Opinion
November 27, 1934.
January 7, 1935.
Liquor laws — State stores — Location — Borough of Media — Act of March 11, 1850, P. L. 778 — Commonwealth as person — Repeal — Act of November 29, 1933, P. L. 15 — Powers of municipal corporations.
1. The Commonwealth is not a person within the meaning of section 34 of the special Act of March 11, 1850, P. L. 1851, page 778, incorporating the Borough of Media, which provides that it shall not be lawful for any person or persons to sell vinous, spirituous or other intoxicating liquors within the limits of the borough. [230-36]
2. Section 34 of the Act of March 11, 1850, P. L. 778, is repealed by the Act of November 29, 1933, P. L. 15, which prohibits transactions in liquor in the State except by and under the control of the liquor control board, and authorizes the board to determine the municipalities and the locations therein, within which stores for the sale of liquor shall be established. [233-6]
3. Municipal corporations are created, governed and the extent of their powers determined by the legislature and subject to change, repeal or total abolition at its will. [226-7]
Constitutional law — Statutes — Title — Sufficiency — Specification — Notice — Repeal — Act of November 29, 1933, P. L. 15.
4. Where a general title, sufficient to cover all the provisions of an act is followed by specifications of the particular branches of the subject with which it proposes to deal, the scope of the act is not limited, nor the validity of the title impaired except as to such portions of the general subject as legislators and others would naturally and reasonably be led by the qualifying words to suppose would not be affected by the act. [235-6]
5. It is sufficient if the title fairly gives notice of the subject of the act so as reasonably to lead to an inquiry into the body of the bill. [234]
6. Where a general act is passed, covering a subject, which repeals inconsistent acts on the same subject, the repealing clause is always germane to the subject and it is not necessary under article III, section 3, of the Constitution, to refer in the title to the repealing clause. [234]
7. The repeal clause of the Act of November 29, 1933, P. L. 15, is not unconstitutional because of its failure to express the subject of repeal in the title of the act. [235-6] Constitutional law — Statutes — Repeal of local law — Notice.
8. Under article III, section 8, of the Constitution, an act is a general one which impliedly intends to operate throughout the State and to supersede all inconsistent legislation, though it removes a barrier which would prevent its operation in particular localities. [235]
Statutes — Construction — Words — Ordinary meaning — Rights of Commonwealth.
9. In construing a statute, words are to be taken in their ordinary sense, unless, from a consideration of the whole act, it appears that a different meaning was intended. [231, 232]
10. Where the rights of the Commonwealth are to be transferred or affected, the intention must be plainly expressed or necessarily implied. [231-2]
Argued November 27, 1934.
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 343, Jan. T., 1934, by plaintiffs, from decree of C. P. Delaware Co., Dec. T., 1933, No. 423 (the appeal was taken to the Superior Court as of Oct. T., 1934, No. 333, and certified by that court to the Supreme Court), in case of Warren A. Baker et al. v. John Kirschnek et al. Decree affirmed.
Bill in equity.
Preliminary objections sustained, and order entered dismissing bill for failure to amend.
The facts are stated in the opinion of the lower court, FRONEFIELD, P. J., as follows:
It was said by Justice MITCHELL in Com. v. Moir, 199 Pa. 534, that "Municipal corporations are agents of the State, invested with certain subordinate governmental functions for reasons of convenience and public policy. They are created, governed and the extent of their powers determined by the legislature and subject to change, repeal or total abolition at its will. They have no vested rights in their offices, their charters, their corporate powers or even their corporate existence. This is the universal rule of constitutional law and in no state has it been more clearly expressed and more uniformly applied than in Pennsylvania."
The right of the Borough of Media to retain in its charter that, "It shall not be lawful for any person to sell vinous, spirituous or other intoxicating liquor within its limits," is now being questioned, by the legislative Act of November 29, 1933, No. 4, by which act the Commonwealth claims the right to maintain and operate through its Liquor Control Board, a Pennsylvania liquor store within the limits of said borough.
To undertake to prevent establishing and operating such a store, six residents and taxpayers of said borough filed their bill in equity, against the Liquor Control Board, the owner of the property proposed to be leased by the board, and against the secretary of the department of property and supplies of the Commonwealth of Pennsylvania, averring that the plaintiffs are residents and taxpayers in the Borough of Media; that the borough was incorporated by a local or special act of assembly of this Commonwealth approved March 11, 1850, P. L. 1851, page 778, entitled "An act to incorporate the Borough of Media in the County of Delaware . . ."; that section 34 of said act provides that "It shall not be lawful for any person or persons to vend or sell vinous, spirituous or other intoxicating liquors within the limits of said borough except for medicinal purposes and for use in the arts"; that John Kirschnek, one of the defendants, is the owner of a brick building and lot of land situate on the southerly side of State Street, and known as 210 West State Street; that Kirschnek has granted to the defendant John L. Hanna, who is secretary of the department of property and supplies in this Commonwealth, an option to lease within thirty days the said premises for one year with an option for an additional term for the use of the Pennsylvania Liquor Control Board for the establishment and operation of a Pennsylvania Liquor Store for the sale of alcoholic beverages pursuant to Act No. 4 of said Commonwealth approved November 29, 1933; that the lease has not been executed; that the alcoholic beverages to be sold by the said Act No. 4 are vinous, spirituous and other intoxicating liquors, the vending of which within said borough is prohibited by said section 34 of the said special act; that defendants claim the right to sell by virtue of the said Act No. 4; that the said Act No. 4 does not repeal section 34 of the Act of March 11, 1850, and in that respect is unconstitutional because the notice of repeal is not expressed in the title; that it is an attempt to amend a local or special law and that the sale of such liquor on said premises will be a menace to the morals, health, happiness and safety of the residents and taxpayers of said borough and to the persons visiting therein, to transact business, and to attend the courts of the county, and will require an increase in police protection and impose burdens upon the taxpayers of said borough, and that the other defendants comprise the Pennsylvania Liquor Control Board.
The bill prays for an injunction restraining the defendants from entering into a lease for said premises for the sale of alcoholic beverages; from establishing on said premises a liquor store and from selling upon said premises alcoholic beverages and to declare Act No. 4 to be unconstitutional in so far as it is intended to repeal said section 34 of the act approved March 11, 1850.
To this bill the defendants filed preliminary objections averring that under Act No. 4 approved November 29, 1933, liquor may be sold on the premises by the Commonwealth acting through the Liquor Control Board. The Commonwealth of Pennsylvania is not a person within the meaning of section 34 of the Act of 1850; that section 802 of the Act of 1933 expressly repeals all acts, including local and special acts, inconsistent with Act No. 4: the Act of 1850 is subject to alteration, amendment or repeal by the General Assembly and Act No. 4 expressly gives notice without exception that it authorizes the operation, etc., of state stores for the sale of alcoholic beverages not for consumption on the premises.
The questions for consideration are:
1. Is the Commonwealth a person within the meaning of the Act of 1850?
2. Is the repeal clause of the Act of 1933 unconstitutional because of its failure to express in the title of the act the subject of repeal and the attempt to amend a local or special law?
The special act incorporating the Borough of Media provides, "It shall not be lawful for any person or persons to vend or sell vinous, spirituous, or other intoxicating liquors within the limits of said borough, except for medical purposes and for the use in the arts; and it shall not be lawful for the court of quarter sessions to grant any license or licenses therefor to any inn or tavern within said borough.
"If any person or persons shall within said borough vend or sell, or cause to be vended or sold, any vinous, spirituous or other intoxicating liquors to any persons (except as provided for in this section), such person or persons so vending or selling shall be liable to indictment, and on conviction thereof shall forfeit and pay for every such offense a sum not less than twenty nor more than one hundred dollars, at the discretion of the court."
The act approved the 29th of November, 1933, is "An act to regulate and restrain the sale, importation and use of certain alcoholic beverages; conferring powers and imposing duties upon the Pennsylvania Liquor Control Board, the department of public instruction, other officers of the state government, courts and district attorneys; authorizing the establishment and operation of state stores for the sale of such beverages not for consumption on the premises, and the granting of licenses, subject to local option, to sell such beverages for consumption on the premises; forbidding importation or bringing of such beverages into the State except as herein provided; prohibiting certain sales or practices in connection with, and transactions in such beverages by licensees and others; making disposition of the receipts from state stores and of license fees; and imposing penalties."
The act itself is deemed to be an exercise of the police power for the protection of the public welfare, health, peace and morals of the people and to prohibit forever the open saloon. The purpose of the act, except as otherwise expressly provided, is to prohibit transactions in liquor which shall take place in the Commonwealth except by and under the control of the Liquor Control Board. The Liquor Control Board has the power and duty to buy, import, possess for sale and sell liquor, under the provisions of the act: to determine the municipalities and the location therein, within which stores for the sale of liquor shall be established: to grant and issue liquor licenses: to lease and equip buildings acquired; to define the powers of the employees and fix their salary; to determine the nature, form and capacity of liquor containers and to do all things necessary to carry out the provisions of the act. The board may make such regulations as are necessary to carry out the provisions of the act and for the equipment and management of the stores, etc.: the duties of the employees; the purchase of liquors; the classes and variety of the liquor to be sold: issuing of price lists; sealing and labeling the liquors; issuing of licenses and the depositing of the receipts; the board shall establish and operate the stores: select the officers and employees. The act also provides when sales may be made at the liquor stores: the stock to be kept: to whom the stores may sell and in what kind of a package: and under what condition may liquors be sold.
The act then provides that the act approved the 27th day of March, 1923 (P. L. 34), entitled, etc., "and all other acts and parts of acts, including special or local acts inconsistent herewith are hereby repealed."
1. The defendants contend that the Commonwealth may sell liquor under the special act because it is not a "person" within the meaning of the Act of 1850.
"In the construction of statutes, the terms or language thereof are to be taken and understood according to their ordinary and usual signification, as they are generally understood among mankind, unless it should appear from the context and other parts of the statute, to have been intended otherwise, and if so, the intention of the legislature, whatever it may be, ought to prevail." Therefore in the case before us, the term being generally understood as denoting a natural person, is to be taken in that sense, unless from the context or other parts of the act, it appears that artificial persons, such as corporations, were also intended to be embraced: School Directors v. Carlisle Bank, 8 Watts 289; Com. v. Trust Co., 26 Pa. Super. 149.
In Jones v. Tatham, 20 Pa. 398, Judge LEWIS, delivering the opinion of the court, where title to land which was claimed by the Commonwealth was questioned, said: "Words of a statute applying to private rights do not affect those of the state. This principle is well established and is indispensable to the security of the public rights. The general business of the legislative powers is to establish laws for individuals, not for the sovereign: and when the rights of the Commonwealth are to be transferred or affected, the intention must be plainly expressed or necessarily implied." See County of Erie v. City of Erie, 113 Pa. 360.
Endlich on the Interpretation of Statutes, section 161, states: "On probably similar ground rests the rule commonly stated in the form that the crown is not bound by a statute unless named in it. It has been said that the law is prima facie presumed to be made for subjects only: that the general business of the legislative powers is to establish laws for individuals, not for the sovereign. At all events, the crown is not reached except by express words, or by necessary implication, in any case where it would be ousted of an existing prerogative or interest. It is presumed that the legislature does not intend to deprive the crown of any prerogative right or property unless it expresses its intention to do so in explicit terms or makes the inference irresistible. Where, therefore, the language of the statute is general and in its wide and natural sense would divest or take away any prerogative or right, title or interest from the crown it is construed so as to exclude that effect": Pittsburgh v. Subdistrict School, 204 Pa. 635.
In McBride v. Board of Comrs., 44 Fed. Rep. 17, it was said, "The State of Washington is not a person within the ordinary or legal definition."
In Fox's Will, 52 N.Y. 531, a devise of land to the United States government, under a statute of New York which provides that lands may be devised "to every 'person' capable by law of holding real estate," was held to be void. The court said, "It must be maintained therefore to sustain the devise in question that the United States is a person within the purview of the statute. . . . No authority has been referred to showing that the word 'person' when used in a statute, may without further definition be held to embrace a state or nation. Its meaning may be extended by express definition so as to include a government or sovereignty.
"In construing a statute, words are to be taken in their ordinary sense, unless, from a consideration of the whole act, it appears that a different meaning was intended. The word 'person' does not in its ordinary or legal signification embrace a state government."
This judgment was affirmed by the Supreme Court of the United States in U.S. v. Fox, 94 U.S. 315, in which Justice FIELDS said, "The term 'person' as here used applies to natural persons and also to artificial persons, bodies politic, deriving their existence and powers from legislation, but cannot be so extended to include within its meaning, the federal government. It would require an express definition to that effect, to give it a sense thus extended: Car v. State, 26 N.E. 778"; State v. Week, 51 L.R.A. 414, 94 N.W. 3; Scott v. Frazier, 238 Fed. Rep. 669.
In Butler v. Merritt, 38 S.E. Rep. 751, where it was sought to restrain the State of Georgia from dispensing liquors under a local option law, it was said that the state was not bound by the general local option law as it was not named therein, and the terms of the act did not indicate any intention to bind it. "The rule that the king or state is not bound by an Act of Parliament or of the legislature unless named therein has come down to us from the earliest times. It has been universally recognized so far as we know, by all of the courts of England and of this country, and was recognized early in the history of this court." . . . See also Osterhout v. Keith, 117 N.Y. Supplement 809; West Coast Mfg. Co. v. West Coast, etc., Co., 66 Pac. Rep. 97.
There is nothing in the Media Act to show that there was any thought when the act was passed of preventing the Commonwealth from selling intoxicating liquor in the borough. It follows that whether the Act of 1850 is or is not repealed, the Commonwealth may enter into a lease for the premises mentioned in the bill, for the sale of alcoholic liquor; and establish on said premises a liquor store and sell thereon alcoholic liquor through the Pennsylvania Liquor Control Board.
2. We are also holding that the Act of 1933 repeals the special Act of 1850.
Prior to the Act of November 29, 1933, it was unlawful (with some exceptions) for any person to manufacture, sell, possess or transport in this Commonwealth any intoxicating liquor for beverage purposes.
As a comprehensive liquor control, that act was passed taking care of the entire question. It is entitled "An act to regulate and restrain the sale, importation and use of certain alcoholic beverages; conferring powers, etc."
There is no notice in its title of the repeal of any act, though the act has a clause in it repealing the Act of 1923 and of "all other acts and parts of acts including special or local acts inconsistent herewith."
It is argued that the failure to give such notice, makes that clause unconstitutional, and hence there is no repeal.
When a general act is passed, covering a subject, which repeals inconsistent acts on the same subject, the courts have held that the repealing clause is always germane to the subject and it is not necessary to refer in the title to the repealing clause to save its constitutionality under article III, section 3.
In Craig v. Trustees, 6 W. N.C. 421, where the constitutionality of an act was questioned because its subject was not clearly expressed in the title, it was said by the Supreme Court: "All the presumptions are in favor of the constitutionality of an act of assembly. It comes to us with the seal of approval of two of the coordinate departments of the government. To doubt is to decide in favor of its constitutionality. It is only in a clear case that we are justified in declaring an act to be unconstitutional. The Act of April 18, 1877, . . . is germane to the subject of the original bill. This is all that is required. . . . They all relate to cemeteries and the removal of the dead therefrom."
In State Line and Juniata R. R. Co.'s App., 77 Pa. 429, it was held that "The true rule is, that where the legislation in the supplement is germane to the subject of the original bill, the object of such supplement is sufficiently expressed in the title."
"If the title fairly gives notice of the subject of the act so as reasonably to lead to an inquiry into the body of the bill it is all that is necessary": Allegheny Co. Home's Case, 77 Pa. 77.
In Com. v. Moir, 199 Pa. 534, Justice MITCHELL stated: "It is said that the act has more than one subject and one not expressed in the title. This is based on the last section of the schedule, which is a repealing clause. It is enough to say at present that the repeal of previous acts on the same general subject is always germane to the title. Usually the repealing clause is only declaratory of what would be the legal effect without it, but it is useful as preventing doubt upon the legislative intent."
In Lutz v. Matthews, 37 Pa. Super. 354, 360, it is stated: "As its title indicates, the Act of 1905 is a general and comprehensive statute providing for and defining the rights, remedies, duties and liabilities of purchase of real estate at judicial sales, and of their grantees, heirs and devisees, and of the persons then in possession thereof. It contains nineteen sections, the last of which expressly repeals several cited acts and amongst them the Schuylkill County Act of May 13, 1871, P. L. 820, relating to the same subject, and concludes with a repeal of 'all other acts and parts of acts thereof, general, special or local, inconsistent herewith.' "
The constitutionality of this act was questioned (first) because . . . the provision of section 8, article III, of the Constitution relative to the publication of notice of the intention to apply for the passage of a local or special bill, was not complied with, and (second) because the subject of the repeal of local legislation is not expressed in the title.
As to the first reason, when the act is a general one which impliedly intends to operate throughout the state and to supersede all inconsistent legislation, it "is none the less a general law because it removes the barrier which would prevent its operation in particular localities. It is therefore not within the constitutional provision."
"As a complete answer to the second proposition, it is sufficient to quote the ruling of the Supreme Court in Com. v. Moir, 199 Pa. 534, as thus expressed by the present Chief Justice (see supra).
In Com. v. Miller, 313 Pa. 140, the present Chief Justice said: "Where a general title, sufficient to cover all the provisions of an act is followed by specifications of the particular branches of the subject with which it proposes to deal, the scope of the act is not limited, nor the validity of the title impaired except as to such portions of the general subject as legislators and others would naturally and reasonably be led by the qualifying words to suppose would not be affected by the act. . . . The express enumeration of the specific subjects must be affirmatively misleading as to the intent to exclude others or the title will not be made invalid by it. . . . Quoting these words the court below states that 'Tested by these principles the title to the Act of 1907 is not affirmatively misleading because there is nothing in it to indicate that the subject of filling vacancies is excluded. This is incidental to the general subject and it is not necessary to recite it in the title.' " See Bosack v. Schuylkill Co., 311 Pa. 157; Com. v. Matthews, 303 Pa. 163; Hammond v. Aluminum Co., 261 Pa. 370; Jefferson Co. v. Rose Twp., 283 Pa. 126.
It follows that the Act of November 29, 1933, expressly repeals section 34 of the Act of 1850 when they are, as here, inconsistent.
By the local act "It shall not be lawful for any person or persons to vend, or sell vinous, spirituous or other intoxicating liquors within the limits of said Borough of Media." The Act of 1933 does not make it unlawful to sell alcoholic, spirituous, vinous, fermented or other alcoholic beverages or combination of liquors and mixed liquors, if sold by and under the control of the Liquor Control Board. This act gives the Liquor Control Board (section 201c) the right without restriction to determine the municipalities within which a liquor store may be established.
Under the local act the penalty for selling liquor is a fine of not less than twenty nor more than one hundred dollars and under the general law the fine is not more than one thousand dollars and/or imprisonment for not more than one year for the first offense and for the second and subsequent offenses the same fine and two years imprisonment.
And now March 13, 1934, the preliminary objections to the bill are sustained in whole. The plaintiffs are required to amend their bill within ten days from the receipt of notice of this order under penalty of a dismissal of the whole bill.
MacDADE, J., filed a concurring opinion.
Plaintiffs appealed to Superior Court. Petition to certify appeal to Supreme Court granted.
Error assigned was dismissal of bill, quoting record.
A. B. Geary, of Geary Rankin, with him Hugh Bonner and Matthew Rankin, for appellants.
George W. Keitel, Assistant Deputy Attorney General, with him Wm. A. Schnader, Attorney General, for appellees.
The decree of the court below is affirmed on the comprehensive and convincing opinion of President Judge FRONEFIELD; costs to be paid by appellant.