Parker v. Commonwealth

• Decision Date: 08 November 1847
• Parties: PARKER <I>v.</I> COMMONWEALTH.
• Court: Pennsylvania Supreme Court

6 Pa. 507

PARKER v. COMMONWEALTH.

Supreme Court of Pennsylvania.

October 11, 1847.

November 8, 1847.

Oct. 11.

IN error from the Quarter Sessions of Allegheny county.

McCandless and Wood, for plaintiff in error.—The act in question is highly penal and disabling; it is, therefore, to be construed strictly: Smith v. Spooner, 3 Pick. 229; Commonwealth v. Fourteen Hogs, 10 Serg. & Rawle, 395; American Fur Company v. United States, 2 Peters, 367; Stewart & Commonwealth, 10 Watts, 309; United States v. Wilson, Bald. 101. That this is the tendency of the statute is plain; since, by a bare decision of a majority of the citizens of a particular place, a lawful business is rendered unlawful under the penalty of a heavy fine. The statute may then fairly be construed not to extend to this case, which is within the city, where the vote has been taken by wards. The words are, "the citizens of the boroughs and townships," which need not extend to wards of cities. Nor can it be supposed to extend to the case of a merchant, but rather to retailers of the prohibited article.

By the act of 1830, the license under which the defendant justified was authorized to be issued by the city treasurer. The act of 1846 prohibits a license by the county treasurer. There is, therefore, ample room for a distinction.

But the main question goes to the root of the matter; and it is, whether the legislature can ordain a new, or different, legislative power from that provided by the constitution. That must consist of a Senate and House of Representatives, and they have no right to create this imperium in imperio.

This principle is further supported by the 2d and 20th sections of the Bill of Rights, which, recognising all power to be inherent in the people, declares there are certain persons invested with the powers of government. It is plain that every citizen is entitled to the protection of the whole legislative body, and is not to be left by them to the tender mercies of his particular neighbourhood. It is, moreover, plain that the distinguishing feature of our government is, that the people can only act through their representatives, and not, in the first instance, in primary assemblies. Here, then, the legislature have, in fact, created a new constitution, under which the people of each township and ward are the legislative body.

Forward and Alden, contrà.—As to the scope of the act of 7th April, 1846, and its application to cities, it suffices to say that the word city is not mentioned at all in the act; but the word "ward" is mentioned in every section thereof. If, then, cities be excluded, the word "ward" must be rejected altogether from the act. The term ward applies to the political divisions of a borough or city. Under this act the citizens are not to vote by cities, but by boroughs, wards, and townships.

This law was affirmed by overwhelming majorities in every ward of both of the cities, at the first election held under its provisions.

The 1st section of act of 1830, (Purdon, 1019,) provides only a form of a license to be issued by the county treasurer.

As to the constitutionality of this law. This question has been treated as if the government of this state was one of enumerated powers, and must have express authority for every thing it does. This position is denied; the government is one of limited powers, and the legislature has authority to do every thing not prohibited by the constitution.

The 1st section of 1st article of the Constitution of the United States shows the difference between the powers given by that constitution to Congress, and the powers given to the legislature of this state by its constitution. The legislature has no specific authority in the constitution to levy taxes, make penal laws; yet, the right to do both has never been questioned.

It is conceded the legislature may prohibit the selling of liquors, except under a license. But this act is objected to, because it was referred to the people to affirm the law at their elections — thus giving to the people legislative power. The legislature only felt themselves constrained to restrain, to some extent, the vending of liquors.

By the act of 1834, (Dunlop, 523,) the old law, leaving the discretion of granting a license to the judges of the Quarter Sessions, was changed, and a certificate had to be presented to the court signed by twelve freeholders. This is legislative power: McCullough v. State of Maryland, 4 Wheat. 437.

There are a great many acts of Assembly passed submitting the act to the citizens of different townships and counties to determine, whether they would accept or refuse the provisions of the different acts. This is clearly giving the people legislative power: Rose v. Stuyvesant, 8 Johns. 426. As to what is a municipal corporation: City of London v. Woods, 12 Modern, 686.

The authorities of Pittsburgh are authorized to license brokers, and to prohibit persons to act as brokers unless licensed. An indictment for infraction of an ordinance of the city of Philadelphia, was held good in Commonwealth v. Duquet, 2 Yeates, 493.

The legislature has power to establish municipal corporations, and to give them power to make regulations and laws for the purpose of carrying out the object of such corporations. Every select and common council is a local legislature, passing laws binding only within their respective cities.

What better method could be devised to procure a proper restriction in the selling of liquors, than the one adopted in the act of 7th April, 1846. And it cannot be said to give more legislative power to the people, than the provisions of the common-school law, and many other local laws passed by the legislature.

Nov. 8. BELL, J.

The defendant below, plaintiff in error, having been convicted upon an indictment, framed under the act of 7th of April, 1846, entitled "An act authorizing the citizens of certain counties to decide by ballot whether the sale of vinous and spirituous liquors shall be continued in said counties," the point is raised in this court whether the act is, in truth, a law of binding force.

It is to be regretted that this very grave constitutional inquiry, as it is presented to us, is interwoven with a question of public morals which has stirred the hearts and occupied the minds of the American people with such intensity of feeling, as to make it difficult to consider any proposition, even accidentally connected with it, in reference to its abstract merits alone. In approaching the discussion of such a proposition, the mind is almost involuntarily drawn to contemplate the amelioration which active philanthropy has, within a few years, effected in the social habits of our widely spread community; and the inquirer is tempted to shrink from the discharge of a task imposed by the deepest sense of duty, lest the result of his investigations might, even incidentally, check the growth of private and public improvement. But though the point presented for decision is highly important, considered simply in its connection with the subject I have alluded to, it becomes of infinitely greater magnitude when it is regarded as a question in political philosophy, springing from the peculiarities of our modes of government. In this aspect, it is intimately associated with the practical operation upon society of the written constitution, not only of this Commonwealth, but of every other state of the confederacy. Reaching far beyond any single subject of legislation, it embraces the whole range of topics that may fall under legislative cognisance, and, as it may be decided, restrains or immeasurably enlarges the manner in which the legislative power may be exercised. Such is the nature and scope of the subject to which our attention has been invoked. Regarding it as perhaps the most important ever presented for adjudication here, involving principles that address themselves with great urgency to the interests of every member of society, we have considered it under a lively sense of the responsibility which, even in ordinary instances, attaches upon an inquiry into the constitutional action of the legislative body; but which is largely increased by the character and possible results of the present investigation.

Unlike that of the United States, the government of Pennsylvania is not one of enumerated powers. Still, it is a government of limited authority; and it is, therefore, not to be denied that the action of its legislature may be invalid, though it contravene no express provision of the constitution, if it be in violation of the spirit of that instrument, and the genius of the public institutions designed to be created by it. Indeed, it is this species of insidious infraction that is more to be feared and guarded against than direct attacks upon any particular principle proclaimed as a part of the primordial law: for attempts of the latter description will, generally, be met by instant reprobation, while the stealthy and frequently seductive character of the former is apt to escape detection, until the innovation is made manifest by the infliction of some startling wrong. Putting out of view, as far as possible, the particular object of the act which gives rise to the controversy, lest we be misled by the meritorious nature of its aim; and addressing ourselves to the reasoning which must be equally applicable to all similar instances of legislative action, we will inquire whether there has been such an encroachment upon the constitution of the state, and the admirable political system created by it, as calls for the interposition of this court. In doing so, we are necessarily led into an examination of the structure of our systems of civil polity and government; and the aim and object of the eminent men who were charged with the important task of giving them a visible and distinctive shape.

The earliest pages of our colonial history show, that from the beginning, the principles of civil and political liberty were...