Mayor v. Davis

6 Watts & Serg. 269

Opinion

The opinion of the Court was delivered by

Gibson, C. J.

So far as statutes for the regulation of trade impose fines or create forfeitures, they are doubtless to be construed strictly as penal, and not liberally as remedial laws. Of this stamp are revenue laws, and laws for the registry of ships, as was held in Hubbard v. Johnston, (3 Taunt. 377), and of the same stamp is at least one of the laws for the regulation of this market, so far as the corporation is empowered by it to enforce obedience to it by the infliction of a penalty. But it cannot be maintained that a penal statute is to be construed strictly in all its parts; or that the words of it are to be narrowed in their operation, even in those parts of it which define the-offence and annex the penalty. “We are to look at the words, in the first instance,” said Justice Bumek, in Rex v. Hodnett, (1 T. R. 96), “and, where they are plain, we are to decide on’them.' If they are doubtful, we are to have recourse to the subject-matter.” - The true rule is, that words descriptive of an offence, or the punishment of it, are not to be bent to the one side or the other. The question, then, is, whether the. Act of the 12th February 1795, which explicitly prohibits the sale of beef in the western moiety of every High street market-house above Third street, has been expressly or impliedly repealed, in whole or in part, by the Act of the 19th March 1810.

The Act of the 23d March 1786, which is the first member of the series, did no more than authorize the corporation to extend the market in High street, from Third to Fourth street, and still further when it should be thought necessary: but on condition that the western moiety of each market-house should be left free to the country people. The stalls in the other moiety were to be rented. This does not touch the case before us. Then came the Act of 1795, reciting that the intentions of the Legislature were likely to be frustrated by the intrusion of persons of a different description from those intended to be provided for by the preceding Act, and declaring that “ it shall, not be lawful for any person whatever to sell any beef in the western moiety of the market-house or shambles in High street between Third and Fourth streets; nor for any person exercising the trade of a butcher or victualler to occupy any stall or sell any meat of any kind, within the said western moiety of the market-house or shambles aforesaid.” This settled the question as to the market-house then about to be built. But the Act gave the corporation the same power that was given to it before, to extend the market indefinitely to the west, expressly subject, however, to the preceding prohibition. , Hence, it became unlawful to sell beef in the western moiety of any market-house on High street subsequently erected. By what statute has this prohibition been repealed?

The Act of the 6th April 1802, which is alleged to bear on it because it declares generally that any person may sell provisions in any city, borough, or corporate town, was not intended to be applied to the High street market, which had a code of its own; nor was it intended to destroy, at one fell swoop, all restrictive regulation elsewhere. Any one may doubtless sell provisions in a market-town, but only at the market-place appointed for the sale of the particular article. There certainly was no design to sanction the intrusion of their poultry and pigs into the churches or.the dwellings of the inhabitants, or into any other place that would be improper for the exhibition of them. It is impossible to conjecture, at this day, what was the grievance intended to be redressed by it, or why a law declarative of a right so unquestionable before it, should have been thought necessary. It was probably to maintain the quarrel of a few market-people with the authorities of some incorporated village or town; but it was certainly unnecessary to back it with the august power of the Legislature. Nor does the Act of the 19th March 1804, which authorizes the corporation of .Philadelphia to establish markets, with analogous regulations in other parts of the city, touch the question more nearly. We come then to the Act of the 19th March 1810, which consists of two sections containing very nearly the same provisions for the very same thing; and which consequently exhibits a lack of precision and perspicuity.

The first provides that it shall be lawful for the corporation to extend the market in High street or elsewhere, and to build market-houses ; “ to let or demise the one-half of the stalls they may erect, to such persons from the country as send or carry the produce of their farms to the said market, and to no others; and to let the other half of the stalls so erected, at their own discretion, to such persons, victuallers or butchers, as to them may seem proper; any law, usage or custom to the contrary notwithstanding.” The concluding expletive was not thrown in to give the section a repealing tendency. It was freely used by the Legislature, at that day, to round off a period, and perhaps to jog the memory of the Judges, lest they should forget that posterior laws abrogate those which happen to be prior and contrary to them. The other section provided, that “ whenever the market-house in High street shall be extended, it shall not be lawful for any victualler to sell beef in the western moiety of any market-house or shambles that may be erected at any time hereafter in High street; but the western moiety shall be let to such persons from the country who (as) send or carry their produce to market, and no others; and the one-half of the stalls that may be erected elsewhere, shall also be let to such persons from the country who (as) send or carry the produce of their farms to market, and no others:” provided, that the annual rent do not exceed twenty dollars the stall. From this, it is said, we must infer, that because victuallers, and they only, are expressly forbidden to sell beef in the western market, and because the stalls are required to be let to those who fetch the produce of their farms to market, the occupants were to be at liberty to use them for the sale of every thing, without exception, which happens to be the immediate or remote produce of his farm. But why was this statute enacted, and what was the mischief to be corrected by it? Certainly not to authorize the extension of the market, for that had been doubly done before. The object was simply to let the stalls. And here let me say, it is the bungling attempts of the penman to say the same thing in different words, which so ¡frequently involves the meaning of the legislature in uncertainty. It is a matter of history, that the mischief which called for correction, was the confusion and jostling which occurred before their several places were assigned to the country people ; and the legislature intended no more than to apply a remedy to it, by giving each a separate right to a stall. Surely the petty rent of twenty dollars was not meant to be compensation for a privilege which would put a grazier on a par with a regular victualler, who is conípelled to pay much more for his stall. Why then should it be thought that because a moiety of the stalls is required to be let to the country people, they must necessarily be at liberty to use them for the sale of every thing which a farmer brings from the country ? The inference attempted, is that because the stall is let to one who markets the produce of a farm, he may use it to market whatever is the produce of a farm in the largest sense. But we are called on not to put a construction on the Act of 1795, which is in some measure a penal one — for it needs no construction — but on the Act of 1810, which is asserted by the defendant himself to be remedial; and if we are to be guided by common sense applied to the context, we must suppose that there are many thirigs which are necessarily exceptions to the general expression. Swine, horses, neat cattle, sheep, manure, cord-wood, hay, and many other things not more savoury, would be out of place in a market-house for the sale of poultry, vegetables, fruit, eggs, milk, butter, lard, and other provisions for the mouth ; yet they are strictly produce of the farm : much more so, indeed, than beef, which, though it comes, like every thing else, primitively from the soil, is as much a manufactured article as leather, cloth, or charcoal. The ox is "the produce of the farm; beef is the produce of the slaughter-house and the shambles. It is manufactured by the professional skill of an artisan, whose business is as distinct from that of a farmer, as is that of a flax-dresser or a wool-comber. That the farmer sometimes works up his own raw materials, cannot prevent it from taking a new denomination from the additional labour expended on it. The versatility so conspicuous in the American people, often makes him his own weaver; yet it follows not. that his linsey-woolsey, though cut from his own sheep, is the less manufactured, or the less improperly denominated the produce of his farm. The blending of trades does not change the nature of the wares. When the farmer slaughters his own ox, the beef is not less the product of the slaughter-house; and this may be the reason why it was thought unnecessary to re-enact the prohibition of the preceding Act, against the sale of beef in the western parts of the market-houses, by any person, whether farmer or victualler. The three statutes which 1 have drawn particularly into view, being parts of a system, are to be taken together as one; for it is to be intended that the system was meant to be consistent throughout. The interpretation of statutes in pan materia by each other, has been carried so far, that it was said by Lord Mansfield, in Rex v. Loxdale, (1 Burr. 447), “ that all 'which relate to the same subject, notwithstanding some of them may be expired or not noticed, must be taken to be one system, and construed consistently.” But what is more to the purpose, it was ruled in The King qui tam v. Smith, (4 T. R. 419), that when the same word is used in statutes which are in pari materia, a distinction as to the sense in which it is used in the one, is a legislative exposition of the sense in which it is to be understood in the other. And in Bacon’s Abr. Title, “Statute” I. it is said that words and phrases whose sense, in a statute, has been ascertained, are to be understood in the same sense when used in a subsequent statute. Now the phrase ‘ produce of a farm,’ was taken, in the Act of 1795, not to include beef; and it is consequently not to include beef in the Act of 1810. As the Act of 1795 expressly gives the corporation power to enforce the prohibition by such by-laws as might be found necessary, the penalty was legally imposed, and must be recovered.

Judgment of the Common Pleas reversed, and judgment of the Mayor affirmed.