 16th June 1836. They further agreed, that the submission should be made a rule of court, and that each party should be bound and concluded by the award of the referees, or of a majority of them, “ without the right to appeal, file exception, or take out writ of error.” It is claimed, however, that the award is invalid by reason of the omission to file the affidavit directed by the second section of said act. It is true, it was said in Wall’s Administrators v. Fife, 1 Wright 394, that the agreement and submission are not entitled as a matter of right to be entered on the docket by the prothonotary without the affidavit. But neither this section nor the decision referred to applies to a submission and rule in a pending suit. If either did so apply, the filing of the affidavit might be waived by the parties. Their subsequent written agreement, filed June 20th 1871, whereby they agreed that another person named be substituted as an arbitrator in the place of one of the former, who had declined to serve, was such a waiver that the absence of an affidavit cannot now be successfully interposed. Besides, when the submission is in a pending action it is unnecessary expressly to stipulate that it be made a rule of court: McAdams’ Executors v. Stillwell, 1 Harris 90 ; Buckman v. Davis, 4 Casey 211; Quay v. Westcott, 10 P. F. Smith 163; Summy v. Hiestand, 15 P. F. Smith 309. Where there is an agreement to refer in an action pending, consent to make it a rule of court will be implied: Painter v. Kistler, 9 P. F. Smith 331.

The other ground urged against the validity Of the award is the revocation of the submission. The record shows that upon the same day on which the award was made and signed, the plaintiff in error filed a “withdrawal from rule of arbitration.” Which was first in point of time the record does not show. That the withdrawal preceded the making of the award, the plaintiff in error sought to establish extrinsic to the record. It is the province of the court below to take cognisance of and correct. the errors not shown by the record, of the arbitrators, just as it would remedy those committed by a jury, on a motion for a new trial, -and its decisions cannot be reviewed unless there be errors of law apparent upon the record itself: Kline v. Guthart, 2 Penna. R. 495 ; Sands v. Rolshouse, 3 Barr 457; Rogers et al. v. Playford, 2 Jones 181; Buckman v. Davis, 4 Casey 211. The depositions or other evidence are no part of the record, and although they may be-sent up with the record, should not be considered in this court: Browning v. McManus, 1 Whart. 177; Rogers v. Playford, supra; Brown v. School Directors, 6 Harris 78 ; Dodds v. Dodds, 9 Barr 315. As the reasons given by the court for dismissing the exceptions constitute no part of the record, the opinion which was thereupon filed cannot be considered. The parties agreed not “ to appeal, file exception, or take out writ of error.” It was said, in Rogers et al. v. Playford, supra, there is no paramount reason of public policy forbidding an agreement that their decisions should be beyond the reach of further inquiry or revision. Hence it was held if an agreement to submit a case to arbitration provide that the award shall be final and conclusive, and that neither party shall have a right to appeal or file exceptions to it, the parties are concluded by their agreement and have withdrawn from the court its power to rectify a mistake of fact on the part of the referees, on exceptions filed to their award : McCahan v. Reamey, 9 Casey 535, and cases there cited.

While the general power to revoke a submission is well settled, yet after its execution it is beyond the dominion of either party, when the submission has assumed the form of a contract upon a sufficient consideration. Hence, a submission to a final reference in consideration of a discontinuance -of proceedings in chancery for an account, was held to be irrevocable : McGheehan v. Duffield, 5 Barr 500.

The record shows that the hearing before the referees after they had met was twice adjourned upon the. application of the plaintiff in error, before he attempted to revoke the submission. His alleged notice of revocation was given to one only of the referees. It was expressly ruled in Dickerson v. Rorke, 6 Casey 390, that when a submission is in writing, it cannot be revoked, except by a. written instrument given to the arbitrators, or a majority of them.

The court below having' dismissed the exceptions and entered judgment upon the award, we discover no such error as to require us to disturb it; Buckman v. Davis, supra.

Judgment affirmed.


text:
    Crissey versus Hestonville, Mantua and Fairmount Passenger Railway Company.
    1. As a general rule a question of negligence is for the jury, especially if there be substantial doubt as to the fact^ or their inferences.
    2. Negligence is dependent upon the circumstances of the case; and is for the jury where the measure of duty is not unvarying; a higher degree of care is demanded in some cases than in others and both the duty and its extent to be ascertained by facts.
    3. Where negligence is concurrent a child will not be held to the same degree of care as an adult.
    "4. The plaintiff, thirteen years of age,-with a companion of same age, signalled a street car, got on the front platform without objection from the driver or conductor and paid their fare. After riding for a considerable distance, plaintiff said he was going to get off, the driver “ slacked up,” but did not stop; in .getting off plaintiff was injured. Whether he had been guilty of negligence was for the jury.
    5. Whether permitting the plaintiff to stand on the front platform and get
    off from it were negligence, and proper care was exercised in not stopping the car sooner, was for the jury. 1

    6. It is the duty of a railway company to cause its cars to come to a full stop for passengers to get off. _
    January 8th 1874.
    Before Ac-new, C. J., Sharswóod and Mercur, JJ.
    Error to the District Court of Philadelphia: No. 184, to January Term 1872.
    This was an action on the ease, brought to December Term 1870 of the court below, by Edwin Crissey, by his next fr-iend, &c., against The Hestonville, Mantua and Fairmount Passenger Railway Company. The cause of action alleged was the negligence of the defendants’ servants, by which the plaintiff, a hoy of about thirteen years of age, fell from one of their cars and was seriously hurt. ,
    The case was tried May 5th 1871, before Thayer, J.
    The evidence was as follows :—
    The plaintiff testified: “ On the afternoon of November 6th 1870, another boy, named John Stewart, and myself stood at Thirteenth and Vine streets waiting. One of defendants’ cars came along and we signalled the driver. He slacked up to receive us, and we got on the front platform. We stood on the front platform, by the side of the driver, all the way out to Eorty-first street and Lancaster Avenue. I then said to John Stewart, who stood next to the driver, ‘ I’m going to get off here.’ I spoke loud enough for the driver to hear. The horses were going at a slow trot, and I stepped off. I took hold of the dasher with one hand and the iron on the car with the other. As I stepped off my foot slipped, and I held on as long as I could. I dragged two or three yards holding on, and the front wheel ran over my foot before the car stopped, and I was holding on trying to save myself. • The conductor was on the back platform. While we were going out he came to me and collected my fare. Neither he nor the driver offered us a seat, nor told us to go inside. They did not tell us that we- ought not to stand on the front platform, or that it was dangerous there. I was then thirteen years old. There were no fenders or gates on the front platform ; nothing to prevent us from getting on or off the front platform. My foot gave me much pain, and I was prevented from work for eleven weeks.”
    On cross-examination: “ When I said to John Stewart, ‘ I’m going to get off here,’ I meant at that spot, not at the depot. We were then two or three times the length of this room from the depot. John Stewart stood between the driver and me. I did not ride on the step. I did not ask the driver to let me off”
    John Stewart testified : “ I was the companion of Edwin at the time of the accident. We both rode out on the front platform. At Forty-first and Lancaster Avenue he said to me, ‘ I’m going to get off here.’ I stood by the side of the driver and heard what hé said. He spoke loud enough for the driver to hear. The car slacked up. There was a crossing where we wanted to get off. The depot was about 100 yards off I saw Edwin step off He fell, and held on to the iron thing, and the wheel ran over his foot. Nothing had been said to us about getting off the front platform, or standing on it. No one asked us to take a seat. We rode all the way outside. I am thirteen years old.”
    The plaintiff submitted a number of points, which were refused. The court charged : u That there was not sufficient evidence of negligence on the part of the defendants to entitle the plaintiff to recover, and that there was evidence of contributory negligence on the part of plaintiff, and that upon the evidence the verdict should be for the defendants.”
    The verdict was for the defendants.
    The plaintiff took a writ of error, and assigned for error the refusal of the points and the charge.

      W. H. Sutton, for plaintiff in error.
    The slightest omission of care by a carrier of passengers renders him liable for injury which may result: Tennery v. Pippinger, 1 Phila. R. 543; Laing v. Colder, 8 Barr 492; Meier v. Penna. R. R., 14 P. F. Smith 230. An injury to a passenger presumes want of care: Railroad v. Norton, 12 Harris 466. Where negligence is concurrent, the same rule will not apply to children as to adults; the question as to the relative degree of care is for the jury: Reading R. R. v. Spearen, 11 Wright 300; Smith v. O’Connor, 12 Id. 222; Rauch v. Lloyd, 7 Casey 370; Glassey v. Railway, 7 P. F. Smith 174 ; Penna. R. R. v. Bentley, 16 Id. 30; Railroad v. McClurg, 6 Id. 294; Shearman & Redfield on Negligence, 13-15, 310, 339.

      H. Hazlehurst (with whom was I, Hazlehurst), for defendants in error.
    Where the facts are not disputed the question of negligence is a legal inference. Ordinary care, reasonable time and probable cause, the facts being established or proved, áre questions of law to be decided by the court: Biles v. Holmes, 11 Ired. Law Rep. 16; Heathcock v. Pennington, Id. 640; Herring v. Will. R. R. Co., 10 Id. 402; Dascomb v. R. R. Co., 37 Barb. 221; Purvis v. Coleman, 1 Bosw. 321; Weidler v. Farmers’ Bank, 11 S. & R. 134; Catawissa R. R. v. Armstrong, 2 P. F. Smith 286. A plaintiff, claiming damages for negligence, must make out a case resulting exclusively from defendant’s negligence: Waters v. Wing, 9 P. F. Smith 212; Railroad Co. v. Norton, 12 Harris 465; Heil v. Glanding, 6 Wright 493.
    It is not necessarily negligent for a passenger to ride upon the platform of a car: Meesel v. Lynn R. R. Co., 8 Allen 234; Willis v. Long Isl. R. R. Co., 32 Barb. 397; Clark v. R. R. Co., Id. 657; Colegrove v. R. R. Co., 6 Duer 382 ; Shearman & Redfield Neg. 284 and 326.
    Stepping on or off a car of any kind while in motion is almost always considered to be negligence, and it must be a very peculiar case in which a passenger can recover for an injury suffered under such circumstances: Shearman & Redfield on Neg. 281, 319; Lucas v. Taunton, 6 Gray 64 ; Nichols v. Sixth Avenue Railway Co., 38 N. Y. 131; Willis v. Long Isl. R. R. Co., 32 Barb. 404. As to the plaintiff’s infancy : Hughes v. Macfie, 2 H. & C. 744 ; Mangan v. Atterton, Law Rep. 1 Ex. 239 ; Shear. & Red. Neg. 53, §49.
   The opinion of the court was delivered, January 26th 1874, by

Mercur, J.

The first assignment of error is not according to the rules. All the other assignments are to the charge of the court, and will be considered together. As a general rule a question of negligence must be submitted to the jury. It should be where there is any substantial doubt as to the facts, or to the inferences to be drawn from them: Pennsylvania R. R. Co. v. Barnett, 9 P. F. Smith 259; Johnson v. Bruner, 11 Id. 58; McKee v. Bidwell, 24 Id. 218.

There is no absolute rule as to what constitutes negligence. It is dependent upon the particular circumstances of the case. Where the measure of duty is not unvarying; where a higher degree of care is demanded under some circumstances than under others; ■where both the duty and the extent of its performance are to be ascertained as facts, a jury alone can determine what is negligence, and whether it has been proven: McCully v. Clarke et al., 4 Wright 406; Pennsylvania Canal Co. v. Bentley, 16 P. F. Smith 30. Where the measure of duty is ordinary and reasonable care, it is always a question for the jury : West Chester & Philadelphia R. R. Co. v. McElwee, 17 P. F. Smith 311. Where negligence is concurrent, a child will not be held to the exercise of the same degree of care and discretion as an adult: Rauch v. Lloyd et al., 7 Casey 358; Pennsylvania R. R. Co. v. Kelly, Id. 372; Smith v. O’Connor, 12 Wright 218; Oakland Railway Co v. Fielding, Id. 320; Glassey v. H., M. & F. Passenger R. R. Co., 7 P. F. Smith 172; Kay v. Pennsylvania R. R. Co., 15 Id. 269.

Now let us apply the law to the facts in this ease. The plaintiff was a child of the age of thirteen years. He and his companion, a boy of the same age, signalled the driver as the defendants’ car crossed Thirteenth street. The car was slackened to receive them ; they stood there by the side of the driver all the way out to Eorty-first street and Lancaster Avenue. No objection was made by either the driver or conductor to their riding there; neither of them requested the plaintiff to step inside of the car ; the conductor came to him and collected his fare; at Eorty-first street and Lancaster Avenue, the plaintiff said to his companion in a voice sufficiently loud for the driver to hear, “I am going to get off here.” The speed of the car was thereupon slackened; the plaintiff took hold of the dasher with one hand, and the iron on the car with the other, and stepped off; the car continued in motion; the plaintiff’s foot slipped; he retained his hold to save himself; he was dragged two or three yards, and until the front wheel ran over his foot, causing the injury of which he complains. There was a crossing in the street where he desired to get off.

In view of the plaintiff’s age, we think this evidence should have been submitted to the jury ; the jury should have determined whether the plaintiff had been guilty of negligence. He should be held to tbe exercise of that degree of care and discretion ordinarily to be expected of a child of his age, neither more nor less: Smith v. O’Connor, supra. So in regard to the defendants’ alleged negligence. As the plaintiff was suffered to stand upon and get off from the front platform, it should have been submitted to the jury to find whether the defendants, under all the facts, exercised proper care in not sooner stopping the car. It is the duty of a railway company to cause its cars to come to a full stop, to permit a passenger to get off. Whether the defendants properly discharged this duty with a due regard to the age of the plaintiff, and of the notice of plaintiff’s desire to leave the car, should have been left to the jury. We think the learned judge erred in directing that the verdict should be for the defendants. The errors are sustained.

Judgment reversed, and a venire facias de novo awarded.