Schenley v. City of Allegheny

• Decision Date: 01 January 1854
• Parties: Schenley and Wife versus The City of Allegheny.
• Court: Pennsylvania Supreme Court

Page 128

25 Pa. 128

Schenley and Wife versus The City of Allegheny.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Allegheny county.

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G. P. Hamilton, for plaintiffs in error, cited 2 Kent's Com. 332; 9 Harris 168; Const. Penna. 4 sect. 7 art.; 6 Whart. 4; 3 Watts 92.

Geyer, for defendants in error, cited 3 Watts 296-224; 1 Harris 104-117; 3 Id. 245; 2 Barr 216-224; 9 Leg. Int. 102; 1 John. 77; 3 Wend. 263; P. L. 1851, 372; Id. 1852, 304.

The opinion of the Court was delivered by WOODWARD, J.

The proceedings of the city of Allegheny to levy the tax in question appear to have been in accordance with the Act of Assembly of 5th April, 1849, as modified by the 3d section of the Act of 8th April, 1851, P. L. 372, and by the 3d section of the Act of 30th March, 1852, P. L. 205.

The only question is upon the constitutionality of that legislation; and in view of the course of decision which prevails in this Court, as indicated especially in McMasters v. The Commonwealth, 3 Watts 292, Kirby v. Shaw, 7 Harris 258, and Sharpless v. The City of Philadelphia, 9 Harris 147, it seems strange that such a question should have been thought worth submitting. From the principles recognised in these cases it must be apparent to the most careless reader, that the exercise of the taxing power by the legislature must become wanton and unjust — be so grossly perverted as to lose the character of a legislative function — before the judiciary will feel themselves entitled to interpose on constitutional grounds. To arrest the legislation of a free people, especially in reference to burthens self-imposed for the common good, is to restrain the popular sovereignty, and should have clear warrant in the letter of the fundamental law. The legislation complained of here is of the character of much that has prevailed in Pennsylvania without complaint; which has been often sanctioned by judicial tribunals; and which is made indispensable by the growth and prosperity of towns and cities. It is a fair and legitimate mode of taxation, because it imposes the burthens exactly where the benefits are conferred, and its constitutionality is unquestionable.

The judgment is affirmed.