Commonwealth v. DeSarto
1916 Pa. Super. LEXIS 383
Pa. Super. Ct.
1916
Check Treatment

Opinion by

Head, J.,

The defendant was indicted for a violation in Lawrence County of the provisions of the Act of March 14, 1873, P. L. 297. Thе grand jury returned a true bill. When the case was called for trial the learned court below quashed the bill on the ground, as we understand it, that the exempting proviso in Section 2 of the statute was forbidden by clause оne, Section 2, of Article IV, of the Federal Constitution. He therefore held the entire act to be unсonstitutional and, as stated, quashed the bill of indictment. The Commonwealth appeals.

Manifestly we have nothing before us but the record. From that record it does not appear the defendant was a citizen of the United States or of any state thereof, nor is it certain that he had a legal residencе or domicile in any state. The clause of the Federal Constitution referred to declares: “The сitizens of each state shall be entitled to all privileges and immunities of citizens ‍​‌​‌‌​​‌‌‌​​​​‌‌​​‌​‌​​‌​‌‌​‌‌‌‌​​‌‌‌​​‌​‌​‌‌‌​​‍in the several states.” It hаs been frequently construed by the Supreme Court of the United States and by the courts of last resort of almost every state in the Union. The construction adopted by all of them may be conveniently stated in the language of the Supreme Court of the State of South Carolina in the case of Cummings v. Wingo, reported in 10 S. E. Reporter 107: “It will be *187observed that by the express terms of the Constitution, the purpose of the section under consideration is to secure to citizens of one state the same privileges and immunities as arе enjoyed by citizens of other states, and the Supreme Court of the United States has held that the privilegеs and immunities thus secured are those only which grow out of citizenship. Conner v. Elliott, 18 How. 591. As was said by Mr. Justice Miller, in delivering the ‍​‌​‌‌​​‌‌‌​​​​‌‌​​‌​‌​​‌​‌‌​‌‌‌‌​​‌‌‌​​‌​‌​‌‌‌​​‍opinion of the court in the Slaughter-House Cases, 16 Wall. 76, adopting the language of Mr. Justice Washington in Confield v. Coryell, 4 Wash. C. C. 371: ‘We feel no hesitation in confining these expressions to those privileges and immunities which arе in their nature fundamental,’ — rights belonging to the individual as a citizen of the state. Now, the provisions of our statute and rule ‍​‌​‌‌​​‌‌‌​​​​‌‌​​‌​‌​​‌​‌‌​‌‌‌‌​​‌‌‌​​‌​‌​‌‌‌​​‍of court make no discrimination against citizens of another state, as such......The provisions rеlate only to residence, and not to citizenship, which are entirely different things. As was said by Mr. Justice Grier in Parker v. Overman, 18 How. 137: ‘Citizenship and residence are not synonymous terms,’— or as was said by Mr. Justice Harlan in Robertson v. Cease, 97 U. S. 1057: ‘Citizenship and residence, as often declared by this court, are not synonymous terms’......Having thus shown that citizеnship and residence are regarded by the tribunal of last resort, in all questions involving the construction of the Constitution of the United States, as distinct and different things, it does not seem to us that the provisions of our statute аnd ‍​‌​‌‌​​‌‌‌​​​​‌‌​​‌​‌​​‌​‌‌​‌‌‌‌​​‌‌‌​​‌​‌​‌‌‌​​‍rule of court in respect to the requirement of security for costs in certain cases are in сonflict with the clause of the Constitution above quoted.” In the present state of the record it is difficult for us to see what right the defendant possesses secured to him by the Federal Constitution that is táken away from him by thе statute under which he was indicted.

The exempting clause in Section 2 of the act is as follows: “And providеd further, that this act shall not *188apply to persons wounded in the military service of the United States, who arе entitled, under existing laws, to a peddler’s license without charge; nor shall it apply to those who sell fish, оysters or meat, or those who sell produce off their farms, who are residents of the county.” The defendant claims no protection as one of the exempted class created by the proviso. Whether that ‍​‌​‌‌​​‌‌‌​​​​‌‌​​‌​‌​​‌​‌‌​‌‌‌‌​​‌‌‌​​‌​‌​‌‌‌​​‍proviso remains in the statute as a part of it or is excised from it as an attempt at lеgislation forbidden by the paramount law, in no way affects the liability of this defendant to prosecution unlеss it appear that the entire statute must be expunged from the statute books merely because оf the introduction of the proviso exempting certain persons from the operation of the act.

In Wood v. Philadelphia, 46 Pa. Superior Ct. 573, this court dealt with a statute containing an exempting proviso in some respects of the character Of the one in the act now under consideration, and we there attempted to show, by an еxamination of the cases, it was clearly the duty of the court, even while striking down the unwar. ranted proviso, to sustain the body of the statute. We can perceive no sound reason why the entire Act of 1873 should bе stricken down even if we were to conclude that the proviso to Section 2 could not be supported. When some citizen seeks the protection of the proviso and claims to be outside оf the operation of the statute because he is within the exempted class, it will be time enough to dеtermine whether or not the exempting proviso can be relied on to protect him. For the prеsent it seems to us to be entirely sufficient to say, in disposing of the question raised by this record, that even if the proviso were to be declared unconstitutional, this would not destroy the integrity of the statute and it would be the plain duty of the court, under all of the decisions, to uphold the statute without the proviso. In any event therefore the learned court below fell into error in quashing the bill.

Judgment reversed and a procedendo awarded.