Burgess and Town Council of Borough of Warren v. Geer

• Decision Date: 03 October 1887
• Docket Number: 177
• Citation: 11 A. 415,117 Pa. 207
• Parties: THE BOROUGH OF WARREN v. L. F. GEER
• Court: Pennsylvania Supreme Court

11 A. 415

117 Pa. 207

THE BOROUGH OF WARREN v. L. F. GEER

No. 177

Supreme Court of Pennsylvania

October 3, 1887

Argued May 26, 1887

ERROR TO THE COURT OF COMMON PLEAS OF WARREN COUNTY.

No. 177 July Term 1886, Sup. Ct.; court below, No. 120 December Term 1885, C.P.

This was an action in debt, originally before a justice of the peace and on appeal in the Court of Common Pleas, by the burgess and town council of the borough of Warren incorporated by act of April 3, 1832, P.L. 259, against L. F Geer, in which the declaration complained:

For that whereas the said borough of Warren was duly incorporated by an act of the General Assembly of the commonwealth of Pennsylvania, under the name, style and title of the burgess and town council of the borough of Warren, and being so incorporated, the said borough of Warren did afterwards, upon application to the Court of Quarter Sessions of the county of Warren, become subject to the restrictions and possess the powers and privileges conferred by the act entitled 'An Act regulating the boroughs," approved the third day of April, 1851. And for that the said burgess and town council of the borough of Warren did afterwards enact, ordain and approve the following ordinance for the government of said borough, to wit:

SECT 32. Every person canvassing from house to house in the borough of Warren for the purpose of selling or soliciting orders for books or pictures, gentlemen's shirts furnishing goods or clothing by sample, groceries to private houses by wholesale or retail, and pedlars of grapes or fish, and all transient dealers in furniture, wagons, carriages or sleighs, whether selling by sample or otherwise, shall take out a license from the burgess and pay the fees hereinafter required before doing or offering to do any business in the said borough.

SECT. 33. The fees for licenses under this ordinance shall be as follows: For book and picture canvassers, one dollar per day, or at the rate of four dollars and one half per week; for grape pedlars, one dollar per day; for pedlars of cut meats, twenty-five dollars per year; for agents selling gents' shirts, furnishing goods or clothing by sample or otherwise, three dollars per day; for fish pedlars, one dollar per day, or ten dollars per year; for furniture dealers, one dollar per day; for dealers in wagons, carriages or sleighs, three dollars per day. This ordinance shall not apply to those persons holding mercantile licenses within the borough, nor to persons resident in the county selling their own farm produce.

SECT. 35. If any person shall be guilty of violating any of the provisions of the foregoing ordinances, and shall be convicted of the same, before the burgess or any justice of the peace of this county, he shall be fined in any sum not less than three nor more than ten dollars, with all costs of suit; the same to be collected as similar debts are by law collected.

And for that the said L. F. Geer, on the thirtieth day of September last past, did violate the foregoing ordinance by canvassing from house to house, in the borough of Warren, without a license, for the purpose of selling and soliciting orders for books, and did solicit orders for a book of E. Beeman and other persons, contrary to and in violation of the ordinance aforesaid. Whereby, by force and virtue of the said ordinance, and the acts of assembly in such case made and provided, the said L. F. Geer became liable to pay to the said borough of Warren the penalty of ten dollars, in such ordinance provided. Yet, although being so liable, etc. . . .

To this declaration the defendant demurred, that it was not sufficient in law.

After argument the court, WM. D. BROWN, P.J., filed this opinion and judgment:

The declaration avers an ordinance of the borough of Warren requiring every person canvassing from house to house in said borough, for the purpose of selling or soliciting orders for books, etc., to take out a license from the burgess before doing or offering to do any business in the said borough; that the fee for license for book canvassers is four and one half dollars per week. The said ordinance subjects the person violating its provisions, on conviction before the burgess or any justice of the peace of the county, to a fine not less than three nor more than ten dollars, to be collected as similar debts are by law collected, and that defendant has violated the same. The demurrer alleges that the declaration is not sufficient in law.

After considering the very full and able argument of the counsel for the plaintiff, we find ourselves unable to concur in the conclusions reached therein. We think the ordinance mentioned is void for want of authority in the burgess and council to enact it. We think an ordinance that contravenes a common right is valid only when the power to ordain it is plainly conferred by legislative grant. We are of opinion that neither the act of 1832, nor the act of 1851, nor the act of 1883, confers any authority to make the ordinance on which the claim in suit rests; and further, that the police power of the borough is not such as to give validity to the ordinance.

The demurrer is sustained, and judgment nil capiat per breve is entered against the plaintiff.

Judgment having been entered upon the demurrer in favor of the defendant, the plaintiff took this writ, assigning the entry of the judgment as error.

Judgment reversed and procedendo awarded.

Mr. D. I. Ball (with him Mr. C. C. Thompson), for the plaintiff in error:

1. The power of the borough to enact the ordinance in question is to be found in the common-law power incident to all boroughs as municipal corporations, to make by-laws for their own government not contrary to the law of the land: 1 Bl. Com. 476*; 1 Dill. Mun. C., §§ 12, 141; People v. Bennett, 18 Amer. R. 111; Justice v. Logansport, 101 Ind. 326; Boston Beer Co. v. Mass., 97 U.S. 25; Fertilizing Co. v. Hyde Park Village, 98 Idem 659; Clark v. South Bend City, 44 Amer. R. 14; Northern Liberties v. Gas Co., 12 Pa. 321; Williamsport v. Commonwealth, 84 Pa. 494.

2. That power is also to be found in § 6 of the borough charter act of April 3, 1832, P.L. 259, and also in the general Borough Law, § 2, pars. I., XI., XXI., act of April 3, 1851, P.L. 320; under which statutory provisions the borough has authority to regulate the employments specified in the ordinance, by requiring a license with or without a license fee: O'Maley v. Freeport Borough, 96 Pa. 24; Commissioners v. Gas...