The certiorari brought up the record of a summary conviction of defendant for a violation of the compulsory attendance provisions (sections 1414-1423) of the School Code. To this record a number of exceptions have been filed.
At the very outstart, our right to entertain this cause is challenged by the Commonwealth, which contends that since section 1423 of the School Code provides for an appeal from the sentence of a justice of the peace to the Court of Quarter Sessions, a certiorari cannot issue out of the Court of Common Pleas; that is to say, the only remedy for a review is that designated by the Code, and no authority being thereby granted to the Court of Common Pleas to review by certiorari, such authority does not exist. But this contention fails to discern the source of our jurisdiction. Our power to review upon certiorari is not derived from statutes. It is conferred by the Constitution: “The judges of the Court of Common Pleas . . . shall have power to issue writs of certiorari to justices of the peace . . . and to cause their proceedings to be brought before them and right and justice to be done:” Article V, § 10. This power, vested in us by the Constitution, cannot be taken from us even by express legislation: Com. v. Hopkins, 241 Pa. 213, 218, obiter; and we certainly cannot interpret a statute which merely provides a method of appeal in such manner that the legislation will have accomplished by indirection and implication that which it could not have done by direct and express enactment. The same provision also disposes of the further contention of the Qommonwealth, that since by the act appeals lie to the Court of Quarter Sessions, only that court can issue writs of certiorari. The plain terms of the Constitution make this proposition obviously untenable, and it seems hardly necessary to add that organic acts creating the Court of Quarter Sessions grant no authority to issue writs of certiorari. Vide Acts of June 16, 1836, § 16, P. L. 784, and March 31, 1860, § 32, P. L. 427.
The first exception is: “The record does not contain the evidence or the substance of the evidence of any of the witnesses who testified.” An examination of the transcript supports the exception. The transcript states that certain persons, naming them, were called and sworn on behalf of the Commonwealth, but it does not state the facts to which they testified. The transcript need not set out the testimony in full: Com. v. Borden, 61 Pa. 272;
Accordingly, the first exception must be sustained. Inasmuch as this conclusion requires us to reverse the judgment, an examination of the remainder of the numerous exceptions (many of which seem to be meritorious) is not now necessary.
Now, Dec. 19, 1921, the first exception is sustained; the judgment is reversed and set aside.
From James L. Sehaadt, Allentown, Pa.