Commonwealth v. Gardner

• Decision Date: 09 October 1929
• Parties: Commonwealth v. Gardner, Appellant
• Court: Pennsylvania Supreme Court

147 A. 527

297 Pa. 498

Commonwealth v. Gardner, Appellant

Supreme Court of Pennsylvania

October 9, 1929

Petition for allowance of appeal from judgment of Superior Court in No. 81, Oct. T., 1929.

Allocatur Docket of Supreme Court, page 146.

The prayer of the petition is refused.

OPINION

PER CURIAM:

On this petition for the allowance of an appeal from the Superior Court, defendant avers that there are two constitutional questions involved which bring the case into this court as a matter of right under section 7, paragraph (e), of the Act of June 24, 1895, P.L. 212, providing that there may be an appeal from the Superior Court to the Supreme Court "if the case involves the construction or application of the Constitution of Pennsylvania."

When passing on an application such as the one now before us, we do not consider the merits of constitutional questions alleged to be involved, but we do look to see whether (1) that which is asserted to be a constitutional question is such, and (2), if it is, whether the point raised is really involved in the case. If either of these questions is resolved against the petitioner, the appeal must be refused.

The first constitutional contention stated by defendant is that the Act of March 27, 1923, P.L. 34, contravenes article III section 3, of the Constitution of Pennsylvania. Petitioner argues that the real subject-matter of the Act of 1923 is an attempted exercise of power conferred on the State by section 2 of [147 A. 528] the Eighteenth Amendment to the federal Constitution, and that there is no notice in the statute's title of this subject-matter. Defendant is initially in error in his conception of the source of the State's power so to legislate. "Such [local] laws derive their force not from this amendment, but from power originally belonging to the states, preserved to them by the 10th Amendment, and now relieved from the restriction heretofore arising out of the federal Constitution": U.S. v. Lanza, 260 U.S. 377, 381-2. But even if defendant's erroneous assumption as to the source of power were true, his contention is fallacious in that it confuses the subject-matter of the act with the power which might sanction legislative control of that subject-matter. The body of the statute confirms the wording of the title that the subject-matter of the act here in question is intoxicating liquors. Although the point now sought to be raised concerning the alleged defect in the title to the Act of 1923, has never heretofore been ruled by this court, it is a fundamental principle that there must be some real basis in fact for the raising of what is claimed to be a constitutional question. A problem of this kind is not involved where, as here, it is clear on the face of the act...