Various

H. V. BLAXTER ALLEN H. KERR, Collaborator MEMBERS OF THE ALLEGHENY COUNTY BAR

To fifty-nine aldermen is taken practically all the minor litigation of the four to five hundred thousand persons in Pittsburgh. To them the law entrusts all the preliminary matters connected with criminal prosecutions. To the educated public these courts are little known, perhaps because the amounts involved in litigation are small,—never over $300,—or because the proceedings are criminal in nature. But to the majority of Pittsburgh's vast army of foreign born, the squire's office is the only contact with law or justice. It is here that the wage earner, the alien, the Slav or the Lithuanian, comes first in criminal matters; it is here that the ignorant and illiterate enter their civil suits. This is the court of the people, such as it is.

Viewed thus, the aldermanic system is lifted from insignificance to rank as a vital question of municipal government. An ancient English system supplied the model, which aimed to decide small cases quickly and with substantial justice. But, as the system works out in Pittsburgh to-day, it for the most part achieves no such end and is a reproach to the community. For Pittsburgh has been a city too busy for introspection. A crowded center echoing with the thunder of steel mills, vast industries giving employment to alien laborers, the insistent cry of "tonnage" and the absorbing demands of business, have offered little opportunity for social study or civic experiment. It is not that Pittsburgh is derelict; her charities are many and generously supported, but Pittsburgh is busy, very busy, and the public have not taken time to think. Nowhere is this ignorance of home conditions more apparent than in the matter of the courts, and especially of the aldermanic courts which are to be considered here.

Before aldermen, informations or the formal charges of crime are made. Warrants for arrest issue from their offices. Hearings are held, the defendant is committed to jail, or bail is allowed. Summary convictions may be had before them, so that not only property but personal liberty is subject to their decisions. What this means can readily be understood when it is known that in 1908, 15,879 persons were incarcerated in Allegheny county.

To begin with, the whole aldermanic system is an anomaly in the growth of institutions. It is taken from the middle ages, only partly altered, cut, and fitted to modern conditions and a freer people. The origin of the office is obscured in antiquity. In Gothic times they had conservators of the peace, whose duty was, as the name implies, that of keeping the public peace; and during the troublous times when Queen Isabel deposed her husband and put Edward the Third on the throne, the King, fearing a general uprising, sent out writs of peace to all the sheriffs, and Parliament ordained that good men and true be assigned to keep the peace. At the foundation of the Colony of Pennsylvania, the office of justice of the peace was brought over from England, and became an integral part of our governmental institutions. Under successive state constitutions the power of the aldermen and justices of the peace has been gradually enlarged, and their jurisdiction greatly widened. Aldermen are elected for a term of five years. Formerly their jurisdiction was limited to amounts under forty shillings, but gradually it has been increased to $300. In cases where the amount involved is less than $5.33, the equivalent of the old forty shillings, there is no appeal from an alderman's decision. Litigants for so small an amount are in most instances very poor, and a hardship is wrought when such cases are wrongly decided. Another very radical disadvantage of this provision is that it permits the use of such tribunals for purposes of spite and oppression. A landlord recently refused to relet a tenement. An altercation followed which ended in the tenant's saying that he would get even at the squire's office. Thereupon he entered suit for five dollars for an imaginary debt. At the hearing this debt was denied by the landlord. No proof was offered that it existed; nevertheless the justice promptly awarded a judgment for five dollars, and, the amount being less than the old forty shillings, the landlord had no choice but to pay.

The very topography of Pittsburgh has influenced the growth of aldermanic litigation. The business district is crowded into a small triangle, hemmed in by two rivers. In consequence the aldermen in the four wards comprising the business section get a tremendous clientele. Furthermore the city has been redistricted and in the future there will be but twenty-seven aldermen, one for each of the new wards, instead of fifty-nine as heretofore. When it is known that some of the downtown aldermen make $12,000 a year from fees, under the present ward arrangement, an idea can be gathered of what will be the income of the aldermanship under the new districting which throws the heart of the business area, approximately the first four former wards, into one new ward. Of course ward lines are important only in the election of aldermen, for once elected their jurisdiction properly exercised extends over the whole county. A case may be put in the hands of any alderman whom the plaintiff may desire.

In appearance the average alderman's office is not prepossessing. A counter flanked by a railing, a few chairs, a safe and a number of dockets, compose the usual furniture. The floor is nearly always bare, generally dirty, while outside the appearance of the office is much that of any shop desiring customers. Often an electric sign or gaudy lettering on the building, or other similar device is employed to make the location of the office conspicuous. With few exceptions, the offices are on the lower floors, usually opening like a store directly on the sidewalk. Where the ward boundaries permit, they are put on the main thoroughfares, sometimes so close together as to be within sight of one another, which naturally results in the sharpest kind of competition. The more progressive aldermen indulge in advertising and it is a common sight to see blotters emblazoned with the name or the alderman, his address and telephone numbers, distributed among the downtown offices. Yet these are state judicial offices presiding over subordinate courts!

Each alderman has a constable who is elected at the same time and in such ways as makes the office largely political in complexion. In many offices the alderman and the constable do all the work. But in the downtown offices there are usually in addition to the alderman, a docket clerk, a writ clerk, and perhaps two deputies. The constable is not only the major domo, but usually the business getter of the outfit. It is he who mingles with the people of the ward and steers litigation in the direction of his employer. All this is to his benefit, because, like the alderman, his income is derived from fees. Such constables have often made as much as twenty dollars a day in the sections of the city settled by foreigners, but this is not the rule now, partly because the aliens are less ignorant and partly because of the influence of many national, fraternal and charitable organizations. However a conservative estimate of the income of the downtown constables at the present day would be $3,000.

The business of an alderman is to get customers, try cases, prepare informations, execute commitments and various other legal documents.

In civil cases, it follows from the very organization and jurisdiction of aldermanic courts, and the fact that the litigant may choose his tribunal, that the aldermen are often called upon for legal advice and opinions even in advance of the actual litigation. Each alderman knows that if he advises the complainant that he has no case another alderman will be consulted. If the latter advises suit the costs will go to him. As an alderman depends for his living on fees from litigation instituted in his court, it is not hard to find one who will tell you that you have a good case.

Not long ago a landlady and two boarders,—a man and his wife,—became involved in a teapot tempest, during the course of which the landlady pointed a revolver at her boarders. A squire was consulted, who advised an information for surety of the peace. The proceeding under an act of assembly for pointing firearms would perhaps have been proper, but there was clearly no case of surety of the peace. The case came up for hearing and after a long dissertation couched in legal verbiage the squire pronounced his judgment that the case be discharged and the costs divided. The plaintiff, who was represented by an attorney, immediately refused to pay and asked the squire what he was going to do about it (by act of assembly execution cannot issue for costs alone). The squire was nonplussed, and called in his constable. After a whispered consultation, he announced that he had reconsidered and that his final judgment was that the case be discharged and the costs put on the defendant. By this time the defendant had got her cue. She refused to pay, and asked the squire what he was going to do about it. Another whispered consultation followed while the squire scratched his head in perplexity. Another reconsidered judgment was given, this time that the case be discharged and the costs put on the county.

Not only do the aldermen give advice concerning prospective cases, but they solicit business and it is very common for them to hold themselves out as collecting agencies. Some aldermen who make a specialty of such work have a printed form reading:

Claim against you for $________ has been put in my hands for collection. Pay at once and save yourself costs.

If the claim is paid without suit a percentage charge is made for the service; if the defendant ignores the notice the alderman will enter suit. In short, we have here the anomaly of a state judicial officer whose living depends on the business he can drum up, and who can be both counsel, judge and prosecutor. From this it results that when a case is brought in an alderman's court, the alderman, the judge, considers himself in the employ of the plaintiff.

At a recent hearing before an alderman, who is without exception one of the most upright and efficient in the city, the evidence of the plaintiff was very uncertain while that of the defendant was clear and convincing. The squire "reserved judgment," which means that he did not wish to give his decision in the presence of both parties. The case had been conducted by an attorney who controlled considerable aldermanic business, and this attorney not long after reaching his office was called to the telephone by the alderman who said in substance:

"Now look here Mr.——, if you think you ought to get that money in that case of yours I will pay it myself, but I really cannot find for the plaintiff because I honestly think the defendant has a good defense." Only an incident, but what a flood of light it throws on the attitude of the alderman toward the plaintiff.

Few cases are decided otherwise than in favor of the plaintiff. Exactly what proportion can never be known, because our courts have decided that the dockets of aldermen are private records and not open to inspection by the public. One judge on the Common Pleas Bench, a man who has wide experience in such matters, when asked if he thought that as much as one per cent of the cases are decided other than in favor of the plaintiff, replied, "No, not nearly." As a matter of fact judgment is so universally given for the plaintiff that a defendant who has had any previous experience, does not take the trouble to appear at the hearing, but if he desires to contest the matter, takes an appeal from the alderman's decision.

It is a wise requirement of law that a plaintiff must make out his case affirmatively, proving all the matters essential to constitute liability on the part of the defendant. It is a matter of common knowledge, however, that aldermen give judgment on evidence of the most meager kind. A copy of a bill, its correctness unsworn to, left with the alderman is a common way of obtaining judgment for goods sold and delivered. Suits may be entered before more than one alderman, and in such cases although but one execution may issue, a defendant can be harried by threats and a multiplicity of summonses. In such cases, aldermen and their constables although legally without power, may when in league with unscrupulous creditors, be the cause of the greatest injustice. Cases have been known where constables, although knowing that a levy could not be made, would, nevertheless, frequently visit the house of the defendant, post notices of sale, demand admittance in the middle of the night, and in many other petty ways harass the defendant in the hope of forcing the payment of their costs. It is well known that much hardship is done in Pittsburgh through the instrumentality of what are known as "loan sharks," who lend small amounts at usurious rates of interest, taking as security assignments of future wages, bills of sale of household furniture, and other personal belongings. The defendants in such cases, although they are protected by law, are usually poor and ignorant, have little knowledge of legal procedure and fall an easy prey to the threats of such unscrupulous creditors. It can readily be understood how much such usurers are assisted by unscrupulous aldermen and constables.

Primary in importance to the alderman is the problem of getting his costs. Not long ago a well-to-do man residing in the residential section bought some cider from a huckster and ordered some apples. The cider was left in the barrel and the apples were to be brought the following day. When they came they were refused because of their poor quality. The huckster in a rage demanded the barrel in which he had left the cider, although both the apples and the cider had been paid for. He was told he could have it in a day or two, as soon as it could be emptied. He left to seek the advice of a squire who advised him to make an information for larceny by bailee (the technical term meaning larceny of goods temporarily in one's possession). He did so and a warrant was issued for the defendant's arrest. He was arrested and appeared at the alderman's office with bondsmen. Bail was refused by the alderman on one pretext and another and the defendant was told that if he would pay the costs the alderman would see to it that the whole matter was dropped. Before the hearing the squire had gone to the defendant's business office and told him that if he would pay the costs the matter could be fixed. Needless to say, rather than spend a night in jail while new bail was being secured, the victim paid the costs, preferring to be mulcted a few dollars than to incur the notoriety and annoyance of carrying the matter to a higher court.

Under such manipulation it is not difficult to see how large a volume of litigation may be instituted in the aldermanic courts. Of course this case is exceptional and there are many aldermen who never seek business or advise frivolous litigation, but even without it the volume of business is incredibly large. Some of the downtown aldermen have had as many as 500 civil cases brought in their courts in a month. Of course if there is any real controversy involved the case is appealed, but in practically all the cases the costs are paid either on appeal or by execution, the law making costs a first lien on the fund realized. A compilation of the costs paid in three hundred cases shows the average costs in each case to be $3.74. Formerly these costs had to be paid before the appeal could be taken, but by a late act an appeal can be taken without payment of the costs, if satisfactory bail be given for debt, interest and costs. However, the act works little benefit, because the alderman is the judge of the sufficiency of the bail and has it in his power to reject bondsmen until it is quicker and easier to pay the costs than bother over the allowance of bail. So that, as a matter of fact, the costs are always paid on appeal. Taking the downtown aldermen's offices where the cases sometimes number 500 in a month, the income from fees would be about $1,800 a month, which after allowance for fixed charges would leave a monthly profit to these downtown aldermen of about $1,000 in civil suits alone.[5]

To these fees, to form some estimate of the income derived from some alderman-ships, should be added the costs paid in criminal cases which an average of one hundred cases taken at random from the criminal docket of a prominent downtown alderman show to be $4.15 in each case. In criminal cases, if the defendant is discharged the alderman's costs are paid by the county. This procedure further adds to the revenue of the office. In 1907 the county paid to the various aldermen and justices of the peace the sum of $17,884.40 for costs in such discharged criminal cases, and to sundry officers in such cases $8,840.05, or a total of $26,724.45. To one alderman alone, having an office in a downtown section largely settled by Negroes and the poorer classes, $1,711.55 was paid in 1907 by the county as costs in such discharged criminal cases brought in his office. For miscellaneous work, criminal and otherwise, fees are paid in accordance with a schedule set by a recent act of assembly, that of 1893. Some of the main items are given below.

It is evident that the office is lucrative, and lucrative just in proportion to the ability of the alderman to get customers. The anomaly extends to every branch of the office,—a state judicial officer with an income depending on the volume of the litigation instituted in his office.

It was a wise provision of the Legislature that permitted appeals by right, rather than by allowance, providing the amount involved is over $5.33. Practically all cases therefore involving any real controversy are appealed. A defendant is given twenty days in which to take his appeal. The procedure is simple, a transcript or copy of the alderman's record is obtained, the costs paid or bail given for debt, interest and costs, and the transcript then filed in the higher court where the case is begun over again just as if it had not been already tried. As the discretion of the alderman in allowance of bail is a factor, the costs are generally paid at the time the appeal is taken. In any case, they must be paid then or when the appeal is disposed of. If they are not paid at the time the appeal is taken, when the case is disposed of in the higher court, the alderman's costs are kept out of the amount realized and may be demanded by the alderman, his transcript being the evidence from which the higher court determines what disposition has been made of the costs. Cases have come to the writer's attention where although the costs were paid at the time of taking the appeal yet the alderman's transcript has been endorsed, "Costs not paid by defendant." If such a transcript were filed without the detection of the error, upon final disposition of the case the alderman would be in a position to demand his costs a second time from the prothonotary of the higher court and receive double pay.

Remembering that every case appealed from an alderman is retried, with costs to be paid over again, it is interesting to consider how much time is occupied by the Common Pleas Courts in such review work. In Allegheny there are four Common Pleas Courts. As the courts are separate and independent, litigation may be commenced in any one of them. So great has been the litigation in recent years that all these courts are far behind in their work, two being at least four years behind, the others at least two. Taking at random a term,—three months' business,—in one of the courts which is four years behind, we find 1,342 docket entries. It would be safe to say that about 1,000 entries would represent new suits, which should in due course result in jury trials. Of these 322 were cases appealed from aldermen, i. e. work already done and paid for, to be done over again. In these cases counting the costs actually paid we have a total of $1,322.08, and this in one term of one court. There are four terms to each court and four courts. The time occupied in retrying appeals from aldermen can be appreciated. In 1897 it was estimated that one-fourth of the work of the Common Pleas Courts consisted of the re-trial of such appeals with an aggregate of about $12,000 paid for costs in such cases prior to their determination in the Common Pleas Courts. From the figures previously given it appears that the proportion is about the same now although the increase in the volume of litigation has swelled the costs to about $15,000.

Taking four consecutive terms, one at each court, we find 667 alderman's appeals in the two courts which are four years behind, and 105 alderman's appeals in the two courts which are two years behind. By law an affidavit is required with each appeal that it is not taken for delay, but the above figures indicate that this oath is disregarded. So much for civil matters, where only money and time are involved. It is the criminal side of the alderman's court where liberty is involved, that arouses greatest sympathy. Summary convictions, or proceedings under special statutes where the aldermen can impose a fine and commit to jail on default, and proceedings for the determination of the existence of the essentials of a crime, comprise the criminal jurisdiction of an alderman just as it stood in the reign of Edward III in the fourteenth century.

Criminal proceedings generally are instituted by a warrant of arrest issuing upon a complaint under oath,—an information. From this information made before the alderman a warrant issues on which the accused is taken into custody. A hearing must then promptly be held; and the alderman decides whether there is sufficient evidence to hold the defendant for court; if so the prisoner is held for bail if the offense is bailable, or committed to jail in default. The alderman must then within five days return a transcript of this proceeding to a clerk of the Court of Quarter Sessions, this court being the criminal court of the county. Considerable hardship may be done by the failure of the alderman to return his record within the five days required by law; cases have been known where through neglect prisoners have been kept in jail a month before the matter has been brought to the attention of the district attorney's office and the alderman made to produce his papers. It will thus be seen that although the alderman acts in this respect only as a committing magistrate, yet on his decision rests whether the prisoner be committed to jail; for although the offense may be bailable the question of bail in the case of poor people is very material. The writer has known cases where bail has been set at $1,000 on an information for assault and battery.

The power to arrest is a very important one which under any circumstances should be exercised only with sound discretion. One constable in Pittsburgh arrested a foreigner at night. Having no warrant he took him to an alderman's office, where he found the alderman out, and pretentiously used the telephone to locate him, with no results. Then substantially the following conversation took place:

"Now —— you, I will be the squire myself," taking his place behind the railing.

"How much money have you?" The prisoner was found to have a few dollars on his person.

"Well you are fined $—— (the exact amount the prisoner had with him) and discharged. Now get out."

The fine was pocketed and the prisoner permitted to go. It is probable that the constable was drunk, but the abuse is only the more apparent.

In another case an educated German was studying manufacturing methods and spent much time in the neighborhood of the steel mills. One evening he saw an alderman's constable, whom he knew by sight, on a street car handcuffed to a prisoner. With Teutonic curiosity he asked the details of the case. The constable, who was under the influence of liquor, beckoned the German over to him and deftly handcuffed him also. The German, of course, thought the affair a little joke. He was, however, taken to jail, but refused by the warden, because there was no warrant for his confinement. The constable then took the prisoner outside, and when they reached Diamond street asked him how much money he had. The German really had $600 or $700 on his person, but replied that he had only a few dollars, producing some bills and small change. The constable told him he would release him for $3.50. This the German paid and got his liberty. The latter was leaving the city the next day and, as he was a steel expert representing a foreign government, could not possibly remain to prosecute the constable. It is not likely that such abuses are common, but their existence indicates the possibilities of abuse of a system which provides for no form of supervision.

There are costs connected with all these criminal matters. These costs the defendant if guilty is supposed to pay. But the fact that an alderman entertains a frivolous information does not prevent his being paid for his work. If the case is discharged the county pays. If the prisoner is committed and the case ignored by the grand jury the county pays. The percentage of bills ignored by the grand jury is sometimes as high as seventy-two per cent. This means that seventy-two per cent of persons brought before the alderman have either been put in jail or held for bail on evidence not sufficient for the basing of an indictment. In all such cases the aldermen are secured in their costs, and as we have seen in 1907 the costs returned in such discharged criminal cases to the various aldermen and justices of the peace and sundry officers amounted to $26,724.45. Taking the year 1907, we find that for the support of the criminal court the county was put to a net expense of about $150,000. By law aldermen must pay over to the county all or sometimes a proportion of fines collected depending on the special act of assembly. These fines are supposed to be voluntarily accounted for, and up to very recently very little attempt was made to test the accuracy of such returns. In 1896, however, the county controller inaugurated a system of auditing the criminal dockets of aldermen for the better ascertainment of the county's share of such fines. The returns that year increased seventy-five per cent and have been increasing steadily ever since, although in 1907 the total amount returned to the controller in such cases was but $3,714.20.

In brief the whole aldermanic system is defective. At the threshold we find an office the income of which is derived from fees, depending upon the volume of business. Plaintiffs are customers, the more the merrier. Impartiality is impossible, and decision on merits almost unheard of. The fee system, which causes the injustice and corruption, has come down to us from colonial times, a relic of the days when the public purse was too lean to permit paying salaries to minor judicial officers. From a wise public economy this fee system has become, with the growth of the country, a source both of injustice and of extreme expense to the public at large. It should have been abandoned long ago, but through the indifference of the public and the political influence of the aldermen it remains and flourishes.

The second radical defect of the aldermanic system is that the office is mixed with politics. An effort was made a few years ago to abolish the aldermanic courts, and it is a matter of history how sudden a death the movement met at the state capital. One of the judges of the county bench in discussing the matter recently expressed the opinion that no act of assembly could be passed to remedy the situation, because of the political influence of the aldermen. It has been the boast of this country that the judiciary is not swayed by politics, but here in the subordinate courts we have a branch of the judiciary so steeped in politics that the squire's office as a campaign center and a place of political organizing rivals the saloon.

Third, we have the almost ludicrous case of judicial officers who with noteworthy exceptions are not learned in the law, are sometimes uncouth, generally ignorant, and have made their mistakes, not only in law, but in grammar, a source of constant lampooning. These are proverbial. The grave decisions of the higher courts that aldermen are state judicial officers presiding over judicial courts has a flavor of irony.

Fourth, the geographical distribution of these courts, and their concurrent jurisdiction, permit plaintiffs by taking their cases to the outlying wards to use aldermanic courts for purposes of annoyance and spite, permit competition among the aldermen, and result in a general demoralization.

We are driven to three conclusions: that the aldermanic system as found in Pittsburgh is always extravagant, that it is generally inefficient, that it is often corrupt.

Were the minor litigation handled by an efficient tribunal, not only would respect for law among the masses be restored, but the county courts would be relieved of a considerable portion of their work, and thus be enabled to clear their crowded calendars. This would remedy at one stroke an abuse, and solve a problem which occupies the attention of the whole bench and bar.

Pittsburgh is not alone in this problem. Conditions in Chicago a few years ago were similar. Their justice of the peace system had outgrown its justification, had become corrupt and woefully inefficient. Nothing had been done because of the political power of the justices and the necessity of an amendment of the state constitution. But the people took up the problem in a way that brought something about. The state constitution was amended, a municipal court organized, and as a result Chicago, in an incredibly short time, got rid of most of the evils of the old system. The Chicago solution was a municipal court of a distinctive type. A chief justice and twenty-seven associate judges with salaries, preside over a court having branches in the chief centers of the city. The court in its first six months disposed of 40,610 cases, of which but ninety-two were carried to the State Appellant Court.

The Pittsburgh problem is that of creating a system along lines which would serve Pittsburgh as well or better, and which would link efficiency with expedition, impartiality and economy,—a system which would obtain immediate justice for the poor and the uninformed, and would remedy the overworked condition of the county courts. Such a system would save the public thousands of dollars a year.