
    Commonwealth v. Leary.
    
      Automobile Act — Criminal law — Waiver of hearing before magistrate— Mandamus.
    
    1. One charged with violation of the Automobile Acts of June 30, 1919, P. L. 678, and May 16, 1921, P. L. 582, may waive a hearing before the magistrate and give bond for his appearance at court.
    2. If in such case the magistrate refuses to permit the waiver of a hearing, the court will, upon petition of the district attorney, issue a peremptory mandamus, requiring him to do so upon adequate bond being given.
    Petition for mandamus. C. P. Delaware Co., March T., 1922, No. 956.
    The petition filed on the relation of the district attorney fully states the facts and is as follows:
    
      1. That William J„ Leary is the duly elected and qualified alderman for the 8th Ward of the City of Chester, county aforesaid, and is serving as such.
    2. That on March 17, 1922, D. Harvey Sykes, constable of the said city, appeared before the said alderman, William J. Leary, and made formal complaint against one Harold Thomas Aucott, charging him with violating, on March 11, 1922, in the City of Chester, the provisions of section 20 of the Motor Vehicle Act of June 30, 1919, P. L. 678, as amended by the Act of May 16, 1921, P. L. 582. A copy of said complaint is hereto attached and made a part of this petition and marked “Exhibit A.”
    3. That on or about March 23, 1922, the said Harold Thomas Aucott received by mail from the said Alderman Leary a notice to appear before him for a hearing on the said charge on March 25, 1922, at 10 o'clock A. M. A copy of the said notice is hereto attached, made a part of this petition, and marked “Exhibit B.”
    4. That the said hearing was not held on March 25, 1922, but was continued from time to time, and May 19, 1922, at 3 P. M., has been finally fixed by the said alderman as the time for the said hearing,
    5. That on April 27, 1922, the said Aucott appeared before the said Aider-man Leary, waived a summary hearing on the aforesaid charge, and offered adequate and good and sufficient bond in a sum equal to double the amount of the maximum fine that might be imposed, to wit, $50, conditioned for his appearance for trial before a judge of the Court of Quarter Sessions of Delaware County, Pennsylvania, and offered as surety on the said bond the Delaware County Trust Company, which was present by its proper officer and ready and willing to execute the said bond as surety.
    6. It thereupon became the duty of the said alderman to accept the said bail bond as offered, but the said alderman, notwithstanding said duty, refused to accept said bond or permit the said Aucott to waive a hearing before the said alderman, but then and there notified the said Aucott that he (the said alderman) would proceed with a hearing of the said Aucott before the said alderman.
    7. That the duty of the said alderman in the premises is distinctly defined by section 33 of the Motor Vehicle Act of June 30, 1919, P. L. 678, as amended by the Act of May 16,1921, P. L. 582, which provides, inter alia: “That any person accused of violating any of the provisions of this act may waive the summary hearing and give bonds in a sum equal to double the amount of the maximum fine that might be imposed for appearance for trial before a judge of the Court of Quarter Sessions, or in the county court, or in the municipal court in counties where such courts exist, and thereupon the burgess, magistrate, alderman or justice of the peace shall, within fifteen (15) days, return the complaint or information to the said court.”
    8. That your petitioner is without other and specific remedy at law, and, therefore, prays that a writ of mandamus be granted and issued against the said William J. Leary, alderman, the defendant above named, directing him to accept sufficient and proper bond from the said Harold Thomas Aucott at or before May 19, 1922, at 3 P. M., the time fixed by the said alderman for a hearing on the aforesaid charge; and further directing that, in the event of such bond being so furnished, the ‘said alderman shall not proceed with a hearing of the said Harold Thomas Aucott on the aforesaid charge.
    
      J. B. Weeks, for petitioner.
    May 19, 1922.
   Johnson, P. J.,

And now, May 19,1922, let writ of peremptory mandamus issue as within. From A. B. Geary, Chester, Pa.  