Borough of Millerstown v. Bell

16 A. 612, 123 Pa. 151, 1889 Pa. LEXIS 639

• Court: Supreme Court of Pennsylvania
• Decided: January 7, 1889
• Docket: No. 173
• Status: Published

Opinion

Opinion,

Me. Justice Paxson :

This case involves the validity of an ordinance of the borough of Millerstown, requiring the owners or drivers of any team, stage, hack, carriage, or other vehicle (except those in actual use in carrying the United States mail or those used for private purposes merely) for which they receive any compensation whatever, to take out an annual license, and to pay therefor the sum of $2.50 for one-horse vehicles, and $5 for vehicles with two or more horses. The ordinance applies alike to all such owners within the borough, and to those outside thereof, whose vehicles are used to and from the said borough.

The ordinance in question is not authorized by the express language of the borough law of 1851, nor by any other act of assembly. It was urged, however, that it is authorized by the second section of the act of 1851, which provides that such corporations shall have power “ To make such laws, ordinances, by-laws, and regulations not inconsistent with the laws of this commonwealth, as they shall deem necessary for the good order and government of the borough.” This section is followed by twenty-five other sections specifying minutely the subjects which the borough may regulate by ordinance. If the ordinance in question related to any one of these subjects there would be no question about its validity, provided the ordinance itself is reasonable. And we are of the opinion that the general powers referred to in the first section must be confined to the particular subjects referred to in succeeding sections. There is no analogy between this ordinance and one requiring coal, hay, or produce to be inspected or weighed, for this is expressly authorized by the act of 1851; nor with an ordinance requiring a telegraph company to pay a fixed sum for each of its poles, for this fairly comes within the police power over the streets, given by the same act.

How can this ordinance be said to be an exercise of the police power ? It is a tax upon vehicles. An owner of a hack, living twenty miles away, must pay this tax on bis vehicle before it can enter the borough limits. It is in restraint of trade. An ordinance must be reasonable, and for the common benefit; it must not be in restraint of trade, nor ought it to impose a burden without an apparent benefit: The Commissioners of Northern Liberties v. The Northern Liberties Gas Company, 12 Pa. 318; Village of Buffalo v. Webster, 10 Wend. 95; The Mayor of Hudson v. Thorne, 7 Paige 261; Stokes v. City of New York, 14 Wend. 87.

Since the act of 1851 the legislature has passed a number of acts authorizing particular boroughs to license vehicles. Tliis shows at least that the legislative department of the government did not regard the act of 1851 as conferring such power.

This ordinance cannot stand.

Judgment affirmed