Fetter v. Wilt et al.

• Decision Date: 15 February 1864
• Citation: 46 Pa. 457
• Parties: Fetter <I>versus</I> Wilt <I>et al.</I>
• Court: Pennsylvania Supreme Court

46 Pa. 457

Fetter versus Wilt et al.

Supreme Court of Pennsylvania.

February 15, 1864.

ERROR to the Common Pleas of Union county.

W. Van Gezer and G. F. Miller, for plaintiff.

W. C. Lawson, J. M. C. Ranck, and A. H. Dill, for defendants,

The opinion of the court was delivered, February 15th 1864, by THOMPSON, J.

The defendants below justified the alleged trespass for which they were sued, under the provisions of the 1st and 2d sections of an Act of Assembly, passed the 22d day of April 1822, entitled "An act to prevent the disturbance of meetings held for the purpose of religious worship."

The 1st section of the act provides, that it shall not be lawful for any person "to erect, place, or have any booth, stall, tent, carriage, boat, or vessel, or any other place whatever, for the purpose or use of selling, giving, or otherwise disposing of any kind of articles of traffic, spirituous liquors, wine, porter, beer, or any fermented, mixed, or strong drink (excepting as hereinafter excepted), within three miles of any place of religious worship, in this state, during the time of holding any meeting for religious worship at such place." And the 2d section imposes as a penalty for a violation of the act, the forfeiture of the booth, stall, carriage, vessel, or boat in which such sales shall be made, together with all and singular the articles of trade and traffic on hand at the time, together with the vessels in which such articles may be contained. And it authorizes the same to be seized by any justice of the peace, accompanied by a constable and two freeholders, if, after notice to the offender by them, he do not immediately cease and abstain from selling his traffic, and remove the same beyond the limits prescribed, viz., three miles from where such meeting is being held. After seizure, the act provides for a sale of the goods, wares, &c., at any time within ten days thereafter, after advertisement; and distribution of the net proceeds t the overseers of the poor of the township, after deducting expenses incident to the seizure and sale.

The plaintiff below had erected a shed, or summer-house, as some of the witnesses called it, on his own premises and adjoining his dwelling, which was about a quarter of a mile from the grounds of the camp-meeting, held in the neighbourhood in the summer of 1859. A German camp-meeting had shortly before been held at the same place, when, I would judge, the shed was erected. But no matter for that. On the occasion in question, the plaintiff had in this shed or summer-house a supply of cheese, cakes, candies, oranges, nuts, segars, and small or ginger beer, and the like, which he had commenced to retail to persons wanting to purchase, when he was notified to desist from selling by the requisite functionaries, under the penalties which might ensue in case of disobedience; but believing he was doing nothing contrary to law, he refused obedience to the mandate; whereupon a seizure of his entire stock in the building was made by the defendants, including all such vessels and utensils containing any of the alleged articles of traffic, and placed upon a wagon hauled from the ground and eventually sold, and the proceeds distributed to the overseers of the poor.

It may not be amiss to notice perhaps that, although the acts done are alleged to have been done for the prevention of the disturbance of religious worship, nothing like a disturbance was alleged, in the notice to the plaintiff to abstain from selling his provender. It was not alleged that he was disturbing the meeting. Nor was there even the suspicion that he had sold, or intended to sell, intoxicating liquors, as he had none. The seizure had therefore nothing like a necessity to excuse it. Does the Act of Assembly justify it?

In the last clause of the 2d section of the act, the prohibited selling is called an "offence," which, in criminal law, is said to be synonymous with misdemeanor: 1 Chitty's Criminal Practice 14. We have thus an "offence," a misdemeanor, which is a modified form of crime, with the penalty or punishment of forfeiture of goods and chattels prescribed, directed to be inflicted, without, "according" to the accused, the right to be heard by himself or counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favour, and to demand a speedy and public trial, upon the mere motion of the parties named, without complaint, warrant, hearing, trial, judgment, or conviction. The framers of the act in question seem to have been perfectly oblivious of the constitutional mandate, that no "one can be deprived of his life, liberty, and property unless by the judgment of his peers or the law of the land;" for here the power was given, and in this case it was exercised, by a forfeiture of the plaintiff's goods to the extent of between fifty and one hundred dollars. Had the property been of the value of $5000 instead of the sum named, the power to confiscate it was equally...