City of Wilkes-Barre v. Garabed, 11 Pa. Super. 355

11 Pa. Super. 355 | Pa. Super. Ct. | 1899

Lead Opinion

Opinion by

Orlady, J.,

The defendant, an officer in the Salvation Army, was arrested and sentenced to pay a fine and costs for violating an ordinance of the city of Wilkes-Barre. An appeal was taken to the court of common pleas, where a case was agreed to, and after hearing, a judgment was entered for the plaintiff, and the record has been brought to this court for review.

The ordinance, for the violation of which the defendant was arrested and fined, is as follows:

“ It shall not be lawful for any person or persons to appear in any of the public streets or places in said city to play upon any hand organ, hurdy-gurdy, tambourine' or other musical instruments, or beat upon a drum, or blow a horn or trumpet, without a permit from the Mayor, and any such permit may be revoked by the Mayor, whenever he may deem it expedient. And whoever appears in any of the streets, alleys, or public places to play, beat, or blow upon either of such instruments without such permit, shall be hable to a fine of not less than two dollars nor more than twenty dollars. The high constable or any policeman shall have the right to demand for examination the permit of any person so playing, beating or blowing. And no hand organ shall be played more than one hour in any one day in any part of a public street between the same two cross streets, nor more than twenty minutes.in front of the same premises, under a penalty of two dollars for each offense.” Adopted March 22, 1878.

In the defendant’s appeal, he claims that this ordinance is unconstitutional and void for two reasons: first, because it is in violation of section 4 of article 1 of the state constitution which provides that “ all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; .... no human authority can, in any case whatever, control or interfere with the rights of conscience; and no preference shall ever be given by law to any religious establishments or modes of worship; ” and second, because it is in violation of that part of the fourteenth amendment of the constitution of the United States which provides that no state shall “ deprive any person of life, liberty, or propertj>-, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

As to the first claim — that the ordinance is void because it interferes with man’s natural and indefeasible right to worship God according to the dictates of his own conscience — it cannot be sustained. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice ? Reynolds v. United States, 98 U. S. (8 Otto), 145. Religious liberty does not include the right to introduce and carry out every scheme or purpose which persons see fit to claim as part of their religious system. While there is no legal authority to constrain belief, no one can lawfully stretch his own liberty of action so as to interfere with that of his neighbors, or violate peace and good order. The whole criminal law would be practically superseded if, under pretext of liberty of conscience, the commission of crime is made a religious dogma: In re Frazee, 63 Mich. 396. It is not necessary to cite any further authorities in support of so plain a proposition.

By an act of incorporation of May 4, 1871, P. L. 539, the then borough of Wilkes-Barre was made a city. The new charter became the source of power to enact and enforce the ordinance in question. By section 27 of the act, the power of the corporation “ shall be vested in the corporate officers designated in the charter, to wit: the mayor and the city council; they shall have power, First. To make such laws, ordinances, by-laws, rules and regulations not inconsistent with the laws of this commonwealth, as they shall deem necessary for the good government of said city. Second. To lay out .... streets .... as they may deem necessary. Fourth. To regulate the roads, streets, lanes .... pavements .... as they may deem advisable. Thirteenth. To prohibit and remove any obstructions in the highways, and any nuisance .... whether in the highways or in public or private grounds.”

The legislature of the state represents the public at large, and has full and paramount authority over all public ways. The object of incorporating a town or city is to invest the inhabitants of the locality with the government of all matters that are of special municipal concern. By the organization thus affected the state imparts to its creature, the municipality, the powers necessary to the performance of its functions, and to the protection of its citizens in their-persons and property: Sayre Borough v. Phillips, 148 Pa. 482; 1 Dillon on Mun. Corps, sec. 308. The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would stop the wheels of government: Locke’s Appeal, 72 Pa. 491.

The police power of the state is difficult of definition, but it has been held by the coui’ts to be the right to prescribe regulations for the good order, peace, health, protection, comfort, convenience and morals of the community which do not encroach on a like power vested in congress or state legislatures by the federal constitution, or do not violate the provisions of the organic law, and, it has been expressly held that the fourteenth amendment to the federal constitution was not designed to interfere with the exercise of that power by the state : Powell v. Penna., 127 U. S. 678; Powell v. Com., 114 Pa. 205.

Under these grants of authority our cities and towns corporate are in the continual exercise of a most useful jurisdiction.

Under the authority derived through this charter, the mayor and the city council have the same authority to enact proper ordinances as the legislature would have in regard to the same Subject-matter. The councils cannot be continuously in session, and the power represented by the charter is delegated to an officer, named to carry out tire will of the corporation. In this ordinance, the power of determining whether any person shall play, beat, or blow upon either of the instruments named, in any of the streets, alleys of public places, is left practically within the discretion of the mayor. The dispatch and control of daily affairs, the disposition of emergency or unusual cases, the preservation of the public peace, and the welfare of the people require that the judgment and action of this officer be applied to events and persons under circumstances which are not universal in their character. The mayor is a sworn official, and it is to be presumed that, under his oath of office, his duties as the representative of the city will be properly performed. That he may abuse or misuse his discretionary powers is not of itself a reason for believing that he will do so: Com. v. Muir, 1 Pa. Superior Ct. 578.

The discretion vested in the mayor is not arbitrary in the proper use of the term. He is made the agent of the law, and he is bound to exercise the discretion vested in him honestly, fairly, reasonably and without prejudice or partiality, for the just purpose of effectuating the intention of the statute: State v. Yopp, 97 N. C. 477; s. c. 2 Am. St. Rep. 305.

That the power here conferred is sufficiently comprehensive to cover every regulation necessary for the government of the city and protection of its citizens cannot be doubted. The only limitation of this power is that it must be exercised in a reasonable, lawful and constitutional manner. If these limitations are not transgressed, courts cannot interfere with the ordinances of the municipality, for to the mayor and council must be left a reasonable discretion, and for the proper and wholesome exercise thereof they are accountable, not to the courts, but to the people whom they represent: O’Maley v. Freeport, 96 Pa. 24. When the municipal legislature has authority to act, it must be governed, not by our, but by its own, discretion; and we will not be hasty in convicting them of being unreasonable in the exercise of it: Fisher v. Harrisburg, 2 Grant, 291. Nothing but a clear violation of the constitution — a clear usurpation of powpr prohibited — wall justify the judicial department in pronouncing an act of the legislative department unconstitutional and void: R. R. Co. v. Riblet, 66 Pa. 164.

The general assembly is a co-ordinate branch of the state government, and within the prescribed limits, so are the lawmaking municipal corporation. It is no more competent for the judiciary to interfere with the legislative acts of one than the other. When acting within their powers, or exercising a discretionary power, the courts are not warranted in interfering unless the power is abused to the oppression of the citizens, or for an equally good reason. The judgment of the mayor and the council as to what they “ deem necessary for the good government of said city ” is found in the ordinance.

From the case stated, it appears: “ That the organization represented by the defendant understands the divine command to require it to go into the streets and there preach the gospel; that frequent complaints have been made to the mayor against the Salvation Army; the drum having been found by experience, to be one of the most effectual of instruments to call together those to whom they wish to preach and to hold and keep their attention during the service, the use of the drum has become a regulation part of their service; that other officers of the organization had applied to the said mayor for a permit to beat the drum at their open air meetings in the streets; this the mayor refused to grant. Nevertheless they proceeded to hold their services. They were thereupon arrested and fined; that the defendant held a religious service in the street and beating drums thereat.”

The fact that the defendant represents a religious association has nothing to do with the case, nor is it pertinent to inquire into the purposes of the association, the propriety of its practices, or its .judgment as to the use of drums as a regulation part of their service. It is only when political, religious, social, or other demonstrations create public disturbance, or operate as nuisances, or create or manifestly threaten some public or private mischief, that the law interferes, and not because of the sentiments or purposes of the movement, if not otherwise unlawful. The state has authority to make regulations as to the timé, mode, and circumstances under which parties shall assert, enjoy, or exercise their rights without coming in conflict with any of those constitutional principles which are established for the protection of private rights and private property: Cooley’s Const. Lim. 596; Com. v. Davis, 140 Mass. 485; State v. Freemen, 38 N. H. 426.

The public streets from side to side and from end to end belong to the public, which is entitled not only to a free passage along the highway, but to a free passage along any part of it not in the actual use of some other traveler. They are designed and maintained for the use of the public in passing and repassing: Barker v. Com., 19 Pa. 412; Norristown v. Moyer, 67 Pa. 355.

The ordinance applies to all of the public streets or places in the city; it is not directed against the defendant or the organization he represents, or any other person or body of men. Its manifest purpose is to regulate the use on the streets of the instruments named therein, so as to prevent what the defendant endeavors to effect in seeking the permit, — the calling together and holding a crowd, — and it is asserted to thwart that particular evil, and for no other purpose. It is universally known that the effect of street meetings, which are frequently held in the same locality, in addition to obstructing the highway, is to induce loitering, to provoke strife and collisions, and to cause a common nuisance, and they are a serious grievance to the residents of the neighborhood. The most desirable places for such meetings are the thronged thoroughfares in the populous parts of the city, where the injury to the people at large is the greatest, and the experience of municipalities is in exact accord with that of the defendant and his associates, viz: “ The drum is an effective instrument to call together and hold a crowd.”

Ample reason for the ordinance is shown, the fine imposed is a merely nominal one, and no anticipated danger to any person is threatened or even indicated.

It has been held by some courts to be an unreasonable and invalid power to authorize the mayor or the superintendent of police, in his discretion, to prohibit street parades and processions, but an examination of the cases relied on by the appellant will show that in each one there are preferences and discriminations, or unreasonable conditions, or penalties. In State v. Dering, 84 Wis. 585; s. c. 19 L. R. A. 859, the ordinance did not apply to fire companies, the state militia, or to political parties having a state organization. In Anderson v. Wellington, 40 Kan. 173; s. c. 2 L. R. A. 110, it did not apply to funerals, fire companies, regularly organized companies of state militia, or United States troops. In Chicago v. Trotter, 136 Ill. 430, it prohibited all parades or processions unless a permit therefor shall first be obtained from the police department. The court held that as parades and processions upon the city streets are not necessarily so productive of danger and disorder as to render them per se the creators of public disturbances, and that they are not necessarily nuisances, hence there is no authority in a city to suppress such demonstrations under all circumstances. In In re Frazee, 63 Mich. 396, it exempted funeral and military processions. Elaborate notes will be found in Richmond v. Dudley, 129 Ind. 112, s. c. 13 L. R. A. 587, St. Louis v. Russel, 116 Mo. 248; 20 L. R. A. (Mo.) 721, and notes, and Barbier v. Connelly, 113 U. S. 27.

The case of Yick Wo v. Hopkins, 118 U. S. 356, on which the appellant confidently rests his case, is not a controlling authority. In that case it is said: “ The fact of discrimination is admitted. No reason for it is shown, and the conclusion cannot be resisted, that no reason for it exists except hostility to the race and nationality to which the petitioners belong, and which in the eye of the law is not justified. The discrimination is therefore illegal and the public administration which enforces it is a denial of the equal protection of the laws and a violation of the fourteenth amendment of the constitution,” and on account of this the court said: “ Though the law be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.” While the opinion furnishes argument against the validity of the ordinances on the ground that they lodged an unrestrained and arbitrary power with a single individual, we think that the dominant reason for reversing the judgment was that the power had been exercised in a manifestly arbitrary and unreasonable manner, which reason is entirely lacking in the case before us. The San Francisco ordinances prescribed the kind of buildings in which laundries might be located, provided for the inspection of said buildings, and prohibited the kindling or maintaining of open fire in houses, the immediate effect of which was to deprive the petitioners of their property and property rights without due process of law. There is a wide distinction between the arbitrary refusal to issue a permit to conduct a lawful and established business, which is harmless in itself and useful to the community, and the refusal to grant a permit to use instruments on the street for the sole purpose of calling together and of holding therein a crowd of people.

As was said in Barker v. Com., 19 Pa. 412: “ If the purpose of the meeting be lawful, a suitable place can be obtained for it without obstructing the public in their undoubted right of passing along their own highways. The freedom of the press is as well deserving protection as the liberty of speech; but, no one in his wildest enthusiasm in favor of the former has claimed the right to establish printing presses in the streets; one of Hoe’s printing presses would certainly be as effectual in collecting a crowd as the harangues described in the indictment. The nuisance in the one case would be quite respectable in its nature and objects compared with the demoralizing character of the other. Both are prohibited by law as infractions of the public right of passage.”

It is not unreasonable, impartial or oppressive because the power is to be exercised by the mayor, as he may deem expedient, which is equivalent to saying in his discretion, and which implies that it must be done with a sound discretion and according to law. A hard and fast rule or a clearly defined one cannot be laid down for the granting of such permits. The discretion to be exercised is one of wide latitude, depending on season, route, purpose hr view, time, and many other conditions ; and it imports the exercise of judgment, wisdom and skill as opposed to folly, passion and prejudice. The power to act must be lodged somewhere, and the city has seen proper to place it in the hands of its chief executive.

The case stated shows that military, political, religious, social organizations, fire companies and private enterprises have been permitted, for the purpose of display and advertisement, to have parades and occupy the streets with bands composed of players on drums, etc. These were each and all moving bodies of persons along the streets. The offense of the defendant was “ having held a religious service in the streets and beating drums thereat,” which was .a stationary and fixed gathering of persons — remaining together — on the thoroughfares.

The failure to enforce an ordinance furnishes no reason for not enforcing it under proper conditions. The ordinance has been continuously in force since its enactment; it has been acquiesced in through twenty years without objection by the people, and only after “ frequent complaints have been made to the mayor” and the ordinance defied and violated is it invoked against the defendant. No fee is required to be paid. It is not even suggested that the mayor has exercised his power in an injurious or malicious manner, or that there has been any unjust or unfair discrimination, partiality or prejudice. The opposite of this is frankly stated by the appellant, viz: “ the integrity of the mayor has prevented its being made the instrument of unjust extortion generally, for we believe him superior to such practice.”

Without aid from the ordinance the mayor as the chief officer of the city would have the undoubted right, as a conservator of the peace, to disperse a crowd on a street, assembled and remaining for the purpose of holding religious worship, or for any other, or to prohibit on his own view the assembling of such a meeting, as it would necessarily interfere with the free use of the streets. To deny this power would be to turn the streets over to the will and pleasure of a mob. The purpose of the meeting does not furnish the right to hold it. The evil to be avoided is the interference with the rights of the public. The ordinance is a discretionary preventative to avoid what would reasonably be expected to happen if the use of such instruments was not restrained.

If a person doing business upon a public street carries on his business in such a way as to obstruct the street either by placing actual physical obstructions thereon, or by habitually carrying on his business in his store in such a way as to collect crowds upon the walks or streets in front of it, so as to interfere with the public travel, he is chargeable for a nuisance: Wood on Nuisances, sec, 264. The fact that the defendants’ business was lawful does not justify them in annoying the public in transacting it; it gives them no right to occupy the public highway so as to impede the free passage of it by the citizens generally: Rex v. Jones, 3 Camp. 230; People v. Cunningham, 1 Denio, 524; 43 Am. Dec. 709. A tradesman may expose his wares for sale on his own property, but he must do it in such a way as not, by so doing, to cause obstruction in the public street: Rex v. Carlile, 6 Car. & P. 636. It is not lawful for an auctioneer to place goods intended for sale in the public streets : Com. v. Passmore, 1 S. & R. 217; nor for a constable to conduct a sale under an execution in the public street of a city, thereby obstructing the passage: Com. v. Milliman, 13 S. & R. 403; nor for any one to erect in the street a figure calculated to collect and excite a crowd: Com. v. Haines, 4 Clark, 17; nor to collect a crowd by loud and indecent language: Barker v. Com., 19 Pa. 412; nor to erect and maintain a liberty pole in the open highway: Norristown v. Moyer, 67 Pa. 355. Loungers who occupy the public highway are obstructions of the public right of way, and nuisances: Com. v. Challis, 8 Pa. Superior Ct. 130; Braddy v. Milledgeville, 74 Ga. 516; s. c. 58 Am. Rep. 443. There are cases in conflict with the views herein given but the cases of Com. v. Davis, 140 Mass. 485, Com. v. Plaisted, 148 Mass. 375; s. c. 2 L. R. A. 142, and Com. v. Abrahams, 156 Mass. 57, furnish convincing reasons for holding the ordinance to be valid.

The judgment is affirmed.

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Dissenting Opinion

Berber, J.,

dissenting:

Does the ordinance conflict with the provision of the fourteenth amendment of the constitution of the United States which deprives the states of the power to “ deny to any person within its jurisdiction the equal protection of the laws ? ” Upon the authority of the case of Yick Wo v. Hopkins, 118 U. S. 356, I am constrained to say that in my opinion it does. I cannot agree with the learned judge below that the doctrine of this case is that a municipal ordinance which made arbitrary and unjust discriminations founded on differences of race is inconsistent with this fourteenth amendment. The case goes much further than this. The ordinances under consideration in that case provided that no one should establish a laundry in the city of San Francisco “without having first obtained the consent of the board of supervisors, except the same be located in a building constructed either of brick or stone.” The Supreme Court of California, from whose judgment the appeal was taken, had considered that the ordinances vested in the board of supervisors the usual discretion of granting or withholding assent to the use of wooden buildings as laundries, but the Supreme Court of the United States refused to adopt that view of them. They were held to confer, not a discretion to be exercised as to whether certain rules and conditions prescribed for and operating upon all alike had been complied with, but a simple and naked arbitrary power to be exercised upon the mere whim or caprice of the board guided and controlled by no limitations or restraints. The greater part of the opinion is devoted to showing how such an unrestricted and unguided power is contrary to the principles upon which our institutions are founded and the nature and theory of our government. It was said that it is our boast that we live under a government of law and not of men, and that the phrase granting “.the equal protection of the laws” was equivalent to a grant of the protection of equal laws. The existence of such an arbitrary power was said to be intolerable in such & country as ours where there was no room for the play of passion, or whim, or caprice. It is true the facts of this case showed that the ordinances were applied in a way that discriminated against persons of a particular race which led the court to say: “ In the present ease we are not obliged to reason from the probable to the actual and pass upon the validity of the ordinances complained of, as tried merely by the opportunities which their terms afford, of unequal and unjust discrimination in their administration. For the cases present the ordinances in actual operation, and the facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion that whatever may have been the intent of the ordinances as adopted, they are applied by the public authorities charged with their administration, and thus representing the state itself, with a mind so unequal and oppressive as to amount to a practical denial by the state of that equal protection of .the laws which is secured to all.” We cannot, however, take this to mean that the court would have sustained the ordinances had not this partial and unjust operation of them been shown, because if we did, we would ignore the greater part of the opinion which was devoted to showing the invalidity of the ordinances on the ground that they lodged an unrestrained and arbitrary power with a single individual and we would have the court deciding that the validity of an ordinance depends upon the impartiality of its execution. The ease of Barbier v. Connolly, 113 U. S. 27, upon which the court below relied, was distinguished in the Yick Wo case and the difference is plain. In the Barbier case the 4th section of the ordinance was the only one under consideration, and so far as appears from the report of the case this section did not contain the offensive feature of a permit being required from a particular person or board. It was simply a prohibition of the carrying on of the laundry business within certain limits in the city of San Francisco from 10 o’clock at night until 6 o’clock of the morning of the following day. Besides, an examination of the other sections of the ordinances, as set forth in the opinion, shows, taken altogether, they required the parties from whom the permits were to be obtained to go upon the premises upon which it was proposed to conduct the laundry and see that certain requirements of the ordinances as to the condition of the property and the precautions to be taken to prevent fires had been complied with, and if found satisfactory in this respect, the license was to be issued. This was a case where the discretion of those who were to give the permit was limited and controlled by the extent to which certain well defined and clearly described conditions had been complied with.

It is an established doctrine of the courts that every corporation has the implied power to pass by-laws, but such by-laws must be reasonable, consistent with the general principles of the common law, especially with those relating to the liberty of the subject, with the general law and policy of the state, and must not be oppressive, but impartial, fair and general: 1 Dillon on Mun. Corp. (6th ed.) secs. 319-322. It is true, if the legislature clearly gives a municipal corporation the power to pass by-laws of a specified and defined character, and those passed in pursuance of such a power are not in conflict with the constitution, the courts are not at liberty to declare them invalid because unreasonable, as they might do if the same bylaws were passed under the implied power of the corporation or under a general grant of power: 1 Dillon on Mun. Corp. (6th ed.) sec. 328. The powers given by the charter of the city of Wilkes-Barre are not of that class. They are found in the first clause of section 27 of the Act of May 4, 1871, P. L. 539, where the city council are given the power to pass such “ by-laws .... not inconsistent with the laws of the commonwealth, as they shall deem necessary for the good government of said city,” and in the thirteenth clause of the same section-where they are given the power “ to prohibit and remove .... any nuisance .... whether' in the highways or in public grounds.” The powers contained in these grants cannot be held to save ordinances passed in pursuance of them from the scrutiny of the courts upon the ground that they are passed in pursuance of a power to pass ordinances of a specified and defined character. They are too general and undefined to put ordinances passed in pursuance of them in that class. Any ordinances resting for their authority upon such powers as are granted to the city of Wilkes-Barre, enumerated above, are still subject to a decision by the courts as to their reasonableness, lawfulness and constitutionality: O’Maley v. Freeport, 96 Pa. 24.

It is equally well established that the question whether an ordinance is reasonable and consistent with the law is for the court and not for the jury. Of course courts are bound, in determining this question, to consider all the circumstances of the particular municipal corporation whose ordinances are under review, the objects sought to be obtained and the necessity which exists for the ordinances : Dillon on Mun. Corp. (6th ed.) sec. 327. The courts of our own state have frequently exercised this power. Two notable instances of it are found in Commissioners v. Gas Co., 12 Pa. 318, and in Kneedler v. Norristown, 100 Pa. 368.

It appears clear to me that the ordinance in question in this case offends not only against the fourteenth amendment to the constitution of the United States, but also against the rule that ordinances must be fair, impartial, general, not oppressive, and consistent with the laws or policy of the state. It is evident that it does not intend to prohibit all playing on musical instruments or beating upon drums in the public streets, for it provides for a permit to do it, which clearly shows that the city council did not intend to declare against it, under any and all circumstances, as a nuisance. Nor does it prescribe regulations for the use of musical instruments or drums upon the streets with which all desiring to use them can comply. It divides all persons who desire to make, music upon the streets into two classes by an arbitrary line, upon one side of which are those who are permitted to play upon instruments or beat upon drums by the mere will and pleasure of the mayor, and upon the other side are those who are not permitted, or have been permitted and then refused, by the mere will and pleasure of the mayor. Both classes are alike in this, that they enjoy or are denied a. permissible line of conduct at the mere will of the mayor, and ■this without any regard whatever as to the character of the individuals or the circumstances under which they desire to do this allowable act. The ordinance is not like the license laws of the state which lodge a discretion with a public officer or with the court to grant or withhold license to sell liquors, because these laws prescribe certain qualifications on the part of the applicant and require certain and well defined conditions to be performed and a public necessity to exist, all of which must be taken into consideration when the judicial discretion is to be exercised. Even when the discretion is exercised under these conditions the laws are careful to provide an additional security against an abuse of discretion by giving an appeal.

The legislature of. this state shows consistent care to prevent an arbitrary and uncontrolled exercise of discretion when licenses or permits are to be issued. An examination of the different acts of assembly regulating the issuance of licenses or permits will show a marked difference in the manner of directing them to be issued between those acts in which such licenses or permits are required merely for purposes of revenue, and those in which they are required by laws founded upon the police power, passed for the purpose of regulating certain kinds of business with a view of conserving the good order or the good morals of society. Those required for purposes of revenue only are usually directed to be issued upon the mere payment of the fee. No room is left for a discretion to be exercised by the officer required to issue them. Those required because it is thought well, for the sake of the good order or good morals of the community, to regulate or restrain the business to be licensed or permitted, are usually directed to be issued only after it has been ascertained judicially that certain clearly defined conditions have been performed and prescribed limitations preserved, which conditions and limitations affect all alike similarly situated. The studiously maintained difference between these two classes of acts was clearly pointed out by Mr. Justice Mitchell, when sitting as a common pleas judge in Philadelphia county, in Com. v. Stokley, 12 Phila. 316, and in In re Stedman’s Appeal, 14 Phila. 376. In considering what was the reason that the act under consideration, which was one regulating the issuance of licenses to theatres, provided for an appeal from the exercise of a discretion therein allowed, he said in the latter case: “ Why, then it may be asked, was an appeal given to the court? It appears to me that the only reason was the invincible repugnance, under our institutions and habits of freedom, to the lodging of an absolute power, without supervision, in any one man, however competent as to himself or responsible as to his office.” After showing how differently mayors, inspired by different purposes, might issue or refuse licenses he further said: “ To guard against this possibility, and to secure the exercise of a fair and legal discretion, mindful alike of the public interests and of private rights, to do everything that is lawful in a lawful manner, the legislature, when by the Act of May 22, 1879, P. L. 73, it gave the mayor a discretion to issue or revoke a license, provided also that Ids discretion should not be arbitrary and unquestionable, but subject to appeal.” These observations of his as to the care which the policy of our laws requires to be taken to hedge about, control and restrain the exercise of a discretion are abundantly sustained by the laws themselves.

The conclusion which I have reached in this case is in my opinion sustained by many authorities in addition to those already cited. City ordinances, different in no substantial respect from the one under consideration, have been declared void by the highest courts of several of the states: Anderson v. Wellington, 40 Kan. 173; 2 L. R. A. 110; Richmond v. Dudley, 129 Ind. 112; 13 L. R. A. 587; State v. Dering, 84 Wis. 585; 19 L. R. A. 859, where will be found a voluminous collection of the cases on this subject; Chicago v. Trotter, 136 Ill. 430; St. Louis v. Russell, 116 Mo. 248; 20 L. R. A. 721; Baltimore v. Radecke, 49 Md. 217; In re Frazee, 63 Mich. 396. It must be conceded that the Massachusetts and North Carolina cases are in conflict with o.ur conclusion. My examination and consideration of these cases has satisfied me that the preponderance of the authorities of this country and the general policy of our own state laws sustain the conclusion at which I have arrived. Nor do I think that the case of Homer v. Com., 106 Pa. 221, conflicts with this conclusion. In that case section 4 of the Act of Assembly of August 26, 1721, 1 Sm. L. 129, requiring a special license from the governor to sell fireworks in Philadelphia was before the court. A verdict was rendered against the defendant by agreement for the amount of the penalty subject to two points reserved: (1) Whether section 4 of the act of assembly of August 26, 1721, is still in force. (2) Whether said section has not become obsolete by reason of subsequent legislation. These were the only two points argued by counsel so far as their argument reported reveals, and it clearly appears from the opinion of the court that the only decision made was that the act had not become obsolete by nonuser, nor had it been repealed by subsequent legislation. In no event can it be considered a decision sustaining the validity of the statute after a consideration of an objection to it on the ground of the presence of the clause requiring a special license from the governor. In my opinion that objection to this act has not been adjudicated. The situation, as left by that decision, is not substantially different from that revealed by Philadelphia v. Ridge Ave. Railway Co., 102 Pa. 190, and Ridge Ave. Pass. Ry. Co. v. Philadelphia, 124 Pa. 219. In the first of these cases the city of Philadelphia recovered a verdict against the Ridge Avenue Passenger Railway Company which was sustained upon the assumed validity of the Act of March 8, 1872, P. L. 264. In the second case this act of March 8, 1872, was declared unconstitutional in a suit by the city of Philadelphia, which could not have been sustained except upon the theory of the unconstitutionality of the act of 1872. The same plaintiff in the first suit sustained a verdict in its favor upon the assumed constitutionality of an act, and in the second suit sustained a verdict in its favor because the same act, which had been assumed by all parties, including the court, to be constitutional, was unconstitutional. The Supreme Court was not held to have decided upon the constitutionality of the act in the first suit for the evident reason that the question had not been raised and passed upon in that suit.

I would reverse the judgment in this case and direct the prisoner to be discharged.

William; W. Porter, J., joins in this dissent.