O'Maley v. Borough of Freeport

• Decision Date: 08 November 1880
• Citation: 96 Pa. 24
• Parties: O'Maley <I>versus</I> Borough of Freeport.
• Court: Pennsylvania Supreme Court

96 Pa. 24

O'Maley versus Borough of Freeport.

Supreme Court of Pennsylvania.

October 25, 1880.

November 8, 1880.

October 25th 1880.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

Appeal from the Court of Common Pleas of Armstrong county: Of October and November Term 1880, No. 233. In Equity.

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David Barclay, for appellant.—The power claimed under this ordinance must be contained in the charter of the corporation or be a necessary incident to its existence: 2 Bac. Abr. 445. Corporations can only act in accordance with the power conferred on them, unless the power is by the common law an incident of the corporation: Thompson v. Schermerhorn, 2 Seld. 92; Mayor of New York City v. Ordrenan, 12 Johns. 122; City of Williamsport v. Commonwealth, 3 Norris 494. It cannot be pretended that the act in question contains any express power to pass such a by-law. Toll payable is not an incident, and must be granted in the charter: 4 Bac. Abr. 158. Nor to levy a tax upon a countryman who sells and delivers a load of hay: Kip v. City of Paterson, 24 N. J. Law Reports (2 Dutcher) 302. This ordinance is a species of taxation: Hammett v. Philadelphia, 15 P. F. Smith 146. The taxing power is an incident of state sovereignty, and a relinquishment of it cannot be presumed in the absence of express stipulation: Bank of Pennsylvania v. Commonwealth, 7 Harris 144. But is the ordinance applicable to the appellant? It must be strictly construed. "All persons selling and delivering coal in the borough." O'Maley's contract was made in Pittsburgh. He delivered in the borough only. In the acts of incorporation by our legislature express power is granted in the charters for the establishment and control of markets and market houses: Act to incorporate Kensington, Pamph. L. 1820, 54, sect. 36; to incorporate the Northern Liberties, Pamph. L. 1819, 129, sect. 35; to incorporate the town of Waynesburgh, in Franklin county, Pamph. L. 1818, 7, sect. 6. The cases cited by the court are distinguishable from the one at bar.

G. D. Findley, for appellees.—The power to make by-laws is incidental to the whole body of every corporation; and, therefore, if a charter gives a select body a power to make by-laws touching certain matters therein specified, that does not take away from the body at large their incidental power to make by-laws touching other matters not specified in the charter: 2 Jacobs's Fisher's Dig. 2547; Rex v. Westwood, 2 Dow & Clarke 21. A municipal corporation is a government possessing power of legislation, and is charged with a general care for the welfare of the people: Williamsport v. Commonwealth, 3 Norris 494. The officers of the corporation are the best judges of the necessity of the ordinance: Fisher v. Harrisburg, 2 Grant 296. If any doubt exists as to the necessity and reasonableness of the ordinance, it must be solved in favor of the corporation which represents the public: 2 Grant 295; 11 Peters 544; 1 Am. Law Jour. 362. Laws requiring articles to be inspected, or weighed and measured before being sold, are in the nature of police regulations, and are valid in the absence of special constitutional provisions. When reasonable in their nature they are not regarded as being in restraint of trade: 1 Dill. Mun. Cor., ch. 12, p. 420. The weight of authority clearly shows that the ordinance in question is necessary, reasonable, and not in restraint of trade, and does not impose a tax; would not then the power to pass it belong to the incidental or common-law rights vested in every municipal corporation for the protection and good of the public, without the word "market," or such like express term in the general welfare clause of section 7 above mentioned?

Mr. Justice GORDON delivered the opinion of the court, November 8th 1880.

This case was determined in the court below on a demurrer to the bill, hence in this court it must stand or fall on the face of the bill. So far as we can discover, nothing has been put in issue by the pleadings but the power of the borough to make an ordinance, such as the one in controversy. The counsel for the plaintiff, in his argument, inter alia, contends for a strict construction of the ordinance; that it is operative only upon those who both sell and deliver coal within the borough limits. If, however, for...