Homer & Son v. Commonwealth , 1884 Pa. LEXIS 179 ( 1884 )

Mr. Justice Trunkey

delivered the opinion of the court,

Upon the facts admitted and points reserved the real question is, whether or not section 4 of the Act of August 26, 1721, entitled “An Act for preventing accidents that may happen by fire,” has been repealed. The purpose of the Act is stated thus: — “Whereas much mischief may happen by shooting of guns, throwing, casting and firing of squibs, serpents, rockets, aud other fireworks, within the city of Philadelphia, if not speedily prevented: Be it therefore enacted, &o.,” 1 Cary & B. Laws, 157. By the Act of February 9, 1751, provisions similar to those in the Act of 1721, were enacted for all towns and boroughs, not provided for in prior statutes, “To the end the provisions already made by our laws for preventing accidents which may happen by fire in the city of Philadelphia and several other boroughs and towns within this province, may be made more generally useful, and to prevent, as much as in us lies, the growing sins of idleness, drunkenness, and other debaucheries, too frequent among us, Be it enacted, &e.,” Id., 311.

These statutes for police regulations have not been repealed or supplied by legislation. It was long ago settled that an Act of Parliament cannot be repealed by non user. That this is also the rule in this state accords with reason and the absence of authority to the contrary. The settled rule is, that a statute can be repealed only by express provision of a subsequent law, or by necessary implication. To repeal by implication there must be such a positive repugnancy between the new law and the old, that they cannot stand together,- or be consistently reconciled. But the fact of non user is not in the case — the point is whether the Act has become obsolete or repealed by subsequent enactments.

Slavery and punishment by whipping having been abolished by law, the clause of the Act providing that when- the offender is a slave and refuses to pay the forfeiture, he shall be publicly whipped, is necessarily repealed. The Act of March 23,1865, P. L., 744, makes it unlawful for any person to manufacture any pyrotechnics, fireworks, cartridges or ammunition in the built up part of the city of Philadelphia. Therefore, the Act of 1721 is so far repealed that the license of the governor will not authorize the manufacture of squibs, rockets or other fireworks in the built up parts of the city. Only so far as the later statutes are positively repugnant to the prior do they operate as a repeal.

It is urged that section 44 of the Act of February 2, 1854, P. L., 44, authorizes the city councils to declare what laws have become obsolete by said Act of 1854, and that the councils have declared that the Act of 1721 is obsolete. Whether or not the city councils may annul a statute is not involved in this action, for no ordinance has been shown whereby they attempted to exercise such power.

And it is also urged that the Act of 1721 is superseded by the statutes relating to the raising of revenue by imposing duties or taxes on manufacturers and venders of merchandise. These laws provide for appraisement, license, and collection of the tax. They make no business or sale lawful which was before unlawful — they authorize no manufacture or sale which is prohibited by any other statute. They do not repeal or supersede any special or local statute regulating or prohibiting the sale of spiritous liquors, gunpowder, fireworks, petroleum, oleomargarine, or otlier articles of merchandise. Whether the special or local Act which regulates or prohibits the sale of any article of merchandise is prior or subsequent to the general tax law is immaterial, its operation is unaffected by the general statutes for raising revenue.

Judgment affirmed.

Chief Justice Mercur dissented.