author: Agnew, J. Read, C. J.

text:
    Locke’s Appeal. Commonwealth ex rel. McClain versus Locke et al.

    1. An agent'cannot delegate to another a power conferred on him because of his fitness and the confidence reposed in him.
    2. A legislature in a representative government cannot delegate to another body the power to make laws.
    3. Whilst a legislature calls to its aid only the means of ascertaining the utility of a measure, and does not delegate the power to make the law, it is acting within its powers.
    4. An act authorized voters to vote “for license” or “against license,” the tickets to be counted and return certified to the Quarter Sessions; the voting, &e., to be conducted as in other elections; when the returns showed a majority against license, it should “not be lawful for any license to issue for the sale of intoxicating liquors,” &c. Any person who should be convicted of selling any intoxicating liquors without • a license, should be sentenced, &c. Bteld, that the act was constitutional.
    5. Commonwealth v. Judges, 8 Barr 391; Moers v. Reading, 9 Harris 188; Smith v. McCarthy, 6 P. R. Smith 359, followed. Parker v. Commonwealth, 6 Barr 507, overruled.
    February 24th and 25th 1873.
    Before Read, C. J., Agotew, Sharswood, Williams and Mercur, JJ.
    Appeal from the Court of Common Pleas of Philadelphia: In Equity: No. 52, to January Term 1873.
    The questions in this case arose under the Act of May 3d 1871, Pamph. L. 522, relating to granting licenses to sell intoxicating liquors. The parts of the act material to the case are as follows:
    “ Sect. 1. That at the next municipal election in the Twenty-second ward of the city of Philadelphia, and at the annual municipal election every third year thereafter, it shall be the duty of the inspectors and judges of election-said ward, to receive tickets, either written or printed, from the legal voters of said ward, labelled on the outside, license, and on the inside, for license or against license, and to deposit said tickets in a box provided for that purpose by said inspectors and judges, as is required by law in case of other tickets received by said election; and the tickets so received shall be counted, and a return of the same made to the clerk of the Court of Quarter Sessions of the city and county of Philadelphia, duly certified by the return judges of said ward, which certificate shall be filed with the other records of said court.
    “ Sect. 2. It shall be the duty of the constables of the said ward to give due public notice, by printed handbills, throughout the ward, of such special election above provided for, thirty days previous to the time of holding the next annual municipal election, at which time the question of license or no license will be submitted to the voters of said ward; also, thirty days’ notice for the annual municipal election every third year thereafter.
    “ Sect. 3. That in receiving and counting, and in making returns of the votes cast, the inspectors, judge and clerks of said election shall be governed by the laws of this Commonwealth regulating general elections; and all penalties of said election laws are hereby extended to, and shall apply to the voters, inspectors, judges and clerks acting at and in attendance upon the elections held under the provisions of this act.

      “ Sect. 4. Whenever, by the returns of election in the Twenty-second ward of the city of Philadelphia, it shall appear that there is a majority against license, it shall not be lawful for any license to issue for the sale of spirituous, vinous, malt or other intoxicating liquors in said ward, at any time thereafter, until at an election as above provided,, a majority of tbe voters of said ward shall vote in favor of a license.
    “ Sect. 5. Any person who shall hereafter be convicted of selling, or offering for sale, in the Twenty-second ward of the city of Philadelphia, any intoxicating liquors, spirituous, vinous, malt or other intoxicating liquors, without a license, shall be sentenced to pay a fine of $50, and confinement in the house of correction or county jail for the period of six months for the first offence, and for the second and each subsequent offence, a fine of $100, and confinement in the house of correction or county jail for the period of one year.”
    An election under the provisions of the act was held in the Twenty-second ward, and a majority of votes having been cast against granting license, a bill in equity was filed in the Court of Common Pleas against Thomas Locke, James Bain and Alexander McCuen, city commissioners, to restrain them from granting license to any person to sell intoxicating liquors in the Twenty-second ward.
    The court granted the injunction; the commissioners appealed to the Supreme Court, and assigned for error the decree granting the injunction.
    The question discussed was the constitutionality of the Act of May 3d 1871.

      Gr. W. Biddle and W. L. Nirsi, jor plaintiffs in error.
    — The legislature cannot delegate to the people power to enact new laws or to repeal existing laws which affect the property or bind the political or social rights of the citizen: Cooley’s Constitutional Limitations 116, 117 ; Rice v. Foster, 4 Harrington 492; Parker v. Commonwealth, 6 Barr 507 ; People v. Stout, 23 Barb. 338 ; Barto v. Himrod, 8 N. Y. Rep. 483 ; State v. Swisher, 17 Texas 441; The Aurora v. United States, 7 Cranch 382 ; Thorne v. Cramer, 15 Barbour 112 ; Bradley v. Baxter, Id. 122 ; Johnson v. Rich, 9 Id. 68.
    The authorizing municipal corporations to do certain acts, such as to contract particular debts, to subscribe to improvements, to impose taxes for local purposes, to pass by-laws, ordinances, &c., is no delegation of the law-making power, provided that no act thus authorized abridges or enlarges any of those rules of conduct that affect the social and political rights of a citizen: when they do so the law is pro tanto unconstitutional: Comm’th v. Judges of Quarter Sessions, 8 Barr 395; Parker v. Comm’th, supra; Comm’th v. Painter, 10 Barr 391; Cooley on Constitutional Lim. 116, 125; Commissioners v. Gas Co., 2 Jones 318 ; Ex parte Burnett, 30 Ala. 461; s. c. 32 Id. 728 ; Thorne v. Cramer, Bradley v. Baxter, Barto v. Himrod, supra; People v. Stout, 23 Barb. 338 ; State v. Copeland, 2 Rhode Island 30; Maize v. State, 4 Ind. 351; Santo v. State, 2 Iowa 206 ; Geebrick 5 Id. 493; People v. Collins, 3 Mich. 415 ; State v. Parker, 26 Verm. 336.
    An act making it wholly illegal and penal to carry on a business lawful at common law, is a law affecting the property and the social and political rights of the citizen. The legislature cannot delegate the power to pass or repeal such a law, to any other body, much less to the people of a local district: Moers v. Reading, 9 Harris 188; Railroad v. Clinton Co., 1 Ohio N. S. 77; Ex parte Burnett, supra.

      W. II. Bawle and Porter (with whom were W. MePlroy and F. O. Brewster), for appellants.
    — An act of the legislature is not to be declared void, unless the violation of the Constitution is so manifest as to leave no room for reasonable doubt: Com. v. Smith, 4 Binn. 117; Hilbish v. Catherman, 14 P. F. Smith 154; Bancroft v. Dumas, 21 Verm. 461; Wellington v. Petitioners, 16 Pick. 95; Respub. v. Duquet, 2 Yeates 493 ; Com. v. Zephon, 8 W. & S. 382; Sharpless v. The Mayor, 9 Harris 147; Speer v. School Directors, 14 Wright 158; Erie R. R. v. Casey, 2 Casey 287 ; Durach’s Appeal, 12 P. F. Smith 495 ; Pennsylvania Railroad v. Riblet, 16 Id. 164.
    This kind of law is a police regulation, being applicable only to a business which is hazardous or injurious to the citizens: People v. Hawley, 3 Mich. 330.
    A writ of error to the same court by the Commonwealth at the relation of McClain and others, against Locke and others, city commissioners, was argued at the same time.
    The error assigned in that case was the refusal of the court below to issue a mandamus to compel the commissioners to issue license to the relators.
    March 17th 1873,
   The opinion of the court was delivered, by

Agnew, J.

— That a power conferred upon an agent because of his fitness and the confidence reposed in him cannot be delegated by him to another, is a general and admitted rule. Legislatures stand in this relation to the people whom they represent. Hence it is a cardinal principle of representative government, that the legislature cannot delegate the power to make laws to any other body or authority. The true question in this case is, whether the Act of May 3d 1871 (Pamph. L. 523), “ to allow the voters of the Twenty-second ward of the city of Philadelphia, to vote on the question of granting license to sell intoxicating liquors,” is a delegation of legislative power. This must be determined by an analysis of the provisions of the act itself; and depends, not upon the numerical order of the sections, but upon, the nature of the legislative determination when the act left the hands of the Assembly. Whatever the legislature then determined to he is law, for so much was then a fixed and absolute resolve. "What did the legislature then determine absolutely ? It enacted in the fifth section that any person who shall hereafter be convicted of selling, or offering for sale, in the Twenty-second ward of the city of Philadelphia, any intoxicating liquors, spirituous, vinous, malt or other intoxicating liquors, without a license, shall be sentenced to pay a fine of fifty dollars,” &c. The provisions of the first, second and third sections are equally imperative and absolute, and may be summed up in a few words, viz.: That a special election shall be held in the Twenty-second ward at the next annual municipal election, and every third year thereafter; that the constable of the ward shall give a certain notice of such special election, at which time the question of license or no license will be submitted to the voters of this ward; that the election shall be held by the same officers, in the same manner, and under the same penalties prescribed by the general election law, and due returns of the election made in a similar manner. The language is imperative, and the law was absolute in all these respects when the act was approved by the governor. We come then to the fourth section, which provides that whenever, by the returns of election, it shall appear that there is a majority against license, it shall not he lawful for any license to issue for the sale of spirituous and other liquors in said ward, at any time thereafter, until at an election, as above provided, a majority of the voters of said ward shall vote in favor of a license.

What did the legislature, in this section, submit to the people, and what did they not submit ? This is quite as clear as any other part of the act. Each elector is to vote a ticket for license or against license. He is allowed by the law to say, “ I am for the issuing of license,” or “I am against the issuing of licenses,” and thus to express his judgment or opinion. But this is all he was permitted by law to do. He declared no consequences, and prescribed no rule resulting from his opinion. Nor does the majority of the votes, declare a consequence. The return of a majority is but of a mere numerical preponderance of votes, and expresses only the opinion of the greater number of electors upon the expediency or inexpediency of licenses in this ward. When this is certified by the return, the legislature, not the voters, declare “ it shall (or it shall not) be lawful for any license to issue for the sale of spirituous liquors.” Thus it is perfectly manifest this law was not made, pronounced or ratified by the people; and the majority vote is but an ascertainment of the public sentiment —the expression of a general opinion, which, as a fact, the legislature have made the contingency on which the law shall operate. When the law came from the halls of legislation it came a perfect law, mandatory in all its parts, prohibiting in this ward the sale of intoxicating liquors without license; commanding an election to be held every third year to ascertain the expediency of issuing licenses, and when the fact of expediency or inexpediency shall have been returned, commanding that licenses shall issue or shall not issue. Then what did the vote decide? Clearly, not that the act should be a law or not be, for the law already existed. Indeed, it was not delegated to the people to decide anything. They simply declared their views or wishes, and when they did so, it was the fiat of the law, not their vote, which commanded licenses to be issued or not to be issued.

Now, in what respect does a vote upon license or no license, in a particular ward or township, differ from a Vote, whether a new township shall be continued or annulled; or from a vote to determine whether a seat of justice shall be continued where it is or be removed to another place; or from a vote for or against a subscription by a city to the stock of a railroad company; or from a vote of the people of a district for or against a consolidation of it with a city ? Yet in all these instances (to which reference will be made hereafter) it has been decided that the determination of these questions by a vote of the people interested in them, and an enactment of law dependent on the result of this vote, are not a delegation of the law-making power to the people, but a submission only of the expediency of the proposed measure. This is simply common sense, for in none of the instances did the legislature commit to the people the making of the law, but merely the province of determining a matter important to wise and judicious legislation— something upon which the legislature deemed it proper its own act should wait, and then should operate accordingly. • The wit of man cannot draw a well-grounded distinction between the result of a vote upon license in a township, and the result of a vote upon the existence of a township, and the removal of a court-house, or a subscription to stock, or the consolidation of an outlying district with a city.

The legislature in the Act of 1871 have given to the people a law, not a mere invitation; needing no ratification, no popular breath to give it vitality. The law is simply contingent upon the determination of the fact, whether licenses are needed, or are desired, in this ward. And why shall not the legislature take the sense of the people ? Is it not the right of the legislature to seek information of the condition of a locality, or of the public sentiment there ? The Constitution grants the power to legislate, hut it does not confer knowledge. The very trust implies that the power should be exercised wisely and judiciously. Are not public sentiment and local circumstances just subjects of inquiry? A judicious exercise of power in one place may not be so in another. Public sentiment or local condition may make the law unwise, inapt, or inoperative in some places, and otherwise elsewhere. Instead of being contrary to, it is consistent with, the genius of our free institutions, to take the public sense in many instances, that . the legislators may faithfully represent the people, and promote their welfare. So long, therefore, as the legislature only calls to its aid the means of ascertaining the utility or expediency of a measure, and does not delegate the power to make the law itself, it is acting within the sphere of its just powers.

It is urged that Parker v. Commonwealth, 6 Barr 507, decided the question before us. That case was overruled soon after it was decided, not in express terms, it is true, but its foundation was undermined when it was held that laws could constitutionally be made dependent on a popular vote for their operation. The reasoning in Parker v. Commonwealth is fallacious, in assuming the fact that there was a delegation of legislative power. There is much in the opinion well and ably said. The first eight pages may be passed over, and we are brought then to the marrow of the argument, which is contained in the following sentences: After a summary of the Act of 1846, Justice Bell proceeds to say, that as a statute it “ depends for its validity and binding efficacy, within {he several counties named in it, upon the popular vote of designated districts.” “Possessing no innate force, it remains a dead letter until breathed upon by the people, and called into activity by an exertion of their voice in their primary assemblies.” “If a majority within the particular district should vote negatively upon the question yearly to be submitted to the people, the act as a statute has no existence“ If a majority of the votes be cast in the affirmative, then the act is to take effect as a statute.” “ It operates not proprio vigore, but, if at all, only by virtue of a mandate expressed subsequently to its enactment, in pursuance of an invitation given by the legislative bodies.” u As it left the halls of legislation it was imperfect and unfinished ; for it lacked the qualities of command and prohibition absolutely essential to every law.” I have italicised the portions which show the thought of the opinion and evince the assumption on which the argument rests. If we admit the fact that the law now before us was of this character, an imperfect and unfinished act, a mere invitation to the people to issue their subsequent mandate, and to breathe into it all its vitality, and thus give to it all its validity and binding efficacy as a law, we might have to concede the conclusion that there was a delegation to the people of the power to legislate. But it is beyond cavil that when the Act of 1871 left the halls of legislation, * it was a mandatory law in all its parts, and the only thing com-1 mitted to the people was to vote for or against the issuing of licenses, and thereby supply the evidence of expediency. It acts proprio vigore, and is called into existence by no subsequent popular mandate. By its command the sale of liquors is forbidden, the popular vote is taken, and its effect declared. This popular \j vote is but the law’s appointed means of determining a result, which the law enacts, in an alternative form, shall be the contingency of its operation. The law did not spring from the vote, but the vote sprang from the law, and the law alone declared the consequence to flow from the vote. The assumption that the act is not a law, till enacted by the people, is the foundation of the argument, and with its fall the superstructure vanishes. The character of this law is precisely that of hundreds of others, which the legislative will makes dependent on some future act or fact for its .operation. To assert that a law is less than a law because it is made to depend on a future event or act, is to rob the legislature of the power to act wisely for the public welfare, whenever a law is passed relating to a state of affairs not yet developed, or to things future, and impossible to be fully known. Such an asser- ' tion attacks even the moral government of the Creator. God breathes into his creature the power of judgment and discretion, and then declares to him in his law: “ As you determine your act, so .shall be the consequence.” The law is active and operates only when man determines. Does man or God make the law ?

What is more common than to appoint commissioners under a law to determine things upon the decision of which the act is to operate in one way or another ? The courts exercise powers dependent on their own discretion. Take the case of granting a license to keep an inn and sell liquor. The judge determines whether the license is necessary, and if not necessary, the law says to the applicant, no license.” The law takes effect just as the judge determines, yet who says it is the court that legislates ? What is the difference, in essence, whether the necessity for places for the sale of liquors be determined by the people or the court ? Each in its place, is but an instrumentality of the law. The judge speaks, the people speak; but each speaks by the authority of law, and the law commands the consequence. The error of the argument is in attributing the consequence to the voice that speaks, instead of to the law, which makes the people its own mouth-piece, and has be- . forehand proclaimed the consequence of the utterance. The people, by virtue of the law, declare the expediency of licenses in the ward, and the law itself has already enacted what shall follow this declaration. Though contingent in form, the law is mandatory throughout in all it requires, and all it determines. That is not less an act of sovereign power, which says to the subject, do this, and that shall follow ; do that, and another thing shall follow. To the subject a discretion of acting is given, and as he decides, the law pronounces the consequences. It is the sovereign which gives the law, not the subject. -

. Then, the true distinction, I conceive, is this: .The legislature 1 cannot delegate its power to make a law ; but it can make a law i to delegate a power to determine some fact or state of things upon j which the law makes, or intends to make, its own action depend'!] To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend, which cannot be known to the law-making power, and must, therefore, be a subject of inquiry and determination outside of the halls of legislation. Hence the necessity of the municipal divisions of the state into counties, townships, cities, wards, boroughs and districts, to which is committed the power of determining many matters necessary, or merely useful, to the local welfare. Can any one distinguish between committing the determining power to the authorities of the district, and to the people of the district ? If the power to determine the expediency or necessity of granting licenses to sell liquors in a municipal division, can be committed to a commission, a council, or a court, which no one can dispute, why cannot the people themselves be authorized to determine the same thing ? If a determining power cannot be delegated, then there can be no power delegated to city councils, commissioners, and the like, to pass ordinanc'es, by-laws and resolutions in the nature of laws, binding and j affecting both the persons and property of the citizens. If a determining power cannot be conferred by law, there can be no law that is not absolute, unconditional and peremptory; and nothing which is unknown, uncertain and contingent can be the subject of law.

If in any case a question could arise upon a delegated power, it would be in that which is delegated to the Councils of Philadelphia to make laws so called. Look at the language of the 16th section of the Act of March 11th 1789: “ The Mayor, &c., shall have full power and authority to make, ordain, constitute and establish such and so many laws or ordinances,” &c. See also the 4th section of .the Consolidation act of Feb. 2d 1854: “ That the legislative powers of the said city shall be vested in two bodies, to be called the Select and Common Councils.” In pursuance of this power rights of person and property are regulated; fines and forfeitures inflicted, and discretionary powers are vested in committees, departments and officers. Can there be a clearer instance of the exercise of powers in their nature legislative, by an act of delegation ? Yet who believes that this is unlawful, or that it is really a delegation of the law-making power in the sense of a relegation of it from the halls of legislation to the council chambers ? On the contrary, the charter of the city is itself the law, which breathes into these quasi legislative acts of councils all their life and power, and which, for useful and necessary local purposes, delegated to councils, not the power of making laws, but the discretion and determining power necessary to regulate the affairs of a great city, that owing to distance, and want of knowledge and of time, the legislature cannot determine for itself, but which by its law it directs to be done by others. Just at this point the opinion in Parker v. Commonwealth evidently labors when it touches this instance of delegated powers, and attributes the efficacy of corporation laws to the consent of the citizens, and affirms that the relation between the municipality and the members is founded in contract. But it is too clear for argument that ordinances derive their binding force from the law which authorizes them, and not from compacts. The power to pass them is delegated, and the true question is, what is the nature of the delegated power ? As already stated, it is merely a determining power, as to matters committed to the discretion of the councils by law, not a lawmaking power per se.

Parker v. Commonwealth was decided by three judges to two, with a strong dissent proceeding from the latter. In less than a year afterwards a question aróse upon a law, authorizing the people to determine by a vote, whether a new township should be continued or annulled: Commonwealth v. Judges Q. S., 8 Barr 391. The only attempt to distinguish the case from Parker v. Commonwealth, was by saying that in the latter there was an exercise of sovereignty — of the power of enacting a law by ballot; while in the former there was an exercise of a subordinate function only, for the convenience of public business. But we have already shown that the distinction rests on no difference, and the assumption in Parker v. Commonwealth of the delegation of a legislative power being unfounded, the argument fails, and the distinction, in The Commonwealth v. The Judges, falls with it. The Commonwealth v. Painter, 10 Barr 214, occurred a year later, the law authorized the electors of Delaware county to determine by ballot whether the seat of justice should be continued at Chester or be removed to another place, and in the event of a vote for removal, that a commission should select the site, and a court-house be erected.

The law was held to be constitutional, the court not attempting to distinguish it from Parker v. Commonwealth, excepting to say that the latter does not reach or cover the case in hand. The law, however, was examined in view of Parker v. Commonwealth, and the opinion was delivered by Coulter, J., who had written an able dissenting opinion in that case. Pour years later came Moers v. City of Reading, 9 Harris 188. The law provided for taking the sense of the people upon a subscription to the stock of the Lebanon Talley Railroad Company, the subscription being authorized or not as the people should declare by their vote. The law was held to be constitutional, Ch. J. Black remarking: “ It iá argued that it is not an exercise of legislative power by the Assembly, but a mere delegation of it to the people of Reading. We cannot see it in that light. Half the statutes on our books are in the alternative, depending on the discretion of some person or persons, to whom is confided the duty of determining whether the proper occasion exists for executing them. But it cannot he said the exercise of such a discretion is the making of the law.” This is the precise point which we have endeavored to show was overlooked in Parker v. Commonwealth, and the contrary assumed without proof. It is to he noticed, also, that Moers v. City of Reading was decided by an entirely new bench of judges. These cases have been followed very recently in Smith v. McCarthy, 6 P. P. F. Smith 359. A law for consolidating certain outlying districts with the city of Pittsburg was made to depend upon the vote of the people. It was held to be constitutional, Thompson, C. J., remarking, “We do not regard it within the principle which forbids the delegation of legislative power.” There was also the common school system of the state, which, by the Act of the 13th June 1835, § 13, was made dependent upon the vote of the people of every district, by election every third year. In many parts of the state, the hostility to the law was intensely bitter and the school law was not adopted in some districts for more than twenty years, yet it has never been declared unconstitutional.

I have not thought it useful or necessary to notice the supposed distinction between acts of the legislature as laws and as grants of sovereign prerogative, for the plain reason, that having by analysis of the act itself and by abundant precedents shown, that it is a law in its nature and mandatory character, the distinction has no place or application. If it were useful it might not be difficult to show that, in our form of government, all grants of-royal prerogative or Of franchise are the product of the exercise of the legislative power only, and by the terms of the Constitution, in the 1st section of the 1st article, must pass by the grant of the legislative power therein, or not at all. The legislature cannot delegate the power of passing laws relating to these subjects, more than they can delegate the power to legislate on other subjects.

Nor Have I thought it necessary to refer to the decisions in other states, for the plain reason, also, that our own decisions, since Parker v. Commonwealth, rule the case; while that case was the forerunner of the decisions in all the other states (except Delaware), and with its fall they have lost their chief prop and support.

Decree affirmed and special injunction ordered to remain.

Read, C. J.

— Nearly twenty-six years ago this court held in Parker v. The Commonwealth, 6 Barr 507, the Act of 7th 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,” to be unconstitutional and void. The opinion delivered by Judge Bell was a very able' one, and was concurred in by Chief Justice Gibson and Judge , Rogers. “ Mindful,” says Judge Bell, “ of the ancient institutions of the country, and following the example set by the Federal Constitution, the people of Pennsylvania, when ordaining and establishing a fundamental law for the government of the Commonwealth, decreed that the legislative power shall be vested in a General Assembly, to consist of a Senate and House of Representatives, to be elected at stated periods, by the citizens of the respective counties. They thus solemnly and emphatically divested themselves of all right directly to make or declare the law, or to interfere with the ordinary legislation of the state, otherwise than in the manner pointed out in Article IX., section 20, which declares, ‘ the citizens have a right, in a peaceable manner, to assemble together for their common good, and to apply to those invested with the power of government for the redress of grievances or other purposes, by petition, address or remonstrance.’ This provision, which found a place in the Constitution of 1790, is reiteratéd and re-established by the amended Constitution of 1838, adopted by a vote of the whole people; thus conclusively showing, that the experience of nearly half a century had worked no change in the sentiment which lodged the legislative authority of the Commonwealth in selected and responsible bodies of men, liable to the animadversions of their constituents, as the only safe depository of this portion of the sovereign power. Desiring to interfere no further with the regulated action of these bodies, than in the mode thus expressly reserved, by the right of selecting the delegates composing them, and through the influence which inevitably flows from enlightened public opinion, deliberately and temperately expressed, the people sought to guard against an abuse of the high power they had delegated, by providing a specific mode of election of members of the Senate and House of Representatives by prescribing their qualifications, by stipulating the separate and independent action of the two chambers; by an appeal to the conscience in the oath or affirmation exacted from each member to support the Constitution of the Commonwealth, and to perform the duties of his office with fidelity; and by conferring on the chief executive magistrate the prerogative of the veto, designed for the correction- of hasty and inconsiderate legislation. The system so established is a system of checks and balances, seeking safety in the declared responsibility of the individual agent, and the guardian watchfulness of the co-ordinate branches.”

This legislative power thus exclusively vested in the General Assembly, the court ex;pressly held could not be delegated by the legislature, “ not even to the people themselves; for they have forbidden it by the solemn expression of their will, that the legislative power shall be vested in the General Assembly ; much less can it be relinquished to a portion of the people, who cannot even claim to be the exclusive depositories of that part of the sovereignty retained by the whole community.”

In 5 Watts & Sergeant 283, Chief Justice Gibson, in a few terse words, expressed the true principle: “Under a well balanced Constitution, the legislature can no more delegate its proper function, than can the judiciary.”

The legislature of Delaware had on the 19th of February 1847 passed an Act “ authorizing the people to decide by ballot, whether the license to retail intoxicating liquors shall be permitted among them” (framed upon the plan of our Act of 7th April 1846), and under an election held under it in New Castle county, there was a majority against license. The question of its constitutionality came up before the Court of Appeals in June Term 1847, and is reported in Rice v. Foster, 4 Harrington’s Reports 479. The court, after hearing a most elaborate and exhaustive argument, by very distinguished counsel, were unanimously of opinion that the law was unconstitutional, as it was a delegation of the law-making power to the people.

It is a striking fact, that two separate courts of the last resort in two adjoining states, whose Constitutions both provide that the legislative power of the state “shall be vested in a general assembly, which shall consist of a senate and house of representatives,” in the same year should have decided on the same grounds the two similar laws to be Unconstitutional and void. Two such decisions upon a constitutional question affecting the personal rights of the citizens, and their right to follow certain trades and business, should have an overwhelming authority on the ease before us.

On the 3d of May 1871, an act was passed, entitled “An Act to allow the voters of the. Twenty-second ward of the city of Philadelphia, to vote on the question of granting licenses to sell intoxicating liquors.”

The first three sections simply provide the machinery for a vote at the next annual municipal elec 'on, and at the annual municipal election every third year thereaftt by the voters of the ward on the question of license or no license, by written or printed ballots.

The fourth section enacts, “ that whenever by the returns of election in the Twenty-second wa-d, it shall appear that there is a majority ayainst license, it shall not be lawful for any license to issue for the sale of spirituous, vinous, malt or other intoxicating ■ liquors in said ward, at any time thereafter, until at an election as above provided, a majority of the-voters of said ward shall vote in favor of a license.”

By whom is this law enacted ? Clearly not by the legislature but by the voters, without discussion, and in secret, no man knowing how his next-door neighbor votes, nor his reason for casting his ballot as he has chosen to do. The question, therefore, of license or no license, is decided by a body whom the Constitution has stripped of all legislative power' or authority. This is a legislative question purely, and must be decided by the legislative body itself, openly and publicly, and the yeas and nays may be called at the desire of any two members, and be entered on tbe journals. Tbe question shall license be issued in the Twenty-second ward could only be decided by the legislative body, who never would have answered it affirmatively. This act is therefore unconstitutional and void, and is covered by- the two decisions of 1847.

The 'Act of 1846 embraced only vinous and spirituous liquors; the Act of 1871 extends it to malt or other intoxicating liquors, ' including lager beer, cider, and every possible liquor which may produce intoxication. It is a prohibitory law, and is intended as an entering wedge to the stringent prohibitory laws of Vermont and Massachusetts. But the fifth section, following up the prohibitory action under the fourth section, makes all sales of intoxicating liquors in the Twenty-second ward criminal offences, punishable with a fine of fifty dollars, and confinement in the house of correction or county jail for the period of six months for the first offence, and for the second and each subsequent offence, a fine of $100, and confinement in the house of correction or county jail for the period of one year. Thus the unconstitutional surrender of legislative power to a small body of men, in a contracted locality, enables them to add new crimes to our criminal code, and to inflict on their fellow-citizens punishments of unwonted and uncalled-for severity. Still further, the power to repeal the law thus enacted by the voters of the ward, is given to the voters every three years, one of the most important functions of a legislative body.

If this is be a constitutional enactment, why may not the legislature confer the power upon a minority of the voters, say one-fourth, or make it depend upon the ballot of a single voter ? If they can give the power to a majority they certainly can to a minority.

The cases cited in opposition to Parker v. Commonwealth bear no resemblance to that case, or to the one before us. The case of the common school law was considered in Parker v. The Commonwealth, and distinguished, and the same decision was arrived at, as to a sirui_ lar school law in Delaware, by the Court of Appeals in Rice against Eoster. The other cases as to the removal of county seats, the choice of sites for public buildings, or the subscriptions to railroad stock, are mere acts of executive administration, not laws. The present case is one of morals, of a strong prohibitory character, proscribing certain trades and business heretofore lawful, creating new crimes, inflicting severe punishments, with a power of repeal, all dependent upon the votes of the citizens of the ward, whom the legislature has vested with the full law-making power. The object is plain, to force total abstinence upon a population of 23,000 souls. The legislature never would have passed such an act by a direct vote upon a call of yeas and nays.

In 1870, the population of the city was 674,020, which is rapidly increasing, and it is clear that a prohibitory law proscribing every fluid but tbe waters of tbe Schuylkill and the Delaware, cannot be enforced, and it is only necessary to look at the history of such legislation in Massachusetts and its capital, the City of Boston.

The first movement for entirely prohibitory liquor law was made in the state of Massachusetts, in the summer of 1847, and a petition for that purpose,, numerously signed, was presented to the legislature at its next session in the winter-of 1848: It was referred to a special committee, whorepprted a bill, which, though warmly supported, failed to become a law. In 1851, the legislature of Maine passed their prohibitory law, adopting the measure proposed in Massachusetts, with the addition of what is called the destruction clause. Massachusetts passed prohibitory statutes in 1852, 1855, and 1858; the two last of which were the foundation of 'chapter 86 of the general statutes of that state of 1860, “ of the manufacture, sale, &c., of intoxicating liquors.”

By this chapter 86 a commissioner is appointed annually, by the governor, with the advice and consent of the council, to purchase and sell spirituous and intoxicating liquors of a pure quality, to the several city and town agents, appointed under the provisions of this chapter, and to regularly appointed agents in cities and towns of other of the New England States, and to no other person. He is to establish a place of business in Boston, and all liquors kept for,sale by him shall be analyzed by one of the state assayers, and his sales shall be made for cash, and at a price not exceeding an advance of five per cent, upon the actual cost, together with the cost of such analysis.

The mayor and aldermen, or selectmen of every city and town, are to appoint on the first Monday of May annually, for one year, one or more suitable persons as agents of such place, to purchase and sell spirituous or intoxicating liquors to be used in the arts, or for medicinal, chemical and mechanical purposes, and no other, and every agent must purchase of the commissioner.

Druggists may sell for medicinal purposes only, pure alcohol, to other druggists, apothecaries and physicians, known to be such. “ A chemist, artist or manufacturer, in whose art or trade they may'be necessary, may keep at his place of business, spirituous liquors for use, in such art or trade, hut not for sale; and any person may manufacture or sell eider for other purposes than that of a beverage, and unadulterated wine for sacramental purposes.”

“ Ale, porter, strong beer, lager beer, cider and all wines, shall be considered intoxicating liquors, within the meaning of this chapter, as well as distilled spirits; but this enumeration shall not prevent any other pure, or mixed liquors, from being regarded as intoxicating.”

The county commissioners, and the mayor and aldermen of the city of Boston, may, on the first Monday of May, annually, authorize such persons as apply to them in writing, to manufacture spirituous or intoxicating liquors, and to sell the same in quantities not less than thirty gallons, to be exported, or to be used in the arts or for mechanical and chemical purposes in the state, such authority to continue for one year from the date thereof.”

The 30th section provides penalties for all unlawful sales of spirituous or intoxicating liquors, and the 31st section provides that, “ whoever is a manufacturer of spirituous or intoxicating liquor, or a common seller, in violation of the provisions of this chapter, shall for one violation, pay fifty dollars, and be imprisoned in the house of correction, not less than three nor more than six months; for a second violation, shall pay the sum of two hundred dollars, and be imprisoned six months in the house of correction ; and for any subsequent violation, shall pay the sum of two hundred dollars and be imprisoned twelve months in the house of correction.”

Provision is also made for searching for and seizing liquor intended for sale, forfeiting the same and selling what is suitable for medicines, chemical or mechanical purposes, and destroying what is unfit.

By the 61st section, “ all payments or compensations for spirituous or intoxicating liquors, sold in violation of law, whether in money, labor or personal property, shall be held to have been received without consideration, and against law, equity and good conscience.”

By section 60, all intoxicating liquors kept for sale, and the implements and vessels actually used in selling and keeping the same, contrary to the provisions of this chapter, are declared to be common nuisances.”

Under this statute and subsequent statutes intended to prevent the sale of all intoxicating liquor as a beverage, and limiting their sale to be used in the arts, or for mechanical and chemical purposes', or for medical purposes, a continued scene of litigation has been kept up during 41 volumes of the Reports of the Supreme Judicial Courts of Massachusetts, beginning with 11 Cushing. Every volume has its full share, and in one volume there are 36 cases growing out of this attempt to force its citizens to drink only water. These eases form a very large portion of the legal literature of Massachusetts, and exhibit the folly of forcing total abstinence by a law which is broken every day and every hour in the city of Boston.

It is notorious, that liquor may be had in every hotel, restaurant, and oyster saloon in Boston. The law is in fact a dead letter, the evil being to encourage deception, falsehood and fraud, and to accustom citizens to a daily violation of law.

Messrs. Reuter & Alley, of Boston, are the most extensive brewers in the United States, producing 118.000 barrels of ale per annum.

In a very able article in tbe British Quarterly Review for April 1872, on the licensing system, written by a true friend of temperance, we find the following: “ Boston is the chief city of the state of Massachusetts, in which the sale of intoxicating liquor is prohibited. When an investigation was set on foot, into the working of the prohibitory law in Boston, it was found that there were about 2000 places where liquor could be obtained. The author of a new and interesting book on the United States, says, with reference to the prohibitory legislation on liquors: Wherever an overwhelming temperance sentiment exists, wherever, in short, the majority of the people are opposed to the use of liquors, prohibitory legislation succeeds. In all' other cases it has proved a failure. In Massachusetts, the people were spending 2i. per head on strong drinks in the face of the Maine liquor law. ‘ We are all for the Maine law,’ said a man to Mr. Macrea, but we are agin its enforcement.’ The law had, in fact, gone further than popular sentiment would bear it out.”

The brewers in Philadelphia produce 600,000 barrels of malt liquor annually, giving employment to nearly one thousand men, and consuming in its manufacture a million and a-half bushels of barley of the value of $1.10 per bushel. Ale is a healthy liquor, and lager beer is a favorite beverage, particularly of our large German population.

The question of license or no license is to be submitted to the citizens of Philadelphia, at thé general election in October, and if the vote is against license, then the city will be under a prohibitory liquor law during the whole Centennial celebration to which we have invited the whole country. On the 4th July 1776, every ■ patriot drank to the independence of the thirteen states; shall it be that on the 4th July 1876, all we can lawfully offer to our guests on this great anniversary, will be a glass of Schuylkill water, seasoned with a lump of Knickerbocker ice ?

I am a strong believer in temperance. For twenty-five years of my life, I drank nothing but water, but a dangerous illness made a strong stimulant an absolute necessity, and by the advice of my physician, I am obliged occasionally to resort to it. Some of my friends older than myself, have drunk wine all their lives, and are temperate men. I believe in moral suasion as the true means of • advancing the temperance cause, but I do not believe in a prohibitory law which would reduce us to the condition of Boston.

After the dissenting opinion of Chief Justice Read, Judge Sharswood made the following remarks from the bench :—

I concur in the opinion that has just been read, and I do not know that I have anything to add. The result of all the authorities on this subject, which I don’t understand to be denied, is, that it is not competent for the legislature to delegate the law-making power. The point of discussion seems to turn upon what is a law.

It is clear there are a great many things which the legislature can do, and which it is in the habit of doing, and which constitute acts of the legislature, which in the sense of Parker v. The Commonwealth, are not laws. There are a good many acts of executive administration which they can delegate to the courts, or to the municipal corporations, or to the people of the different districts. But a “law,” properly speaking, is a rule of conduct prescribed by the supreme power of the state, commanding what is right and prohibiting what is wrong.

Now I think no one would doubt, if the legislature were to submit to the people of a county, or township, or ward, the question, whether murder should be punished by imprisonment only, and let the people vote “ capital punishment” or “ no capital punishment,” that would be a law, and the legislature could not delegate it to the people. Does a law, such as the one before us, differ from this ? Is it any less a rule of civil conduct than that would be? It seems to me that the question whether there shall be license or ho license, is a rule of civil conduct, commanding what is right, and prohibiting what is wrong. It leaves to the people to decide what is right or wrong.

The cases that are cited as overruling Parker v. The Commonwealth, are not of the character to which I have referred; they are mere acts of executive administration. It was left to the people to determine by vote where the county seat should be. That could have been left to the county commissioners to determine, or to the courts, or to the people ; so the question of subscriptions to railroad stock. It is not a law. So whether part of the surrounding country shall be consolidated into the city; so with the location of public buildings. So the school tax might have been left to the school directors. These are all acts of executive administration, and therefore not laws, in the sense in which the term is used in Parker v. The Commonwealth, and in the sense in which it was decided that the legislature has no power to delegate its authority, as I think is done in this case.


source: Caselaw Access Project

author: Mercur, J.

license: Public Domain

text:
    The Danville, Hazleton and Wilkesbarre Railroad Co. versus The Commonwealth.
    1. The rights, &c., enjoyed by the Sunbury and Erie and the Pennsylvania Railroad Companies “ for settling and obtaining the right of way,” do not include the mode of settling differences between township authorities and a railroad company which had taken possession of a public road.
    2. Such settlement and acquisition relates to private property, which under the Constitution cannot be taken by a corporation without compensation.
    3. An act gave a railroad company power to construct its railroad on a public road, and provided that if in its construction it should be necessary to change a public road, &c._, they should “cause the same to be reconstructed in the most favorable location and in as perfect a manner as the original road.” This does not require that the making of the new road shall precede the occupying of the old road.
    4. The legislature may authorize building a railroad on a public road.
    5. A railroad company occupying a portion of a public road not exceeding the extent allowed by law, and obstructing public travel on such portion, is not guilty of nuisance.
    January 30th 1873.
    Before Bead, C. J., Agnew, Williams and Merour, JJ. Sharswood, J., at Nisi Prius.
    Certiorari to the Court of Quarter Sessions of Northumberland county, of September Term 1872.
    On the 1st day of November 1869, The Danville, Hazleton and Wilkesbarre Bailroad Company were indicted in the Court of Quarter Sessions of Northumberland county, for nuisance.
    The indictment contained two counts:—
    The first set . out that there was a public highway from a point in another highway, in the township of Bush, in Northumberland county, near the southern end of the bridge over the Susquehanna river, at Danville, to and through Elysburg, in the county aforesaid ; that the defendants “ dug up and subverted ” 1200 yards in length, 30 feet in breadth, and 15 feet in depth, of the highway, and kept it so dug up, &£., whereby it “has been and yet is obstructed, stopped up, narrow and dangerous, so that the citizens of the Commonwealth have been and still are hindered and obstructed in passing,” &c.
    The second count set out that the defendants dug up, &c., 100 feet in length, 50 feet in breadth, and 15 feet in depth, of the same highway, and kept and maintained it so dug up, &c., and thereby obstructed the travel of the citizens of the Commonwealth.
    By special verdict the jury found that the Act of 15th of April 1859 authorized the incorporation of the Wilkesbarre and Pitts-ton Railroad Company, “to construct a railroad along and near the Susquehanna river and to be constructed as near to it as practicable on the east side of the Susquehanna river from the Lackawanna and Bloomsburg Railroad, above the borough of Pittston, in Luzerne county, along said Susquehanna river to the town of Danville or Sunbury, with the right to cross and recross the Susquehanna river at any point,” &c.
    That the act further provided that the company might connect with other railroads, and by section 4, should “ have all the rights and privileges enjoyed for the settling and obtaining the right of. way as now enjoyed by the Sunbury and Erie and Pennsylvania Central Railroad Companies;” * * * and, by section 5, should have “the rights and privileges and be subject to all the instructions of the act regulating railroad companies passed the 19th day of February, A. D. 1849.”
    They further found that by Act of April 10th 1867, the name of the Wilkesbarre and Pittston Railroad Company was changed to “The Danville, Hazleton and Wilkesbarre Railroad Company.”
    The company, by the same act, was “ authorized to commence the construction of their railroad at any point on the line thereof, and the said company may locate and construct their railroad by the most practicable route their engineers may select, and may cross any other horse and locomotive railroad, at grade or otherwise, or connect therewith.”
    They further found that, by Act of May 8th 1854, it was provided “ that in all cases of difference arising between the Sunbury and Erie Railroad Company and the supervisors of any township relative to any road, causeway or bridge which has been or may be altered or supplied by the said Sunbury and Erie Railroad, the Court of Quarter Sessions in the county of which the same may lie shall appoint three commissioners, who shall examine the matter in dispute, and their decision or that of a majority of them shall be final and conclusive between the parties,” &c.
    And that by Act of March 20th 1849, supplementary to the act incorporating the ’ Pennsylvania Railroad Company, it was provided that: “Whereas, the legislature by the 5th section of the act passed the 27th day of March 1848, entitled a further supplement to an act to incorporate The Pennsylvania Railroad Company, did provide that if the said railroad company shall find it necessary to change the site of any portion of any turnpike or public road, they shall cause the same to be reconstructed forthwith at their own proper expense, in the most favorable location and in as perfect a manner as the original road; but there is no provision made for compelling the said company to comply with this law, therefore,
    “ Be it enacted, That if by the construction of this road by the Pennsylvania Railroad Company, it shall have been or may hereafter be necessary to change the site of any portion of any turnpike or public road, when the necessary time shall have elapsed to have enabled the said railroad company to comply with the provisions of the 5th section of the Act of the 27th'of March 1848, requiring them to reconstruct such turnpike or public road, it shall be the duty of the Court of Quarter Sessions of the county in which such turnpike or public road shall be located, upon the petition of the company owing the said turnpike, or of any twelve or more citizens of the township in which .the said public road may be, to appoint three competent persons, * * * to view the place where the said turnpike or public road was, and make report to the said court at their next session, whether the said Pennsylvania Railroad Company have complied with their duty in making said turnpike or public road as they are required by the said law to do, and if the said viewers shall report to the said court that the Pennsylvania Railroad Company has complied with the provisions of the said Act of Assembly, and the said report shall be approved by the court, an order shall be made that the costs and expenses of the said view shall be paid by the petitioners; but if the viewers shall report to the said court that the said company has not complied with the provisions of the said Act of Assembly, and the said report shall Ije approved by the court, the expense thereof shall be paid by the said railroad company; then it shall be the duty of the said court to order and decree that the said turnpike or public road, as the case may be, shall be made, finished and completed as the said Pennsylvania Railroad Company, by the provisions of the 5th section of the Act of 27th of March 1848, were bound to finish and complete the same.”
    They further found: “ That before the passage of any of the said Acts of Assembly and until and at the time of the committing and doing of the acts and things hereinafter mentioned by the said The Danville, Hazleton and Wilkesbarre Railroad Company, there was and from the committing and doing of the said acts and things hereunto there ought to have been and still of right ought to be a common and public highway leading from a point in another public highway in the township of Rush, in the county of Northumberland, near the southern end of the bridge over the North Branch of the river Susquehanna at Danville, to and through Elysburg in the county aforesaid, for all the citizens of this Commonwealth to go, * * * and that the said The Dan-ville, Hazleton and Wilkesbarre Railroad Company located its railroad upon and along a part of the said first-mentioned common and public highway in the said township of Rush and county aforesaid, and afterwards, on the 1st day of July, A. D. 1868, in constructing the bed of its said railroad, dug up, &c., that part of the said common and public highway in the said township of Rush, upon which it had located its said railroad for 875 yards in length and in width varying from 1 to 20 feet, and in depth varying from 1 to 15 feet, and constructed its railroad thereupon, and has kept, &c., the same so dug up, &c., whereby the said highway during the time aforesaid has been and yet is obstructed, narrow and dangerous, so that the citizens of this Commonwealth during all that time have been and still are hindered and obstructed in passing, &c., and that the said The Danville, Hazleton and Wilkes-barre Railroad Company did not and have not at any time caused the said part of the said highway so dug up, &c., and occupied by its said railroad as aforesaid to be reconstructed either in the most favorable location or in as perfect a manner as the original road, and that though the said The Danville, Hazleton and Wilkesbarre Railroad Company did cause to be constructed a new road leading around the said part of the said highway so dug up, &c., yet the said new road was not constructed on the most favorable location, or in as perfect a manner as the original road, but on the contrary was very badly located and is steep, narrow and hilly, and in all these respects much inferior to the original road and unfit for public use, and that the said highway continued to be used and is still used by all the citizens of this Commonwealth to go, &c., though a part of the same common and public highway was during all that time greatly narrowed and obstructed by reason of the same having been dug up and occupied by the bed of the said railroad of the defendants. That since the finding of the said inquisition the said The Danville, Hazleton and Wilkesbarre Railroad Company has partially widened the said part of the said highway where the same adjoins the part of the same which was dug up, &c., and that the road so widened is upon the most favorable location for the said road, but was not and is not reconstructed in as perfect a manner as the original road, but on the contrary is in some places narrowed and more dangerous than the original road, and by reason thereof less fit for the public use or travel.”
    They further found that no proceeding had been had in relation to the highway under the provisions of the aforementioned acts, relating to the Sunbury and Erie and the Pennsylvania Railroads.
    But whether on the whole matter found, the provisions of the acts relating to the Sunbury and Erie and the Pennsylvania Railroad Company “ apply to or affect the Danville, Hazleton and Wilkesbarre Railroad Company or not, and if they do whether either of the said last-mentioned acts supersede the proceedings under this indictment against the said The Danville, Hazleton and Wilkesbarre Railroad Company for occupying a public highway with their railroad, and whether any proceedings under either of the said mentioned acts are by law necessary before the commencement of such proceedings by indictment, the jurors aforesaid are entirely ignorant, and if * * * it shall appear to the court that the said last two mentioned Acts of the General Assembly apply to the said The Danville, Hazleton and Wilkesbarre Railroad Company, and that they or either of them under the facts found by the jurors as aforesaid supersede these proceedings by indictment, or that proceedings under either of the said ^ast-mentioned acts were by law necessary before the commencement of the proceedings by indictment in this case, or that upon the facts as aforesaid found, the court be of opinion that the defendants are not indictable in manner and form as indicted; then the said jurors say that the defendant is not guilty on the first count of the said indictment.” But if the court should be of opinion otherwise, they found the defendants guilty on the first count of the indictment.
    The jury further found that the part of the highway narrowed, &c., by having been dug up, &c., by the defendants on the 28th of October 1869, “ was in length one hundred feet, and in breadth ten feet, and in depth ten feet, and that the defendants kept, &e., this part of the said public highway thus dug up, &c., for the space of one day, so that the citizens of this Commonwealth during all that time were hindered and obstructed in passing, &e., and that the defendants caused the said part of the said public highway to be dug up and subverted to prevent the passage of citizens and travellers along the same and to compel them to pass along and travel upon the aforesaid new road constructed around the part of the said public road dug up and subverted and occupied by the said railroad as mentioned in the first count of this indictment; but whether upon the whole matter found, &c., the provisions aforesaid relating to the Sunbury and Erie and the Pennsylvania Railroad Companies -apply to or affect the defendants, and if they do, whether either of the said last-mentioned Acts of Assembly supersede the proceeding by indictment against the defendants, and if not whether any proceedings under either of the said last-1 mentioned Acts of Assembly were by law necessary before the commencement of such proceedings by indictment, the jurors are entirely ignorant; and if upon the whole matter aforesaid it should appear to the court that the said Acts of Assembly apply to the defendants, and that they or either of them supersede the proceedings by indictment in this case, or that proceedings under either of the said last-mentioned Acts of Assembly are by law necessary before the commencement of the proceedings by indictment, or that the defendant is not indictable in manner and form as indicted, then the jury say, that the defendant is not guilty on the second count of the said indictment. But if upon the whole matter ” the court be of a contrary opinion, the jury find the defendants guilty on the second count.
    The questions in the case were:—
    1. Whether the supervisors were not bound to pursue the special remedy provided for the settlement of disputes between supervisors of any township and the' company relative to any public road, under the provisions of the acts of incorporation and supplements.
    2. Could the Danville, Hazleton and Wilkesbarre Railroad Company be convicted under the indictment for obstructing a public highway without charging that the defendant refused or did not reconstruct a new road in place of the one occupied ?
    The court (Rockefeller, P. J.) were of opinion that the provisions of the Acts of Assembly relative to the Sunbury and Erie and Pennsylvania Railroad Companies, mentioned in the special verdict, did not apply to or affect the defendants nor supersede the proceedings by indictment; and that no proceedings under either of those acts were necessary before the commencement of proceedings by indictment; and that the provisions of the Acts of Assembly above mentioned did not supersede the proceedings by indictment against the defendants for the things committed on the 8th of October 1869, as found by the special verdict, and that the defendants are “indictable in manner and form as indicted.”
    The court sentenced the defendants to pay a fine of $10 and the costs, and directed them to abate the nuisance.
    The defendants removed the record to the Supreme Court by certiorari, and assigned for error that the court erred:—
    1. In deciding that, under the findings of the special verdict, the provisions of the Acts of Assembly mentioned in it did not apply to or affect the defendants, and that they did not supersede under the facts found by the jury these proceedings by indictment, and that no proceedings under either of the said acts were by law necessary before the commencement of these proceedings by indictment.
    2. In deciding that under the finding the defendants were indictable under the indictment in this case.
    3. In deciding that the provisions of the Acts of Assembly mentioned in the finding did not supersede the proceedings by indictment against the defendants for causing the things committed on the 28th of October 1869, as found, by the special verdict, and that the defendants were indictable in manner and form as indicted.
    4. 5. In sentencing the defendants' to pay a fine of $10 and costs, and directing them to abate the nuisance.

      5. Q-. Thompson and 8. P. Wolverton, for plaintiffs in error.—
    The company could by law take possession of a public road to construct their railroad upon it, and therefore this act was not a nuisance : Commonwealth v. Erie and N. E. R. R., 3 Casey 339. The legislature is presumed to know that the railroad would be an impediment to travel: King v. Pease, 4 B. & Ad. 17 ; King v. Russell, 6 Barn. & Cress. 566 ; King v. Morris, 1 B. & Ad. 441; Queen v. Scott, 3 Q. B. 543; Newburyport Turnpike v. E. Railroad, 23 Pick. 326; Commonwealth v. Wilkinson, 16 Id. 175; Commonwealth v. Pittsburg, F. W. & Ch. R. R., Pitts. Leg. I., Jan. 2d 1858, Vol. 5, No. 35. A railroad built by authority of law is not a nuisance: Phila. and Trenton R. R. Case, 6 Whart. 25; Hickman v. Patterson, &c., R. R. Co., 2 Green (N. J.) 75 ; Bordentown and S. Amboy Turnpike v. Camden and Amboy Railroad, 2 Harr. 314; Davis v. The Mayor of New York, 14 N. Y. R. 506 ; Fletcher v. Auburn and Syracuse Railroad, 25 Wend. 463; Drake v. Hudson River Railroad, 7 Barb. 508 ; Hentz v. Long Island Railroad, 43 Id. 646; Harris v. Thompson, 9 Id. 356 ; Milhau v. Sharp, 15 Id. 193 ; Stuyvesant v. Pearsall, 15 Id. 244; Williams v. N. Y. Central R. R., 18 Id. 222; Harris v. Thompson, 9 Id. 350.
    The words in the act “ to be reconstructed forthwith,” do not mean that a new road should be constructed before the company should occupy the old one, but in a reasonable time under the circumstances : Styles Reg. 452, 453. The remedy provided by the act must be pursued: Act of March 31st 1806, sect. 13, 4 Sm. L. 332, 1 Br. Purd. 58, pl. 5; Commonwealth v. Capp, 12 Wright 53; Koch v. Williamsport Water Co., 15 P. F. Smith 288; Railroad Co. v. McLanahan, 9 Id. 23.
    The railroad company having occupied the public road in question in pursuance of lawful authority, this prosecution cannot be sustained.
    If indictable at all it could only be for not supplying a good road in place of the one occupied, and not in manner and form as indicted.
    A specific remedy having been provided, it must be pursued.

      J. W. Qomly (with whom was Q-. W. Ziegler), for the Commonwealth.
    —If the powers granted to a corporation cannot be exercised without disregarding the restrictions with which they are coupled, they cannot be executed at all: Commonwealth v. Erie & N. E. Railroad, 3 Casey 339; Queen v. Scott, 3 Q. B. 543. The special verdict finds that the railroad is a nuisance as to such a road : Harvey v. Lackawanna & Bl. Railroad, 11 Wright 428. The new road should have been made before the old one was closed: Queen v. Scott, supra ; Queen v. Great North. & E. Railway, 9 Q. B. 315. Reconstruction of a new road was matter of proof by defendants on the trial: Commonwealth v. Church, 1 Barr 105; Chitty’s Crim. L. 23; 1 Whart. Am. Or. L., sect. 378.
   The opinion of the court was delivered, July 2d 1873, by

Mercur, J.

The Wilkesbarre & Pittston Railroad Company (to whose rights the plaintiff succeeded) was incorporated under the Act of 15th April 1859. The fifth section of said act provides, “that this company shall hereby have the rights and privileges and be subject to all the restrictions of the act regulating railroad companies, passed the 19th day of February, A. D. 1849.” This language is sufficiently comprehensive to subject it to the general railroad law to which it refers. It is contended, however, by the plaintiff, that inasmuch as the fourth section of said act declares “ that said company shall have all the rights and privileges enjoyed, for the settling and obtaining the right of way, as now enjoyed by the Sunbury and Erie and Pennsylvania Central Railroad Companies,” that this extends to, and includes, the mode of settling differences between township authorities and a railroad corporation, when the latter has taken possession of a public road. We cannot concur in this construction of the statute. We do not think “settling and obtaining the right of way” was designed to include the rights of the public in a public highway. That language is evidently designed to be restricted to the settlement and acquisition of that private property which, the Constitution says, the legislature shall not invest any corporate body with the privilege of taking for public use, without requiring such corporation to make compensation to the owners thereof, or give adequate security therefor before such property shall be taken. The statutes referred to designate the manner in which the right of way over private property may be acquired by these corporations. The said fourth section of the Act of 15th April 1859 must be held as referring to the right of way over private property only, and not extending to public property. Hence, we discover no error in the first and third assignments. The second assignment presents the important question in the case. The thirteenth section of the Act of 19th February 1849, 2 Br. Purd. Dig. 1221, pl. 39, declares “if any such railroad company shall find it necessary to change the site of any portion of any turnpike or public road, they shall cause the same to be reconstructed forthwith at their own proper expense, on the most favorable location and in as perfect a manner as the original road.” The plaintiffs’ railroad was located between the east bank of the Susquehanna river and Blue Hill. In the construction thereof, along the base of said hill, it became necessary to occupy so much of the public road, for a distance of 875 yards, as to hinder, obstruct and make dangerous the travel over the same. A change of the site of so much of said public road became necessary. Before occupying this road, the plaintiff constructed a new road, in lieu thereof, over the hill, and opened it for public use. This new road, however, was not con•structed on the most favorable location, and in as perfect a manner as tbe original road. It so continued for more than a year after the old road was obstructed, and down to the time of finding this indictment — subsequently, and before the trial, the plaintiff partially widened the public highway along the track of .said railroad, upon the most favorable location; but did not reconstruct the same in as perfect a manner as the original road. The defendant contends that this omission by the plaintiff to reconstruct a public road, makes the appropriation of the old road illegal and subjects the company to an indictment therefor. The indictment, therefore, does not charge the plaintiff with neglecting or omitting to reconstruct a road in lieu of the one occupied by the railroad, but with obstructing and stopping up the old public road. The effort is to convict the plaintiff for obstructing the old road by reason of its failing to construct a new one. Can this be done ? In support of the affirmative, the case of Reg. v. Scott, 3 Q. B. 858 (43 E. C. L. R.), has been cited. It is true an indictment was there sustained against the engineer and other persons, acting on behalf of th.e Manchester and Leeds Railway Company, for obstructing a road before constructing a new one in lieu thereof; but that is based upon the language of the statute. After authorizing a railroad corporation to make obstructions in public or private roads for the purpose of their undertaking, the statute expressly declares “ before any such road shall be so cut through, taken or injured as aforesaid,” the company shall cause a good and sufficient road to be set out and made instead thereof. The making of the new road was therefore a condition precedent to the right of the corporation to break ground in the old road. In ruling the case, Lord Denman, C. J., said, “ the company have not done what the act legalizes only on a condition which they have not performed.” So in Reg. v. The Great North of England Railway Company, 8 Q. B. 314 (58 E. C. L. R.), it was held, in an opinion given by the same chief justice, that a corporation aggregate might be indicted for misfeasance or nonfeasance under the‘same statute, in not conforming to the powers conferred on the company by Act of Parliament. The language of our statute is entirely different. It nowhere' declares that the making of a new road shall precede the taking possession of the old one. It gives an unconditional power to a railroad company to construct its railroad upon a public road, but commands what the company shall thereupon do. The legislature authorizes the original highway to be changed to another form of highway. The Act of February 19th 1849 gives to all railroad corporations, subject to its provisions, the right to take possession of such portions of any public road, as come within the line of its track. When the construction corps strikes a public road, it is not obliged to pause and seek for an agent of the Commonwealth to whom payment must be made, or adequate security be tendered before breaking ground. The statute has provided the character and extent of the compensation which it shall render to the public, consequent upon taking a public road. Legislative wisdom has not said that payment shall precede the taking. The power of the legislature to authorize the building of a railroad upon a public road is indubitable: Phila. & Trenton Railroad Co., 6 Whart. 25; Green v. Borough of Reading, 9 Watts 382; Henry v. Pittsburg & Allegheny Bridge Co., 8 W. & S. 85; O’Connor v. Pittsburg, 6 Harris 189 ; Mercer et al. v. Pittsburg, Ft. Wayne & Chicago Railroad Co. et al., 12 Casey 99. To the Commonwealth belongs the franchise of every highway within its limits as a trustee of the public. Every public road therein exists by force only of the Commonwealth’s authority. So every railroad has its franchise by grant from the state: O’Connor v. Pittsburg, supra. As the statute then authorized the plaintiff to appropriate so much of the public road as was necessary for its purposes, and the portion taken did not exceed the width fixed by law, it follows that the taking, in pursuance of law, cannot be a public nuisance: Fletcher v. Auburn & Syracuse Railroad, 25 Wend. 463; Drake v. Hudson River Railroad, 7 Barb. 508; Harris v. Thompson, 9 Id. 350. In this case the court well said, “ it is a legal solecism to call that a public nuisance which is maintained by public authority.” In People v. Law et al., 34 Barb. 502, the court said that taking a street or highway for the purpose of a railroad is taking it for public use, is settled by repeated adjudications and can no longer be regarded as an open question. A structure authorized by the legislature cannot be a public nuisance. A public nuisance must be occasioned by acts done in violation of law. A work which is authorized by law cannot be a nuisance: Rex v. Pease, 4 Barn. & Ad. 17; Commonwealth ex rel. Attorney-General v. Pittsburg, Fort Wayne & Chicago Railroad Co., Pittsburg Legal Journal, January 2d 1858, Vol. 5, No. 35. We think, therefore, the learned judge erred in holding the conviction good under the first count of the indictment. The second count was not pressed, besides the act therein charged appears to have been done within the limits which the plaintiff was authorized to appropriate to its use. The second assignment is therefore sustained. This necessarily sustains the fourth and fifth assignments. Whether the plaintiff would have been liable to an indictment, if charged with not reconstructing the road in a reasonable time, does not arise under this indictment, and we therefore do not express any opinion in regard to it. We hold this conviction is contrary to the whole spirit of the statute which authorizes a railroad company to lay its tracks upon a public highway, therefore

Judgment reversed and judgment entered in favor of the defendant below.