Appeal, No. 123, Oct. T., 1963, from order of Court of Quarter Sessions of Chester County, Sept. T., 1961, No. 225, in case of Commonwealth of Pennsylvania v. Jay Giaccio. Order reversed.
John S. Halsted, Assistant District Attorney, with him Samuel J. Halpren, District Attorney, for appellant.
Peter Hearn, with him James C. N. Paul, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 202 Pa. Super. Page 296]
This is an appeal by the Commonwealth from an order of the Court of Quarter Sessions of Chester County vacating a sentence to pay the costs of a criminal prosecution. The sentence had been imposed upon a defendant after a jury had found him not guilty of the misdemeanor with which he was charged, but had directed him to pay the costs of prosecution.
[ 202 Pa. Super. Page 297]
The defendant was charged with wantonly pointing and discharging a firearm in violation of The Penal Code of June 24, 1939, P.L. 872, § 716, 18 P.S. § 4716.
The legislature has provided for the disposition of costs in misdemeanor cases by providing, inter alia, that "... in all cases of acquittals by the petit jury on indictments for the offences aforesaid, the jury trying the same shall determine, by their verdict, whether the county, or the prosecutor, or the defendant, shall pay the costs, or whether the same shall be apportioned between the prosecutor and the defendant, and in what proportions; ..." Act of March 31, 1860, P.L. 427, 445, § 62, 19 P.S. § 1222. This was a reenactment of a substantially similar provision contained in the Act of December 7, 1804, 4 Smith's Laws 204, which was a temporary act, "continued and made perpetual" by an act passed March 29, 1809, 5 Smith's Law 48. Thus, the statutory law of this Commonwealth has permitted the imposition of costs upon acquitted defendants for over a century and a half.
The court below found that the above provision of the Act of 1860 permitting the imposition of costs upon on an acquitted defendant was unconstitutional for a variety of reasons. The court in its opinion suggested that the statutory provision is unconstitutionally vague; that it is an unconstitutional delegation of legislative power; that it violates the doctrine of dundamental fairness; that it affords no hearing; that it is a denial of the equal protection of the law; that it does not require proof beyond a reasonable doubt; that it provides for an unreasonable classification; and that it is an instrument of oppressive cruelty. To our knowledge, no court has ever found a Pennsylvania statute in such flagrant violation of the Constitution. If the statute were so flagrantly unconstitutional, it would indeed be a sad commentary upon the scores of appellate court judges who have examined the provision and
[ 202 Pa. Super. Page 298]
the hundreds of trial judges who have applied it without seeing in it any of the infirmities conceived by the court below.
The validity of a statute imposing costs upon an acquitted defendant was before the Supreme Court in Commonwealth v. Tilghman, 4 S. & R. 127 (1818), where Mr. Justice GIBSON prophesied that the provision in the Act of 1804 would "prove highly beneficial" even though it, "at first view, may appear unjust." One hundred thirteen years later Judge KELLER, speaking for this Court said of the provision imposing costs upon acquitted defendants, "However anomalous the course may appear to jurisdictions unfamiliar with our procedure, it is the law of this Commonwealth and it works substantial justice." Commonwealth v. Cohen, 102 Pa. Superior Ct. 397, 401, 157 A. 32 (1931).*fn1 Between these two decisions the statutory provision here questioned was examined by the appellate courts, and its use approved many times: Harger v. Commissioners of Washington Co., 12 Pa. 251 (1849); Baldwin v. Commonwealth, 26 Pa. 171 (1856); Commonwealth v. Keenan, 67 Pa. 203, 207, 208 (1871); Linn v. Commonwealth, 96 Pa. 285 (1881). In Commonwealth v. Tremeloni, 93 Pa. Superior Ct. 432 (1927), this Court reversed the court below which had set aside the costs imposed upon a defendant by a jury.
In addition to the above cases which affirmed the imposition of costs upon acquitted defendants, other appellate court cases have recognized the legality of the provision. For examples see, County of Wayne v. Commonwealth, 26 Pa. 154 (1856); Commonwealth v. Kocher, 23 Pa. Superior Ct. 65 (1903); Berks County v. Pile, 18 Pa. 493 (1852). The provision here questioned was examined and applied in scores of lower
[ 202 Pa. Super. Page 299]
court cases, including Commonwealth v. King, 33 Pa. D. & C.2d 235, decided this year.*fn2
Our Supreme Court has passed upon the constitutionality of the provision of the Act of 1860 imposing costs upon an acquitted defendant. In Wright v. Commonwealth, 77 Pa. 470 (1875),*fn3 the appellant, who had been acquitted of a misdemeanor but sentenced to pay the costs, contended that § 62 of the Act of March 31, 1860, P.L. 427, 445, supra, was unconstitutional. The Supreme Court rejected the contention and affirmed the sentence imposing the costs upon the defendant. In the argument before us it was suggested that cases decided prior to the 14th Amendment to the Federal Constitution and prior to the adoption of our Constitution of 1874 are of little authority in presently considering the constitutionality of the statutory provision here being attacked. The argument is not pertinent for our Supreme Court has upheld the constitutionality of the questioned statutory provision after the adoption of Pennsylvania's present constitution and after the adoption of the 14th Amendment to the Federal Constitution.
The Supreme Court has sustained the validity of the Act of 1804 and the Act of 1860. When the validity of a statute is attacked and a decision rendered sustaining it, there is a presumption that all existing reasons for declaring the act unconstitutional were considered and deemed insufficient. Keator v. Lackawanna
[ 202 Pa. Super. Page 300]
Law § 17 and cases there cited will demonstrate how far our own courts have gone in applying this rule.
The defendant in this case has a heavy burden to set aside the verdict of his peers based upon a statute of the legislature. As stated by Mr. Justice COHEN in the case of Realty Corp. v. Philadelphia, 390 Pa. 197, 205, 134 A.2d 878 (1957), "No act or portion thereof should be declared unconstitutional unless 'it violates the Constitution clearly, palpably plainly; and in such manner as to leave no doubt or hesitation in our minds.' Kelley v. Baldwin, 319 Pa. 53, 54, 179 A. 736 (1935); Sablosky v. Messner, 372 Pa. 47, 59, 92 A.2d 411 (1952)." "The burden of proof is upon the one who claims that the statute is unconstitutional." Commonwealth v. Bristow, 185 Pa. Superior Ct. 448, 458, 138 A.2d 156 (1958).
We know of no Pennsylvania statute whose validity has been attacked after so many years of constant application. Since the Act of 1804, two new constitutions have been adopted and scores of amendments have been made to the present constitution.*fn4 There have been over a hundred regular sessions of the legislature and a score of special sessions since the Act of 1804 was enacted. Hundreds of judges have examined and passed upon the statutory provision here questioned. As stated by Mr. Justice AGNEW, and repeated by the Supreme Court in Booth & Flinn, Ltd. v. Miller, 237 Pa. 297, 306, 85 A. 457 (1912), concerning a somewhat
[ 202 Pa. Super. Page 302]
similar situation, "The continued exercise of the power ... cannot be accounted for except on the ground that all men, learned and unlearned, believed it to be a legitimate exercise of the legislative power. This belief is further ...