Respublica v. Duquet , 2 Yeates 493 ( 1799 )

Shippen, C. J.

pronounced the opinion of the court. The questions in this case are principally two : 1st, Whether the corporation of the city of Philadelphia have passed such an ordinance under the powers vested in them by act of assembly, as by law they might do, both with respect to the mode of punishment, and the court in which the offender is to be tried. And 2d, If they have passed a valid ordinance occording to the act, is that act a constitutional one ?

The material objection to the ordinance is, that they have directed a prosecution by indictment, whereas it is contended, that a corporation has only power to inflict pecuniary penalties to be levied by distress, or recovered by action of debt. This is undoubtedly true, with regard to ordinances founded on no authority but their own; but in this case they are vested with extraordinary powers by the acknowledged legislature of the state. By the act of assembly of 11th March 1789, § 20, the corporation have power to make bye-laws, &c. for the well governing and welfare of the city, and to try and determine certain specified offences therein named, as larcenies, forgeries, &c. and likewise all offences which shall be committed within the said city, against the laws, ordinances, regulations or constitutions, that shall be made, ordained or established in pursuance of that act, and to punish the offenders as by the said laws or ordinances shall be prescribed. 2dly, By the act of 18th April 1795, the legislature enacts, that the mayor, alderman and common council shall be empowered to pass ordinance to prevent any person or persons, from erecting or causing to be erected, any wooden mansion house, shop, ware house, store, carriage house, or stable, within such part of the city of Philadelpia, as lies to the eastward of Tenth street from the river Delaware, “as they may judge proper.” So that the state legislature have exercised their judgment upon tho subject matter, and directed, by law, that every person should be prevented from erecting wooden buildings within certain populous parts of the city ; and the mode of preventing such an evil is left to the may- or, aldermen and common council, by very general words, “ as they may judge proper.

This act, connected with tho former act, giving tho Mayor’s Court power to try all offences against the laws and ordinances which the said corporation shall make in pursuance of the former act, and to punish the offences as by the said laws and ordinances shall be prescribed, appears to us decisive, that they may punish offenders against the ordinance, by indictment in the Mayor’s Court.

It is not sufficient to say, that the corporation could not of their own authority pass ordinances to punish by indictment or imprisonment, because they are expressly authorized to try and punish offenders against their ordinances in the same court and in the same manner as larcenies, forgeries, and other such offences as are directed to be punished. And although corporations cannot of themselves make ordinances to punish offenders by imprisonment, yet the law cases are express, that if such a power is founded on the custom, they may; and surely an act of the legislature is as effectual as any custom can be.

As to the constitutionality of these laws, a breach of the constitution by tho legislature, and the clashing of the law with tho constitution, must be evident indeed, before we should think ourselves at liberty to declare a law void and a nullity on that account yet if a violation of the constitution should in any case be made by an act of the legislature, and that violation should unequivocally appear to us, we should think it our duty not to shrink from the task of saying such law is void. We however see no such violation in the present case, and therefore give judgment for the commonwealth.