Appeals, Nos. 147, 148 and 149, Jan. T., 1962, from judgment of Court of Common Pleas of Delaware County, Dec. T., 1960, No. 1426, in case of Commonwealth of Pennsylvania amended to read City of Chester v. Henry Elam, George Ramsey and Thomas Ramsey. Judgment reversed.
Jack Brian, for appellants.
Philip A. McMunigal, Jr., Assistant City Solicitor, with him Joseph W. deFuria, City Solicitor, for City of Chester, appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. JUSTICE COHEN
In 1960, appellants were arrested and brought before a magistrate in the City of Chester (City) and charged with disorderly conduct under an ordinance of City. At the time of their arrest, one of the appellants possessed a concealed steel bar and another had a blackjack.
After a hearing, the magistrate found all three appellants guilty of disorderly conduct under City Code of Chester, Section 19-8, which reads as follows: "Any person who creates or participates in a disturbance, or in a disorderly assembly, in any street, house or place in the City shall upon conviction before the Mayor, committing magistrate or any Alderman of the City, be fined not less than $5, nor more than $300 for any one offense, recoverable with costs together with judgment of imprisonment not exceeding 90 days, if the amount of such judgment and costs shall not be paid." Each appellant was fined $300 and costs which was later reduced to $50 apiece. Two of them paid their fine and costs and the third served thirty days in the county prison.
Subsequently, appellants filed a petition for a writ of certiorari to the court below which allowed the writ. The magistrate filed his transcript of the proceedings with the lower court and appellants filed their exceptions to the record. After argument, the court en banc
handed down its opinion and decree dismissing the writ of certiorari and sustaining the action of the magistrate. The instant appeals followed.
The ordinance under which appellants were prosecuted and convicted was passed prior to the adoption of the amendments to The Third Class City Code by the Acts of 1947, June 10, P.L. 494, and 1951, June 28, P.L. 662, 53 P.S. § 37403(55), which authorize third class cities: "To define disorderly conduct within the limits of the city and to provide for the imposition of penalties for such conduct. ..."
There is no serious dispute here that were this the sole factual consideration, the exceptions to the record of the magistrate would have been sustained and the conviction and imposition of sentence reversed. This is necessarily so since City, like all other third class cities, did not have the power to create by ordinance the offense of disorderly conduct prior to passage of the Acts of 1947 and 1951. City of Johnstown v. Troutman, 60 Pa.D. & C. 1 ...