Appeal of Locke

• Decision Date: 17 March 1873
• Citation: 72 Pa. 491
• Parties: Locke's Appeal. v. Locke et al. Commonwealth ex rel. McClain
• Court: Pennsylvania Supreme Court

72 Pa. 491

Locke's Appeal.

Commonwealth ex rel. McClain v. Locke et al.

Supreme Court of Pennsylvania.

March 17, 1873

February 24, 1873

1. An agent cannot delegate to another a power conferred on him because of his fitness and the confidence reposed in him.

2. A legislature in a representative government cannot delegate to another body the power to make laws.

3. Whilst a legislature calls to its aid only the means of ascertaining the utility of a measure, and does not delegate the power to make the law, it is acting within its powers.

4. An act authorized voters to vote " for license" or " against license," the tickets to be counted and return certified to the Quarter Sessions; the voting, & c to be conducted as in other elections; when the returns showed a majority against license, it should " not be lawful for any license to issue for the sale of intoxicating liquors," & c. Any person who should be convicted of selling any intoxicating liquors without a license, should be sentenced, & c. Held, that the act was constitutional.

5. Commonwealth v. Judges, 8 Barr 391; Moers v Reading, 9 Harris 188; Smith v. McCarthy, 6 P. F. Smith 359, followed. Parker v. Commonwealth, 6 Barr 507, overruled.

Before READ, C. J., AGNEW, SHARSWOOD, WILLIAMS and MERCUR, JJ.

Appeal from the Court of Common Pleas of Philadelphia: In Equity: No. 52, to January Term 1873.

The questions in this case arose under the Act of May 3d 1871 Pamph. L. 522, relating to granting licenses to sell intoxicating liquors. The parts of the act material to the case are as follows:

" Sect. 1. That at the next municipal election in the Twentysecond ward of the city of Philadelphia, and at the annual municipal election every third year thereafter, it shall be the duty of the inspectors and judges of election ____ said ward, to receive tickets, either written or printed, from the legal voters of said ward, labelled on the outside, license, and on the inside, for license or against license, and to deposit said tickets in a box provided for that purpose by said inspectors and judges, as is required by law in case of other tickets received by said election; and the tickets so received shall be counted, and a return of the same made to the clerk of the Court of Quarter Sessions of the city and county of Philadelphia, duly certified by the return judges of said ward, which certificate shall be filed with the other records of said court.

Sect 2. It shall be the duty of the constables of the said ward to give due public notice, by printed handbills, throughout the ward, of such special election above provided for, thirty days previous to the time of holding the next annual municipal election, at which time the question of license or no license will be submitted to the voters of said ward; also, thirty days' notice for the annual municipal election every third year thereafter.

Sect. 3. That in receiving and counting, and in making returns of the votes cast, the inspectors, judge and clerks of said election shall be governed by the laws of this Commonwealth regulating general elections; and all penalties of said election laws are hereby extended to, and shall apply to the voters, inspectors, judges and clerks acting at and in attendance upon the elections held under the provisions of this act.

Sect. 4. Whenever, by the returns of election in the Twentysecond ward of the city of Philadelphia, it shall appear that there is a majority against license, it shall not be lawful for any license to issue for the sale of spirituous, vinous, malt or other intoxicating liquors in said ward, at any time thereafter, until at an election as above provided, a majority of the voters of said ward shall vote in favor of a license.

Sect. 5. Any person who shall hereafter be convicted of selling, or offering for sale, in the Twenty-second ward of the city of Philadelphia, any intoxicating liquors, spirituous, vinous, malt or other intoxicating liquors, without a license, shall be sentenced to pay a fine of $50, and confinement in the house of correction or county jail for the period of six months for the first offence, and for the second and each subsequent offence, a fine of $100, and confinement in the house of correction or county jail for the period of one year."

An election under the provisions of the act was held in the Twenty-second ward, and a majority of votes having been cast against granting license, a bill in equity was filed in the Court of Common Pleas against Thomas Locke, James Bain and Alexander McCuen, city commissioners, to restrain them from granting license to any person to sell intoxicating liquors in the Twenty-second ward.

The court granted the injunction; the commissioners appealed to the Supreme Court, and assigned for error the decree granting the injunction.

The question discussed was the constitutionality of the Act of May 3d 1871.

G. W. Biddle and W. L. Hirst, for plaintiffs in error.--The legislature cannot delegate to the people power to enact new laws or to repeal existing laws which affect the property or bind the political or social rights of the citizen: Cooley's Constitutional Limitations 116, 117; Rice v. Foster, 4 Harrington 492; Parker v. Commonwealth, 6 Barr 507; People v. Stout, 23 Barb. 338; Barto v. Himrod, 8 N.Y. Rep. 483; State v. Swisher, 17 Texas 441; The Aurora v. United States, 7 Cranch 382; Thorne v. Cramer, 15 Barbour 112; Bradley v. Baxter, Id. 122; Johnson v. Rich, 9 Id. 68.

The authorizing municipal corporations to do certain acts, such as to contract particular debts, to subscribe to improvements, to impose taxes for local purposes, to pass by-laws, ordinances, & c., is no delegation of the law-making power, provided that no act thus authorized abridges or enlarges any of those rules of conduct that affect the social and political rights of a citizen: when they do so the law is pro tanto unconstitutional: Comm'th v. Judges of Quarter Sessions, 8 Barr 395; Parker v. Comm'th, supra; Comm'th v. Painter, 10 Barr 391; Cooley on Constitutional Lim. 116, 125; Commissioners v. Gas Co., 2 Jones 318; Ex parte Burnett, 30 Ala. 461; S.C. 32 Id. 728; Thorne v. Cramer, Bradley v. Baxter, Barto v. Himrod, supra; People v. Stout, 23 Barb. 338; State v. Copeland, 2 Rhode Island 30; Maize v. State, 4 Ind. 351; Santo v. State, 2 Iowa 206; Geebrick 5 Id. 493; People v. Collins, 3 Mich. 415; State v. Parker, 26 Verm. 336.

An act making it wholly illegal and penal to carry on a business lawful at common law, is a law affecting the property and the social and political rights of the citizen. The legislature cannot delegate the power to pass or repeal such a law, to any other body, much less to the people of a local district: Moers v. Reading, 9 Harris 188; Railroad v. Clinton Co., 1 Ohio N. S. 77; Ex parte Burnett, supra.

W. H. Rawle and Porter (with whom were W. McElroy and F. C. Brewster ), for appellants.--An act of the legislature is not to be declared void, unless the violation of the Constitution is so manifest as to leave no room for reasonable doubt: Com. v. Smith, 4 Binn. 117; Hilbish v. Catherman, 14 P. F. Smith 154; Bancroft v. Dumas, 21 Verm. 461; Wellington v. Petitioners, 16 Pick. 95; Respub. v. Duquet, 2 Yeates 493; Com. v. Zephon, 8 W. & S. 382; Sharpless v. The Mayor, 9 Harris 147; Speer v. School Directors, 14 Wright 158; Erie R. R. v. Casey, 2 Casey 287; Durach's Appeal, 12 P. F. Smith 495; Pennsylvania Railroad v. Riblet, 16 Id. 164.

This kind of law is a police regulation, being applicable only to a business which is hazardous or injurious to the citizens: People v. Hawley, 3 Mich. 330.

A writ of error to the same court by the Commonwealth at the relation of McClain and others, against Locke and others, city commissioners, was argued at the same time.

The error assigned in that case was the refusal of the court below to issue a mandamus to compel the commissioners to issue license to the relators.

The opinion of the court was delivered, March 17th 1873, by AGNEW, J.

That a power conferred upon an agent because of his fitness and the confidence reposed in him cannot be delegated by him to another, is a general and admitted rule. Legislatures stand in this relation to the people whom they represent. Hence it is a cardinal principle of representative government, that the legislature cannot delegate the power to make laws to any other body or authority. The true question in this case is whether the Act of May 3d 1871 (Pamph. L. 523), " to allow the voters of the Twenty-second ward of the city of Philadelphia, to vote on the question of granting license to sell intoxicating liquors," is a delegation of legislative power. This must be determined by an analysis of the provisions of the act itself; and depends, not upon the numerical order of the sections, but upon the nature of the legislative determination when the act left the hands of the Assembly. Whatever the legislature then determined to be is law, for so much was then a fixed and absolute resolve. What did the legislature then determine absolutely? It enacted in the fifth section that any person who shall hereafter be convicted of selling, or offering for sale, in the Twenty-second ward of the city of Philadelphia, any intoxicating liquors, spirituous, vinous, malt or other intoxicating liquors, without a license, shall be sentenced to pay a fine of fifty dollars," & c. The provisions of the first, second and third sections are equally imperative and absolute, and may be summed up in a few words, viz.: That a special election shall be held in the Twenty-second ward at the next annual municipal election, and every third year thereafter; that the constable of the ward shall give a certain notice of such special election, at which time the question of...