Kucker v. Sunlight Oil & Gasoline Co.
79 A. 747
Pa.
1911
Check Treatment

Opinion by

Mr. Justice Moschzisker,

Thе plaintiff filed a bill in equity praying that the defendant be restrained from selling or offering for sale any oils not duly inspected and branded in the county of Philadelphia, and from placing any brands on packages in that county certifying that the contents had been inspected, or that the oils were of a certain fire test, unless the plaintiff had made an inspection of the same; аnd further praying that the defendant be decreed to render an account for all oils sold by it in said county during the *532period of the plaintiff’s incumbency of office, and to pay the fees which would have been chargeable by the plaintiff against the defendant for testing, inspecting and branding such oils. The bill avers that the plaintiff was appointed inspector of oils by the mayor of the city of Philadelphia, on October 21, 1907, under the provisions of the Act of May 15, 1874, P. L. 189; that the defendant is a corporation engaged in the said city, “in keeping in store for sale and consumрtion, and in selling coal oil ... . and other manufactures of refined oil from crude petroleum, . . . that it sells such oils without inspection and branding as required by the act of assembly; and that the defendant has refused to permit a test of the oils sold by it or to pay the plaintiff his fees.

For the purposes of the present appeal it is sufficient to say that the answer admits the appointment of the plaintiff as oil inspector, but avers that the act of May 15, 1874, supra, is unconstitutional, and therefore not binding upon the defendant; it denies that the defendant ‍‌​‌​​‌​​​​‌‌‌​‌‌‌‌‌​‌‌​​‌​‌​‌‌​‌​‌​‌​‌​‌​‌‌​​‌​‌‍ever prevented or endeavored to prevent the plaintiff from making inspections, but insists that no such right exists owing to the unconstitutionality of the act; and it avers that the fees have not been paid because of this invalidity of the act under which they are claimed.

The act in question deals with the inspection of coal and petroleum oils. Section 1 forbids the sale “within the limits of the Commonwealth оf Pennsylvania” of any such oils “the fire test of which shall be less than 110 degrees Fahrenheit;” sec. 2 provides that the test “shall be determined by inspectors appointed under the provisions of this Aсt,” and states precisely how such tests shall be made; sec. 3 provides for the appointment of inspectors, confining them to counties “wherein said .... oils . . . . are manufactured;” sec. 4 рrovides for the term of office of the inspectors and for the appointment of deputies; that they shall be paid out of fees, and fixes such fees; and it further defines the powers and duties of the inspectors and gives them the right to make inspections in *533counties where such oils are not manufactured, and the privilege to make re-inspections; sec. 5 provides fоr violations of the act and punishments; sec. 6, for seizures in certain instances; sec. 7 inflicts penalties on inspectors violating the act; sec. 8 provides how packages shall bе branded; and sec. 9 exempts oils manufactured for export.

The pleadings below and the assignments of error here, raise the issue of the constitutionality of this act; and no question of jurisdiсtion was raised or mooted in either court. The trial judge disposed of all the constitutional points in the case by saying: “If this were a recent piece of legislation there might be found .... ‍‌​‌​​‌​​​​‌‌‌​‌‌‌‌‌​‌‌​​‌​‌​‌‌​‌​‌​‌​‌​‌​‌‌​​‌​‌‍а sufficient basis for holding the act invalid. However, it is now more than thirty-five years since the statute was passed, and it has been acted upon without attack, and has been under construction by thе courts at various times during that period. I am of the opinion that, applying the law found in Sugar Notch Borough, 192 Pa. 349, it is my duty to consider any radical defects such as the defendant relies on, if they exist, to have been cured, or, at least, to regard the question raised as too belated and stale to entitle it to consideration at the present time.” It is apparent that the leаrned court below misconceived the Sugar Notch Borough case. While a court should hesitate to declare a statute unconstitutional until clearly satisfied of its invalidity, and where it has bеen on the statute books for many years the hesitation should be all the greater, yet, if such an act is plainly in conflict with the organic law of the state, old age cannot give it life, and when the issue of its constitutionality is properly raised, it must be declared void. We have never ruled to the contrary. In Com. v. Hazen, 207 Pa. 52, an act was declared unconstitutional after it had been on the books for thirty-two years, and in Orkney Street, 194 Pa. 425, after thirty-three years; and many other like instances could be cited. Although the fact that the act of 1874 has been before ‍‌​‌​​‌​​​​‌‌‌​‌‌‌‌‌​‌‌​​‌​‌​‌‌​‌​‌​‌​‌​‌​‌‌​​‌​‌‍this court on severаl occasions must be given serious consideration in questioning its constitutionality, yet, since that *534issue was not raised in any of those cases, it cannot be considered as adjudicated. Therefore, so far as our decisions were concerned, the question was an open one for the court below.

Section 27 of art. Ill of the constitution provides: “No State officе shall be continued or created for the inspection or measuring of any merchandise, manufacture or commodity, but any County or municipality may appoint such officers when authorized by law.” Inspection is, “ Something which can be accomplished by . . . ., weighing or measuring the thing to be inspected, or applying to it at once some crucial test: ” People v. Compаgnie Gen-érale Transatlantique, 107 U. S. 59. When we look at sec. 2 of the act under consideration there can be no question but that it provides for an inspection within the meaning of the constitutiоn; and sec. 3 provides in terms, “The said inspector shall be appointed by the courts of common pleas, one in each county of the Commonwealth wherein said .... oils .... are manufactured; Provided, That ‍‌​‌​​‌​​​​‌‌‌​‌‌‌‌‌​‌‌​​‌​‌​‌‌​‌​‌​‌​‌​‌​‌‌​​‌​‌‍in any county where there shall be more than one court of common pleas, the said appointments shall be made by court number one in said counties, and in any сounty wherein is situate a city of more than three hundred thousand inhabitants, in such case in lieu of court number one, the appointment of inspector shall be made •by the Mayor of said city.”

Should we view the act in the light of an attempt to provide for county inspections as authorized in the constitution, then material parts of it infringe the prohibition against local' and speсial laws contained in sec. 7, art. Ill, of that instrument. After, in the first section, defining a crucial test, and making the statute apply not only to the counties wherein such oils are manufactured, but to all places where they are “sold or offered for sale” throughout the Commonwealth, and in the second section expressly providing that such test “shall be determined by inspectors apрointed under the provisions of this Act,” the third section confines the appointment of the inspectors *535to a restricted class of counties, viz., those “wherein said oils .... are .... manufactured;” then, in dealing with the method of making the appointments, it attempts to differentiate such counties. The effect of this is to localize the legislation, for the proposed classificаtion is inelastic; it does not depend upon population but upon purely artificial conditions to bring other counties within its limits; and neither it nor the differentiation, or sub-classification, is founded upon any real distinctions in the subjects classified. More than this, since the benefits of the legislation were intended for every county in the state, there is no apparent reason to supрort the classification. Again, if we regard the persons who are to make the inspection as county officers, the application of the act to the facts in this case contravenes sec. 5 of art. XIY of the constitution, which provides that in counties containing over 150,000 inhabitants such officers shall be paid by salary and not by fees. However, it is not necessary tо discuss these points for we are of opinion that the intention was not to authorize inspection by counties, but to provide a state inspection by state officers.

If the constitution рermitted such inspection, the inspectors being agents of the state, we might consider the method of their ‍‌​‌​​‌​​​​‌‌‌​‌‌‌‌‌​‌‌​​‌​‌​‌‌​‌​‌​‌​‌​‌​‌‌​​‌​‌‍appointment a matter of detail, which, though not general and uniform, would not avoid the act: Knisely v. Cotterel, 196 Pa. 614. But the trouble is that the statute is right in the teeth of the prohibition against state inspection of merchandise, manufactures or commodities. It may be that this provision of the constitution has outlived its usefulness and that it is contrary to the tendency of the times, but the question of its abandonment is for the legislature and the people, and not for us. We must construe the lаw as we find it, and the constitution says in plain words that there shall be no such state inspection as provided for in the act which the plaintiff depends upon to support the relief granted by the court below. This being so, we have no choice but to reverse the decree and dissolve the injunction.

*536The act in question having been upon the statute books since 1874, its constitutionality nеver having been challenged before, and the defendant having acquiesced in its validity for many years, we deem it just that the costs should be divided.

The first assignment of error is sustained, the final decree is reversed, and the injunction thereby granted is dissolved. The appellant and the appellee to divide the costs.