3 Pen. & W. 253
Pa.
1831

*259The opinion of the court was delivered by

Gibson, C. J.

That the government of every incorporated town, has a right to improve the streets for public purposes, whether as high ways or places for cisterns or wells, is a proposition about which there can be little dispute. It is difficult to imagine a subject to which the incidental rights of a municipal corporation, more appropriately extend; and these, where they exist at all, are necessarily exclusive. It has doubtless been a practice, for the inhabitants to sink wells in the street, at their particular cost, but being beneficial to the public, as well as the individual, and therefore, affording no occasion to contest the right, these have been by sufferance and. in subjection to the corporate franchise. The title of the corporation to the soil, for uses that conduce to the public enjoyment and convenience, is paramount and exclusive; and no private occupancy for whatever time, and whether adverse or by permission, can vest a title inconsistent with it. The case of the Commonwealth v. McDonald, by which this salutary principle has been conclusively established, is founded in the purest reason, and fortified by the strongest authorities. Without, then, attempting to fix the limits of our own power, in respect to prerogative writs, it is sufficient to say that the suggestion of right on which the prohibition is prayed for here, is altogether groundless in fact, so that were we to take the existence of the power for granted, we should certainly not deem the present case a proper one for the exercise of it. The principal question, therefore, is that which regards the competency of the corporation to make the bye-law on which the defendant has been convicted.

In this bye-law, the mischief to be'suppressed is declared a misdemeanor to which a penalty is annexed, with imprisonment in default of payment, on conviction by the mayor or an alderman. No power to commit is given to one of these in the charter, nor is it vested in the corporation, either expressly or by necessary implication, without which, an exercise of legislative authority, such as was assumed in the enactment of the ordinance, may not be supported on the principles of the common or statute law; and for this we have an abundance of authority. In Clarke’s case, 5 Co. 64, the defendant attempted to justify an imprisonment of the plaintiff, under a bye-law of the town of St. Albans, by which it was ordained, that any one who should refuse to pay certain assessments, might be imprisoned; and the plea was adjudged ill. It was held even that the plaintiff’s assent to the ordinance, would not have altered the law, though it was conceded, that a reasonable penalty might have been inflicted. So a bye-law that an offender shall forfeit forty shillings and' be imprisoned in default of payment, has been held ill. 1 Roll. Abr. 364; and in the first resolution, in the King v. Clerk, 1 Salk. 349, it was conceded, that a corporation *260might have power to commit by custom, but'not by charter or byelaw; and the same principle was resolved in Wood v. The Mayor and Commonality of London, id. 370. So too, in the King v. The Merchant Tailors of London, 2 Lev. 200. The foundation of the principle is said, in Clarke's case, to be the often quoted provision in Magna Charta, Nullus liber homo eapiaturvel imprisonetur nisi per legale judicium paritjm stjorum, vel per legem terrae; the substance of which is secured to us in the Bill of Rights. Now if the charter even purported to confer a power to imprison on summary conviction and without appeal to a jury, it would be so far unconstitutional and void. But it purports to give no such power, being framed on the model of the charter of Philadelphia, under which, it is remarkable, that notwithstanding the natural tendency towards excess in every depositary of power, but one ordinance has been passed, which could, by any construction» be made to authorize the enforcement of a penalty by summary conviction. Of the one hundred and sixty-one contained in Mr. Lowber's edition of the ordinances, the one passed on the 13th of July, 1809, to punish for removing, injuring or defacing stones or marks placed to regulate the ascent or descent of streets, alone imposes a penalty to be recovered by conviction, before the mayor, recorder oran alderman: Lowb. Ord. 228; and the conviction thus spoken of, was probably intended to signify a recovery by action, the word having been used incontestably in that sense, in an ordinance passed the 14th June, 1790, id. 124-5. This temperate and guarded use of their powers, is highly creditable to the councils of that city. Admitting then, as seems to have been done by Lord Mansfield, in Hesketh v. Braddock, 3 Burr. 1858, that a corporation may provide by its inherent powers, for the recovery of a penalty from its own 'members by action of debt in its own court, the question occurs, what is the individual jurisdiction of these aldermen, or what, in subordination to the constitution, is the legislative power of this corporation, by the provisions of its charter? By the eighteenth section, the mayor and aldermen are to have the jurisdiction of Justices of the Peace, and subject to the same right of appeal to the common pleas; but this, which is the only jurisdiction that is given to them individually, is insufficient to authorize them to convict summarily, or even to entertain an action of debt for a penalty. Zeigler v. Gram, 1 Serg. & Rawle, 102. If, then, the.legislature did not think fit to vest such a jurisdiction, was the corporation competent to vest it? It is proper to remark, that as justices of the peace, the aldermen are not officers of the corporation. In that aspect their duties and jurisdiction are, in their nature and extent, the duties and jurisdiction of the justices in the adjoining'townships, and bear exactly the same relation to the government and ordinances of the city. They are corporate officers, only in their character of aldermen, properly so called, or *261in other words, judges of the Mayor’s Court; and how the corporation can confer a jurisdiction on a justice of the peace, whose functions are independent of it, or even on its own officer, which the legislature has not expressly authorised it to confer, I am unable to imagine. Even were its inherent legislative power extendable to its officer, it could not be extended to the Common Pleas, «o as to confer appellate jurisdiction on that court, without which the summary proceeding of the corporate officer would be unconstitutional. No such power was intended to be exercised by it. By the fifth section of the charter, the councils are authorized to make such bye-laws, not being repugnant to any constitutional principle, ‘fas shall be necessary or convenient for the government and welfare of the said city, and the same to enforce, put in use and execution by constables or other proper officers.” This evidently has reference to executive officers. In addition, the councils are to have the powers that belonged to the government of the place when it was a borough, as well as those that are vested in the Select and Common Councils of Philadelphia, none of which relate more specifically to the delegation of judicial authority, than those granted generally in the preceding part of the section. How, then, is the criminal justice of the corporation to be administered? By the eleventh section, it is provided that the mayor and aldermen, shall not only hear and determine crimes and misdemeanors against the laws of the commonwealth, but “also inquire of, hear, try and determine all offences, which shall be committed within the said city, against any of the laws, ordinances, regulations or constitutions, that shall be made, ordained and established, in pursuance of this act, and punish the offender or offenders, as by the said laws, ordinances, regulations or constitutions, shall be prescribed or directed;” and in order to do this, they are authorized to hold a court of record, with the jurisdiction of a Court of Quarter Sessions, to inquire of offences against the commonwealth. And by the twenty-fourth section it is directed, that “for the recovery of fines, forfeitures, penalties, debts and other demands, cognizable in the city court, the ordinary forms of law shall be pursued in the process, judgment and several kinds of executions, as if the same were cognizable in the courts of the county.” Here, then,' is a court of record, to whieh proceeding by the forms of the common law, jurisdiction is explicitly given, the exercise of which stands clear of all objection on constitutional ground; and to it must be referred the punishment by indictment or penal action, as may be prescribed in the ordinance, of every offence by which a fine, forfeiture or penalty has been incurred in consequence of a breach of the corporation laws. It might perhaps be convenient, to give the aldermen separately, jurisdiction of penal actions, as in other cases of debt, whore the amount is the same; but that can be done only *262by the legislature. It is, however, not the matter in hand, and we at present decide no more, than that this conviction can not be sustained.

Conviction quashed.