Borough of Warren v. Geer

11 A. 415, 117 Pa. 207, 1887 Pa. LEXIS 252

• Court: Supreme Court of Pennsylvania
• Decided: October 3, 1887
• Docket: No. 177
• Status: Published

Opinion

Opinion,

Mr. Justice Green :

There is certainly nothing in the ordinance in question in this case which conflicts either with the constitution of the United States or of the state of Pennsylvania. It is an ordinance which requires every person canvassing from house to house in the borough of Warren for the purpose of selling or soliciting orders for books or pictures or certain other enumerated articles, to take out a license from the burgess for that purpose and pay certain fees therefor. By another provision of the ordinance it is declared that it shall not apply to persons holding mercantile licenses within the borough nor to persons resident in the county selling their own farm produce. The effect of the ordinance would seem to be to subject persons who would otherwise pay no license for the privilege of doing business within the borough, to the duty of paying something for the privilege,when they undertake to exercise it without incurring the expense of a mercantile license. There is surely notliiúg unreasonable in such a requirement. It is difficult to understand why one portion of the community which engages in the transaction of business in a municipality, should pay a license fee for the privilege of doing so, and another portion should have practically the same privilege without paying for it, simply because the business is done in a different manner. The argument that it is contrary to common right to require a license fee to be paid in the latter case, and therefore such a requirement is void, proves too much, since the same argument is applicable to the law requiring any license fees to be paid in any case. The only question, therefore, is whether the borough of Warren possesses, either by express grant or necessary implication, the right to enact the ordinance in question. It may well be questioned whether it does not possess the necessary authority under the common law power incident to all boroughs as public municipal corporations ; but, however that may be, we are of opinion that, both under the incorporating act of 1832, P. L. 261, and under the general borough law of 1851, the power clearly exists. Section 6 of the act of 1832 gives the council of this borough express power “to enact such by-laws and make such rules, regulations and ordinances as shall be determined by a majority of them necessary to promote the peace, good order, benefit and advantage of said borough, particularly providing for the regulation of the markets, streets, alleys, highways,” etc., therein. This power is very broad indeed and practically includes whatever conduces to the benefit and advantage of the borough, and would seem to restrict the limitations upon its exercise to those which require ordinances to be reasonable, and not in conflict with the state or federal constitutions. In addition to this, however, the general borough law of April 3, 1851, § 2, par. XI, P. L. 320, gives to all boroughs the power, “to make all needful regulations respecting markets and market days, the hawking and peddling of market produce and other articles in the borough,” etc., etc. The peddling of “other articles” besides market produce, includes everything which may be disposed of by the method called “hawking and peddling,” and we cannot say that this does not include canvassing from house to house and soliciting orders for books. We certainly cannot make such a presumption upon a mere demurrer which alleges only the insufficiency in law of the declaration. We think the demurrer should have been overruled and the defendant required to answer over.

Judgment reversed and procedendo awarded.