McGonnell's License

Opinion by Beaver, J., By the Act of March 27, 1866, P. L. 339, the issuing of licenses within the borough of Coudersport, in the county of Potter, or within two miles of the same, was prohibited. The' second section provides: ‘‘ That, if any person or persons shall, for the purposes aforesaid, sell any spirituous, vinous, malt' or brewed liquors, • as aforesaid, after the passage of this act, — 645 — within the limits aforesaid, he, or she, upon conviction thereof, shall be fined, in a sum of not less than $50.00 nor more than $200 and, upon a second conviction thereof, in addition to the fine already imposed, shall undergo an imprisonment in the county jail for a period of not more than three months : Provided, however, that persons who are already licensed to sell said spirituous, vinous, malt and brewed liquors as aforesaid, within the limits aforesaid, shall not be prevented from selling the same, until after the expiration of their licenses. And provided also, that manufacturers of domestic wines shall not be prohibited from selling the same in quantities of not less than one pint.” The Act of April 11, 1866, P. L. 658, prohibited the granting of licenses to sell intoxicating drinks within the county of Potter. The second section thereof provided: “ That, if any person, or persons, within the said limits, shall sell, trade or barter away any vinous, spirituous or any kind of intoxicating liquors or intoxicating tonic or other bitters, to be used as a beverage, he or she, upon conviction thereof in the court of quarter sessions of said county, shall be fined in a sum of not less than $50.00 nor more than $200 for the first offense and, upon a second conviction, the fine shall not be less than $100 nor more than $300, and, in addition to the fine, the person so convicted a second time shall undergo imprisonment in the county jail for a period not less than thirty days nor more than six months: Provided, however, that manufacturers of domestic wines and of malt and brewed liquors shall not be prohibited from selling their own products in quantities of not less than one gallon; and provided further that this act shall not apply to druggists who sell unmixed alcohol or wine or brandy on the written prescription of a regular practising physician.” It is to be observed that the later act covered all of the territory and more than was embraced in the earlier ; that it included all the intoxicating drinks mentioned in the earlier law as well as other things ; that it also included all the fines mentioned in the earlier law and increased those to be imposed for a second offense; that it increased the amount which manufacturers of domestic wines were allowed to sell, and added malt and brewed liquors to the articles not prohibited; in short, — 646 — that in every essential particular the later law embraced everything contained in the earlier and other things in addition. It is clear to our minds, therefore, that the later law, which included the entire county of Potter, repealed, by implication, that portion of the earlier which related to the borough of Coud’ersport, in the county of Potter. It is true there is no distinct repealing clause, but here were two acts of assembly passed the same year, within fifteen days of each other, relating to the same subject, covering in the later one the same territory included in the earlier, the later one including provisions not included in the first, adding additional penalties for a violation of the later law and increasing, by the later act, the privileges allowed to manufacturers under the first and adding thereto. It is plain, therefore, that everything to be secured by the earlier law was maintained by the later and that the two could not be consistently administered together. We are clear, therefore, that, upon well-settled authority, the earlier law was repealed, by necessary implication, by the later. April 28, 1899, both of these acts of assembly were attempted to be repealed (P. L. 67 and 68). The first sections of each of those acts contain words of absolute repeal. The second sections of both of them are identical, except that the word county appears in one, in place of borough in the other, and are as follows : “ Section 2. Provided said repeal shall not go into effect, unless a majority of the duly qualified voters of said borough (or county) shall vote in' favor of said repeal at an election to be held as provided for in section three of this act.” The third sections of both acts are also identical, except that the word county is used in the one for borough in the other. “ Section 3. The same shall be submitted to a vote of the duly qualified electors of said borough (county) at an election to be held on the third Tuesday in February, one thousand nine hundred; such election shall be • held at the places and by the officers provided by law for the holding of municipal elections, and it shall be the duty of inspectors and judges of such elections to receive the ballot, as provided by law, from electors qualified under the constitution of this state to vote in such districts'; such ballots to contain the word ‘ repeal ’ and ‘ no repeal,’ and to deposit such ballots in a box — 647 — provided for that purpose, as is provided by law, and the ballots so received shall be counted and a return thereof made to the clerk of quarter sessions of the proper county, duly executed, as required by law as to other ballots, and the clerk shall make a record of the same.” These are the essential parts of the several acts necessary to an understanding of the main question raised by this appeal and presented for our consideration. The first section of the second article of the constitution provides that “ the legislative power of this commonwealth shall be vested in a General Assembly which shall consist of a Senate and House of Representatives.” That the legislature cannot delegate its legislative power to any other body or authority has nowhere been more clearly stated than in Locke’s Appeal, 72 Pa. 491, in which Mr. Justice Agnew, delivering the opinion of the court, says: “ That a power conferred upon an agent, because of his fitness and the confidence reposed in him, cannot be delegated by him to another, is a general and admitted rule. Legislatures stand in this relation to the people whom they represent; hence it is a cardinal principle of representative government that the legislature cannot delegate the power to make laws to any other body or authority.” If, therefore, we consider the repealing acts of April 28, 1899, P. L. 67 and 68, as a whole, or if we assume that the Act of April 11, 1866, P. L. 658, relating to the entire county of Potter, repealed by necessary implication the Act of March 27, 1866, P. L. 389, relating to the borough of Coudersport and parts adjacent thereto, we feel bound to hold that the said acts, or at least the last named Act of April 28, 1899, P. L. 68, was clearly unconstitutional, inasmuch as, by the second section thereof, the legislature specifically provides that the repeal provided for in the first -section, absolute on its face, shall not go into effect unless a majority of duly qualified voters of said county shall vote in favor of said repeal at an election to be held as provided for in section 3 of this act. It requires no argument to show that the repeal of a law already in existence is as much an act of legislative power as the enactment of a positive, affirmative statute. It is clear that, on April 28, 1899, the prohibitory law for Potter county was in full force and effect, and its provisions operative — 648 — throughout the territory covered by it. What was the object of the act of April 28, 1899, supra? Clearly, to repeal the previous act. Did the act in itself repeal it? Clearly, no. What was required for its repeal? Just as clearly, the act of the legislature, plus the vote of the people : in other words, if the people voted for repeal, the prohibitory act was repealed; if they voted against repeal, if was not repealed. If this was not a delegation of the power of the legislature to the people, what was it ? Can the first section of the act be upheld and the remaining sections declared void, because of their unconstitutionality ? In numerous cases in Pennsylvania this has been done, but they were cases in which, as in Allegheny County Home’s Case, 77 Pa. 77, and McGee’s Appeal, 114 Pa. 470, the titles of the several acts therein considered were good as to some sections and bad as to others ; or as in Ruan Street, 24 W. N. C. 460, the first and second sections of the Act of May 6,1887, P. L. 87, were held to be good, changing thereby what was local or special in road cases in the city of Philadelphia, so as to harmonize with the general system prevailing throughout the rest of the state ; and sections three and four were bad, as violating article three, section seven of the constitution which prohibits local or special laws, “regulating the practice or jurisdiction of any judicial proceeding or inquiry.” These and other cases of like character were based upon the general rule that, if the unconstitutional portions can be taken out and still leave a complete legislative act, capable of being executed in accordance with its plain intent and not in anywise depending on the rejected parts, the act will still be valid : Cooley’s Cons. Lim. 178. But it seems to us that the act under consideration comes clearly under the other general rule, equally well settled, that “ If the parts are so mutually related as to make it evident that the legislature intended them to constitute an entire whole, so that, if all could not be carried into effect, none would have received the legislative sanction, all must be declared unconstitutional: ” Cooley’s Cons. Lim. 177. It is argued, however, that the case comes within the principle of Locke’s Appeal, 72 Pa. 491. If the act was an absolute and unconditional repeal of the prohibitory act for Potter county, it would, "of course, leave that territory subject to the — 649 — general laws governing the granting of licenses, and if, in addition to the repeal and in lieu of the second section, the people of the county of Potter had been allowed to vote license or no license, the case would be practically that of Locke’s Appeal, supra. It may be said that the practical result would be the same, whether the vote of the people be for repeal or against repeal, or for license or against license. This may be granted, but, in the one case, it would be reached in harmony with the constitution as interpreted by our Supreme Court, and, in the other, in direct conflict with it. The distinction between the two methods of reaching the same result is clearly stated by Mr. Justice Ag-new in Locke’s Appeal, supra : “ The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend.” The distinction is not a mere refinement, we are bound to accept it as real, otherwise Locke’s Appeal could never have been written as it now stands. If the legislature wishes to bring an act of assembly within the principle of Locke’s Appeal, it must do so in distinct and positive form and phrase. As we view the repealing act in question, it has not done so therein. The other questions in the case could be well resolved in favor of the affirmance of the decree of the court below, but the single question which we have discussed in a very general way is so fundamental and vital that we dare not depart from it, and it settles the case. We put our decision directly upon the proposition that the repealing act in question is a delegation of legislative power by the legislature to the people, and that such a delegation is in direct conflict with the first section of the second article of the constitution hereinabove quoted. Holding this, the decree of the court below must be necessarily reversed. Decree reversed.