Klinger v. Bicket
| Citation | 117 Pa. 326,11 A. 555 |
| Decision Date | 31 October 1887 |
| Docket Number | 140 |
| Parties | KLINGLER, ET AL., v. BICKEL, ET AL |
| Court | United States State Supreme Court of Pennsylvania |
Argued October 18, 1887
ERROR TO THE COURT OF COMMON PLEAS OF BUTLER COUNTY.
No. 140 October Term 1887, Sup. Ct; court below No. 75 June Term 1886, C.P.
This was an action of trespass vi et armis q.c.f. brought by Henry Bickel and Wm. G. Biehl, partners as Bickel & Biehl, against H. J. Klingler, George Walter and sixteen others. The plea was not guilty.
On April 7, 1886, the burgess and town council of the borough of Butler (subject to the provisions of the general borough act of 1851), under the authority of the act of June 3, 1885 P.L. 55, passed an ordinance with the following provisions --
Section 1. Be it ordained by the burgess and town council of the borough of Butler, and it is hereby ordained by authority of the same, that from and after the 20th day of April, A.D 1886, no person or persons shall erect or cause to be erected any frame or wooden dwelling house, shop, warehouse, store carriage house, stable, or other frame or wooden tenement within the following limits, viz.: Main street at the intersection of Penn street, southward, to the intersection of Wayne street, and for one hundred and forty (140) feet on either side of said Main street, from Penn to Wayne streets.
Section 2. No person or persons shall erect or cause to be erected any wooden or frame dwelling house, shop, warehouse, store, carriage house, stable, or other wooden or frame tenement within the following limits without first appearing before a quorum of the members of the town council at their regular place of meeting and obtaining a permit for the erection of such building or buildings, viz.: McKean street from the intersection of Wayne street, north, to the intersection of Penn street and for two hundred and forty (240) feet on the west side of said McKean street, and for one hundred and eighty (180) feet on the east side of said McKean street, from Wayne to Penn streets:
Washington street from the intersection of Wayne street, north, to the intersection of Penn street and for two hundred and forty (240) feet on the east side of said Washington street, and for one hundred and eighty (180) feet on the west side of said Washington street, from Wayne to Penn streets. . . .
Section 3. That any person or persons violating the provisions of this ordinance shall be compelled to remove the structure or pay the cost of removal by council, with the addition of twenty per centum, and also pay a penalty of fifty dollars for every day the same shall remain standing within the limits prescribed in this ordinance, which penalty shall be for the use of the borough of Butler and be collectible as debts of like amount are now collected by law. --
On West Jefferson street, within the limits described in the second paragraph of § 2 of the foregoing ordinance, a compact block of wooden buildings had been erected and for a number of years had been occupied as livery stables. The ground upon which the buildings stood belonged to Charles Duffy. The eastern end of the block was occupied by Bickel & Biehl, liverymen, whose stable, it was alleged, was frequented by disorderly persons in the late hours of the night. On Sunday, May 23, 1886, about 4 o'clock A.M., a fire broke out in the block which entirely destroyed the stables of Sarver, Mitchell, and Flick and Kennedy, and left but the charred remains of the stable of Bickel & Biehl. On the next morning, May 24, 1886, the burgess and town council met and passed a resolution that the ordinance of April 7, 1886, be enforced to prevent the erection of frame buildings within certain limits embracing the location of the burned stables, and the same morning a copy of said resolution was served upon Charles Duffy, the owner of the ground and also upon each of his tenants, including Bickel & Biehl. On the afternoon of the same day, however, disregarding said resolution and the notice thereof, Bickel & Biehl gathered a number of men and proceeded to erect a wooden building to be used for the same purpose as the one destroyed. The town council then passed a resolution directing the high constable to remove the erection. To avoid a breach of the peace the high constable and his posse were instructed to wait until the workmen left the building before proceeding to remove it. The officer and his men went to the premises after midnight and commenced to tear the building down, but they were driven away. On the morning of May 27, 1886, the high constable, with a number of special policemen, duly appointed and sworn, proceeded to the ground, demolished the structure erected, together with the charred remains of the old building, and piled the lumber upon the lot it had occupied. Thereupon Bickel & Biehl brought this action against the high constable, his posse, and certain members of the town council.
At the trial, on May 4, 1887, before A. L. HAZEN, P.J., the foregoing facts appeared, and the court instructed the jury, inter alia, as follows: --
Then, gentlemen, let us look and see, after the definitions of the words used, for words are to be taken in their ordinary sense as applied by thinking men in the daily course of business and in the light in which the law places upon them a meaning. Ordinances may regulate, but not restrain trade. They must not contravene common right, unless the power to do so be plainly conferred by legislative grant; and in cases where they have such a right, authority to regulate conferred upon towns of limited powers has been held not necessarily to withhold the power to prohibit. I quote that as authority from a Pennsylvania Supreme Court case.
Again, an ordinance must be reasonable and lawful; not inconsistent with the charter of the corporation, nor with any statute of the state; nor with the general principles of the common law of the land, particularly those having relation to the liberty of the subject or the rights of private property. They must therefore be reasonable; consonant with the general powers and purpose of the corporation, and not inconsistent with the laws of the state. They must not be oppressive. The principle of law that ordinances passed under a general authority to enact all such as will be necessary, must be reasonable or they may be void, is well illustrated by the case of Commissioners v. Gas Co., 12 Pa. 318:
Again, a corporation under a general power to make by-laws, cannot make a by-law ordaining a forfeiture of property. To warrant the exercise of such an extraordinary authority by the local and limited jurisdiction, the rule is reasonably adopted that such authority must be expressly conferred by the legislature; and even if the power to declare a forfeiture is conferred, still no person can by ordinance be deprived of his property by forfeiture without notice or without legal adjudication -- legal investigation or adjudication. An ordinance in violation of this principle is void, as contrary to the genius of our laws and institutions; and we say to you, gentlemen, that as there has been much stress paid in the argument of this case in regard to what was forfeiture or confiscation -- I care not by what name it was called by the counsel -- if property was either taken away and disposed of, or rendered useless by action of the parties, it is immaterial what you call it by, if the result is the same. Hence, in order to meet that legal point, we have instructed you in this way, and say to you that we believe this to be the law as interpreted by the Supreme Court of Pennsylvania. Power to fine does not include power to forfeit. Courts hold thereby. That municipal corporations cannot pass by-laws ordaining a forfeiture, is strictly construed in many instances. . . .
Then let us revert and see whether in this there was authority. It is claimed here that they were acting in pursuance of law -- an ordinance or by-law passed in pursuance of the warrant of law thereto. Under the act of April 3, 1851, the chief burgess and other municipal officers of the corporation shall have power, first, to enforce all police ordinances, rules and regulations of the corporation; second, to exercise jurisdiction in all disputes between the corporation and individuals arising under the same. Very broad and very full authority; and it may be a subject of inquiry to you, gentlemen, whether under this authority they might not, as there was a dispute between these plaintiffs and the agents, or representatives, if you please, of the town council, who were delegated as defendants, say to you, to go and tear down this building, -- under this authority we say to you it was broad enough to have entitled -- nay, was it not the duty when that dispute arose to have at least adjudicated the matter with the plaintiffs, whose property they were there to take down, a day in court?
But we will go further as to the authority. Under article XIV., section 1, of the constitution of the United States, we find this among other things: "Nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."
Then again, under the state constitution in article III., section 7: ...
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