# City of Wilkes-Barre v. Garabed

> Superior Court of Pennsylvania · July 28, 1899 · 11 Pa. Super. 355

URL: https://www.frixlaw.com/law-library/cases/6272672

## Case

- **Full name:** City of Wilkes-Barre v. Joseph Garabed
- **Court:** Superior Court of Pennsylvania
- **Decided:** July 28, 1899
- **Citations:** 11 Pa. Super. 355; 1899 Pa. Super. LEXIS 144
- **Precedential status:** Published
- **Opinion:** Dissent by Berber
- **Judges:** Beaver, Beeber, Berber, Orlady, Porter, Rice, Smith, William
- **Cited by:** 22 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6272672

## Opinion text

Berber, J.,
dissenting:
Does the ordinance conflict with the provision of the fourteenth amendment of the constitution of the United States which deprives the states of the power to “ deny to any person within its jurisdiction the equal protection of the laws ? ” Upon the authority of the case of Yick Wo v. Hopkins, 118 U. S. 356 , I am constrained to say that in my opinion it does. I cannot agree with the learned judge below that the doctrine of this case is that a municipal ordinance which made arbitrary and unjust discriminations founded on differences of race is inconsistent with this fourteenth amendment. The case goes much further than this. The ordinances under consideration in that case provided that no one should establish a laundry in the city of San Francisco “without having first obtained the consent of the board of supervisors, except the same be located in a building constructed either of brick or stone.” The Supreme Court of California, from whose judgment the appeal was taken, had considered that the ordinances vested in the board of supervisors the usual discretion of granting or withholding assent to *375 the use of wooden buildings as laundries, but the Supreme Court of the United States refused to adopt that view of them. They were held to confer, not a discretion to be exercised as to whether certain rules and conditions prescribed for and operating upon all alike had been complied with, but a simple and naked arbitrary power to be exercised upon the mere whim or caprice of the board guided and controlled by no limitations or restraints. The greater part of the opinion is devoted to showing how such an unrestricted and unguided power is contrary to the principles upon which our institutions are founded and the nature and theory of our government. It was said that it is our boast that we live under a government of law and not of men, and that the phrase granting “.the equal protection of the laws” was equivalent to a grant of the protection of equal laws. The existence of such an arbitrary power was said to be intolerable in such & country as ours where there was no room for the play of passion, or whim, or caprice. It is true the facts of this case showed that the ordinances were applied in a way that discriminated against persons of a particular race which led the court to say: “ In the present ease we are not obliged to reason from the probable to the actual and pass upon the validity of the ordinances complained of, as tried merely by the opportunities which their terms afford, of unequal and unjust discrimination in their administration. For the cases present the ordinances in actual operation, and the facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion that whatever may have been the intent of the ordinances as adopted, they are applied by the public authorities charged with their administration, and thus representing the state itself, with a mind so unequal and oppressive as to amount to a practical denial by the state of that equal protection of .the laws which is secured to all.” We cannot, however, take this to mean that the court would have sustained the ordinances had not this partial and unjust operation of them been shown, because if we did, we would ignore the greater part of the opinion which was devoted to showing the invalidity of the ordinances on the ground that they lodged an unrestrained and arbitrary power with a single individual and we would have the court deciding that the validity of an ordinance depends upon the impartiality of its execu *376 tion. The ease of Barbier v. Connolly, 113 U. S. 27 , upon which the court below relied, was distinguished in the Yick Wo case and the difference is plain. In the Barbier case the 4th section of the ordinance was the only one under consideration, and so far as appears from the report of the case this section did not contain the offensive feature of a permit being required from a particular person or board. It was simply a prohibition of the carrying on of the laundry business within certain limits in the city of San Francisco from 10 o’clock at night until 6 o’clock of the morning of the following day. Besides, an examination of the other sections of the ordinances, as set forth in the opinion, shows, taken altogether, they required the parties from whom the permits were to be obtained to go upon the premises upon which it was proposed to conduct the laundry and see that certain requirements of the ordinances as to the condition of the property and the precautions to be taken to prevent fires had been complied with, and if found satisfactory in this respect, the license was to be issued. This was a case where the discretion of those who were to give the permit was limited and controlled by the extent to which certain well defined and clearly described conditions had been complied with.
It is an established doctrine of the courts that every corporation has the implied power to pass by-laws, but such by-laws must be reasonable, consistent with the general principles of the common law, especially with those relating to the liberty of the subject, with the general law and policy of the state, and must not be oppressive, but impartial, fair and general: 1 Dillon on Mun. Corp. (6th ed.) secs. 319-322. It is true, if the legislature clearly gives a municipal corporation the power to pass by-laws of a specified and defined character, and those passed in pursuance of such a power are not in conflict with the constitution, the courts are not at liberty to declare them invalid because unreasonable, as they might do if the same bylaws were passed under the implied power of the corporation or under a general grant of power: 1 Dillon on Mun. Corp. (6th ed.) sec. 328. The powers given by the charter of the city of Wilkes-Barre are not of that class. They are found in the first clause of section 27 of the Act of May 4, 1871, P. L. 539, where the city council are given the power to pass such “ by-laws .... not inconsistent with the laws of the commonwealth, as *377 they shall deem necessary for the good government of said city,” and in the thirteenth clause of the same section-where they are given the power “ to prohibit and remove .... any nuisance .... whether' in the highways or in public grounds.” The powers contained in these grants cannot be held to save ordinances passed in pursuance of them from the scrutiny of the courts upon the ground that they are passed in pursuance of a power to pass ordinances of a specified and defined character. They are too general and undefined to put ordinances passed in pursuance of them in that class. Any ordinances resting for their authority upon such powers as are granted to the city of Wilkes-Barre, enumerated above, are still subject to a decision by the courts as to their reasonableness, lawfulness and constitutionality: O’Maley v. Freeport, 96 Pa. 24 .
It is equally well established that the question whether an ordinance is reasonable and consistent with the law is for the court and not for the jury. Of course courts are bound, in determining this question, to consider all the circumstances of the particular municipal corporation whose ordinances are under review, the objects sought to be obtained and the necessity which exists for the ordinances : Dillon on Mun. Corp. (6th ed.) sec. 327. The courts of our own state have frequently exercised this power. Two notable instances of it are found in Commissioners v. Gas Co., 12 Pa. 318 , and in Kneedler v. Norristown, 100 Pa. 368 .
It appears clear to me that the ordinance in question in this case offends not only against the fourteenth amendment to the constitution of the United States, but also against the rule that ordinances must be fair, impartial, general, not oppressive, and consistent with the laws or policy of the state. It is evident that it does not intend to prohibit all playing on musical instruments or beating upon drums in the public streets, for it provides for a permit to do it, which clearly shows that the city council did not intend to declare against it, under any and all circumstances, as a nuisance. Nor does it prescribe regulations for the use of musical instruments or drums upon the streets with which all desiring to use them can comply. It divides all persons who desire to make, music upon the streets into two classes by an arbitrary line, upon one side of which are those who are permitted to play upon instruments or beat upon drums *378 by the mere will and pleasure of the mayor, and upon the other side are those who are not permitted, or have been permitted and then refused, by the mere will and pleasure of the mayor. Both classes are alike in this, that they enjoy or are denied a. permissible line of conduct at the mere will of the mayor, and ■this without any regard whatever as to the character of the individuals or the circumstances under which they desire to do this allowable act. The ordinance is not like the license laws of the state which lodge a discretion with a public officer or with the court to grant or withhold license to sell liquors, because these laws prescribe certain qualifications on the part of the applicant and require certain and well defined conditions to be performed and a public necessity to exist, all of which must be taken into consideration when the judicial discretion is to be exercised. Even when the discretion is exercised under these conditions the laws are careful to provide an additional security against an abuse of discretion by giving an appeal.
The legislature of. this state shows consistent care to prevent an arbitrary and uncontrolled exercise of discretion when licenses or permits are to be issued. An examination of the different acts of assembly regulating the issuance of licenses or permits will show a marked difference in the manner of directing them to be issued between those acts in which such licenses or permits are required merely for purposes of revenue, and those in which they are required by laws founded upon the police power, passed for the purpose of regulating certain kinds of business with a view of conserving the good order or the good morals of society. Those required for purposes of revenue only are usually directed to be issued upon the mere payment of the fee. No room is left for a discretion to be exercised by the officer required to issue them. Those required because it is thought well, for the sake of the good order or good morals of the community, to regulate or restrain the business to be licensed or permitted, are usually directed to be issued only after it has been ascertained judicially that certain clearly defined conditions have been performed and prescribed limitations preserved, which conditions and limitations affect all alike similarly situated. The studiously maintained difference between these two classes of acts was clearly pointed out by Mr. Justice Mitchell, when sitting as a common pleas judge in Philadelphia county, in *379 Com. v. Stokley, 12 Phila. 316 , and in In re Stedman’s Appeal, 14 Phila. 376 . In considering what was the reason that the act under consideration, which was one regulating the issuance of licenses to theatres, provided for an appeal from the exercise of a discretion therein allowed, he said in the latter case: “ Why, then it may be asked, was an appeal given to the court? It appears to me that the only reason was the invincible repugnance, under our institutions and habits of freedom, to the lodging of an absolute power, without supervision, in any one man, however competent as to himself or responsible as to his office.” After showing how differently mayors, inspired by different purposes, might issue or refuse licenses he further said: “ To guard against this possibility, and to secure the exercise of a fair and legal discretion, mindful alike of the public interests and of private rights, to do everything that is lawful in a lawful manner, the legislature, when by the Act of May 22, 1879, P. L. 73, it gave the mayor a discretion to issue or revoke a license, provided also that Ids discretion should not be arbitrary and unquestionable, but subject to appeal.” These observations of his as to the care which the policy of our laws requires to be taken to hedge about, control and restrain the exercise of a discretion are abundantly sustained by the laws themselves.
The conclusion which I have reached in this case is in my opinion sustained by many authorities in addition to those already cited. City ordinances, different in no substantial respect from the one under consideration, have been declared void by the highest courts of several of the states: Anderson v. Wellington, 40 Kan. 173 ; 2 L. R. A. 110; Richmond v. Dudley, 129 Ind. 112 ; 13 L. R. A. 587; State v. Dering, 84 Wis. 585 ; 19 L. R. A. 859, where will be found a voluminous collection of the cases on this subject; Chicago v. Trotter, 136 Ill. 430 ; St. Louis v. Russell, 116 Mo. 248 ; 20 L. R. A. 721; Baltimore v. Radecke, 49 Md. 217 ; In re Frazee, 63 Mich. 396 . It must be conceded that the Massachusetts and North Carolina cases are in conflict with o.ur conclusion. My examination and consideration of these cases has satisfied me that the preponderance of the authorities of this country and the general policy of our own state laws sustain the conclusion at which I have arrived. Nor do I think that the case of Homer v. Com., 106 Pa. 221 , conflicts *380 with this conclusion. In that case section 4 of the Act of Assembly of August 26, 1721, 1 Sm. L. 129, requiring a special license from the governor to sell fireworks in Philadelphia was before the court. A verdict was rendered against the defendant by agreement for the amount of the penalty subject to two points reserved: (1) Whether section 4 of the act of assembly of August 26, 1721, is still in force. (2) Whether said section has not become obsolete by reason of subsequent legislation. These were the only two points argued by counsel so far as their argument reported reveals, and it clearly appears from the opinion of the court that the only decision made was that the act had not become obsolete by nonuser, nor had it been repealed by subsequent legislation. In no event can it be considered a decision sustaining the validity of the statute after a consideration of an objection to it on the ground of the presence of the clause requiring a special license from the governor. In my opinion that objection to this act has not been adjudicated. The situation, as left by that decision, is not substantially different from that revealed by Philadelphia v. Ridge Ave. Railway Co., 102 Pa. 190 , and Ridge Ave. Pass. Ry. Co. v. Philadelphia, 124 Pa. 219 . In the first of these cases the city of Philadelphia recovered a verdict against the Ridge Avenue Passenger Railway Company which was sustained upon the assumed validity of the Act of March 8, 1872, P. L. 264. In the second case this act of March 8, 1872, was declared unconstitutional in a suit by the city of Philadelphia, which could not have been sustained except upon the theory of the unconstitutionality of the act of 1872. The same plaintiff in the first suit sustained a verdict in its favor upon the assumed constitutionality of an act, and in the second suit sustained a verdict in its favor because the same act, which had been assumed by all parties, including the court, to be constitutional, was unconstitutional. The Supreme Court was not held to have decided upon the constitutionality of the act in the first suit for the evident reason that the question had not been raised and passed upon in that suit.
I would reverse the judgment in this case and direct the prisoner to be discharged.
William; W. Porter, J., joins in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6272672. Public record. Not legal advice.