Commonwealth v. Reitz
| Decision Date | 27 October 1944 |
| Docket Number | 879 |
| Citation | 39 A.2d 522,156 Pa.Super. 122 |
| Parties | Commonwealth, Appellant, v. Reitz |
| Court | Pennsylvania Superior Court |
Argued September 25, 1944.
Appeal, No. 77, April T., 1945, from judgment of Q. S Washington Co., Nov. T., 1942, No. 14, in case of Commonwealth v. Fred Reitz.
Appeal by defendant to quarter sessions from summary conviction.
Order entered discharging defendant, before Gibson, P. J., Acheson and Carson, JJ., opinion by Gibson, P. J.,Acheson, J dissenting. Commonwealth appealed.
George T. Walker, with him Harrington Adams, Deputy Attorney General and James H. Duff, Attorney General, for appellant.
No one appeared or filed a brief for appellee.
OPINION
HIRT J.
Defendant was convicted summarily of a violation of a rule of the State Council of Defense, adopted under the authority and in furtherance of the Air Raid Precautions Act of April 13, 1942, P. L. 37. He was sentenced to pay a fine. After a hearing de novo, on appeal to the quarter sessions, the court specifically found that defendant was chargeable with violation of the rule in question but concluded that the act is unconstitutional on the ground that in it there is a delegation of the power to legislate as well as to create and define offenses punishable under the act. Upon the discharge of the defendant on this pure question of law the Commonwealth properly appealed to this court. Com. v. Simpson, 310 Pa. 380, 165 A. 498.
The State Council of Defense came into being because of the then "emergency or public need in the nation [and] the State" and was established on the authority of the Act of March 19, 1941, P. L. 6, 71 PS 1681. The Council under the act was composed of the Governor, seven other designated State officers and three citizens serving by appointment. The preamble of the Air Raid Precautions Act recognized "the supreme emergency of world-wide war" and the "imminent danger to the lives and property of citizens . . . from air raids calling for a state of preparedness to meet such danger" by "an adequate defense." It emphasized "an united and coordinated effort of civilian and state, local and volunteer agencies and facilities [as] essential in formulating and complying with precautionary measures to meet the emergency," including practice air raid drills and blackouts. Accordingly, the act empowered the State Council of Defense, and imposed the duty upon it, "to take such precautionary measures as may be necessary for the safety, defense and protection of the civilian population . . . and property within the Commonwealth with respect to air raids." The act provided: "In furtherance of this power and duty, the State Council of Defense shall have the power to adopt, promulgate and enforce rules, regulations and orders for this purpose . . . [with] the same force as if they formed a part of this Act." Violation of any provision of the act or of any rule of the council so adopted was made an offense punishable in a summary proceeding by fine or imprisonment.
A rule of the council provided that during either drill or attack "All persons [with exceptions not applicable] shall, upon receipt of an air raid alarm, immediately seek shelter and remain therein until the all clear signal is given." During the night of July 22, 1942, an air raid alarm was given in the borough where defendant lived; he was notified of the alarm by an air raid warden and directed to extinguish the lights in his place of business and remain indoors. In violation of the rule of the council and contrary to the order of the warden, defendant left the premises and remained in the open where he was found by the warden and conducted back to his place of business. He was later arrested on warrant charged with violation of the Air Raid Precautions Act.
It is the duty of every court to seek out, if possible, a construction which will support the legislative interpretation of the constitution and nothing but a clear violation can nullify an act of assembly on constitutional grounds. Com. ex rel. Schnader v. Liveright et al., 308 Pa. 35, 161 A. 697.
We have quoted enough of the acts in question to indicate the sense of imminent danger in the mind of the legislature and a serious effort to meet an unknown future through a flexible system of protection of persons and property. This State was not alone in enacting such legislation. The danger at the time was real. In the Pacific, following December 7, 1941 Japan's naval and air forces were superior; and in the Atlantic the battle was in the balance. We were unprepared. The danger was from the air and with a turn of events in favor of the Axis powers, Pennsylvania, with its capacity for production of materials and implements of war well might have become a major target. From the vantage ground of the present, the judgment of the air raid warden in arresting this defendant for misconduct during a practice drill may be questioned. But that is beside the point, as is the fact that a remote section in western Pennsylvania may not have been liable to attack in any event. This case presents the important question whether the State, in time of war, or other serious emergency, may protect its citizens and their property by legislation in the form presented. If the...
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