| Pa. | May 17, 1873
The opinion of the court was delivered, May 17th 1873, by
We cannot review the wisdom or the expediency of legislative enactments. They must violate some prohibition, expressly declared or clearly implied, of the constitution of this state or of the United States, before we can pronounce them to be unconstitutional.
Whatever power of taxation the legislature possesses, it may delegate to a municipal government, to be legitimately exercised within its corporate limits.
The right of the legislature to exempt certain classes of property, as well as classes of persons from taxation, has always been recognised in this state. Thus, churches, meeting-houses, burial-grounds, universities, colleges, academies, school-houses, courthouses and jails, have been exempted “from all and every county, road, city, borough, poor and school tax:” Act of 16th April 1838, Purd. Dig. 1368, pl. 77. So all lands granted to officers and soldiers of this state for services in the armies of the Revolution, were exempted during the lifetime and ownership of the grantee: Act of 1st March 1780, 1 Sm. Laws 479. So, during the late war for the suppression of the rebellion, volunteers who were in service or who had been honorably discharged therefrom, were in many cases excepted from taxes laid to pay bounties to volunteers: Act of 14th April 1863, Pamph. L. 443, § 4; also from a per capita tax, Act of 25th August 1864, Pamph. L. 987. In the exercise of the power of taxation, persons and things may be classified. Some classes may be. taxed, other classes may be exempted. Thus, the Act of April 29th 1844, Pamph. L. 497, imposed a state tax upon “ all professions, trades and occupations, except the occupation of farmers.” Again some species of property may be taxed for one purpose and not for another. If the taxation is upon all of a class, either of persons or things, said" Justice Sharswood in Durach’s Appeal, 12 P. F. Smith 494, “it matters not whether those included in it be one or many.” We are unable to see anything in the Act of 2d April 1872, which conflicts with the prohibitory clauses in the constitution, and the learned judge was correct in so holding.
The remaining question is, does the Act of 2d April 1872, sup
First. The act authorizes the city authorities to require the payment, by ordinance or other general regulation, of license fees, for police purposes, from the owner or lessees of certain vehicles of burden or pleasure, let for hire or used in carrying goods or persons for pay: also, from auctioneers or other vendors of merchandise, or articles by outcry or bidding; also, from the owners, occupants or lessess of bowling-alleys and billiard tables, for the use of which pay is demanded; and also of all other places of business or amusement conducted for profit. We have changed the relative position of some of the paragraphs in order to present more clearly the different classes of persons and things, subject to the payment of licenses. It will be seen they are: 1st. Persons using vehicles for certain purposes: 2d. Persons pursuing their occupations in a particular manner: 3d. Persons keeping for pay, certain places of amusement; the act specifically designating “bowling-alleys and billiard-tables,” only. Then follows the clause: “ also, all other places of business or amusement conducted for profit.” Under this, the ordinance in question, has imposed license fees or taxes upon merchants, bankers, brewers, druggists, hotel keepers and upon persons engaged in many other branches of industry, some of whom have filed this bill. We do not think the act is broad enough to cover these classes. They are not within its scope and object. If the design of the law had been to impose this tax upon every person engaged in carrying on any branch of industry in the city, more certain and specific language would have been used. The fair import of the words used, taken in connection with the kind of property specifically designated and charged is, that “ the other places of business or amusement” should be of purpose and character, similar to bowling-alleys and billiard-tables.
The ordinance therefore should have been so limited — such, we conceive, being the true intent and meaning of the act, the ordinance has no basis upon which to rest, and is necessarily invalid.
Secondly. The penalties imposed by section six of said ordinance, for a failure to pay the license fee, cannot be sustained by authority, nor by sound reason. The ordinance makes no provision for the collection thereof, either by the recovery of a judgment, and execution thereon, nor by warrant of distress. It gives Ho authority to levy upon, seize, or sell the property of the delinquent for its collection. In case of a failure or neglect to pay, and to procure the proper license, within ten days after notice from the mayor, of the amount of the license fee required, it provides only for the imposition of a fine not exceeding one hundred dollars, and of imprisonment not exceeding thirty days, or either, at the discretion of the mayor. Thus, not only without any effort to collect the license fee out of the property of the delinquent; but
There is nothing in the Act of Assembly authorizing the imposition of such a sentence, without an indictment and without a trial by jury. No authority was cited, no precedent has been found to warrant such action, or to sustain such a proceeding, under any similar grant of power. Except for contempt, a trial by jury should precede a sentence to imprisonment.
Holding then, that the ordinance is unwarranted by the statute, • its enforcement should be enjoined; the decree must be reversed, and the relief asked for in the bill be granted.
And now, to wit: May 17th 1873, this cause having come up by appeal from the decree of the Court of Common Pleas of Luzerne county, dissolving the injunction which it had previously granted, and dismissing the appellant’s bill, and having been argued by counsel at Philadelphia; after due consideration thereof, it was ordered, adjudged and decreed as follows, to wit: that the said decree of the Common Pleas be reversed and set aside; and that the said defendant be restrained from proceeding to enforce the payment of the sums of money claimed to have been assessed upon said plaintiffs respectively, as a special tax or license fee to enable them to prosecute their business in the city of Wilkes-barre; and it is further ordered, that the appellees pay the costs.