Fisher v. Harrisburg

The opinion of the court was delivered July 24, 1854, by Lowrie, J. — This cause has been prepared with a degree of care and skill, that indicates the professional zeal of the counsel, rather than the magnitude of the cause and the importance of the principles involved in it. We have not, however, been convinced that there is any error in the ease. A municipal corporation has power to make sewers, without any special authority given with that view, and having made them, it may, by general rules, independent of its general taxing power, regulate the use of them and the price at which any private person may tap them, and protect them by proper penalties, against invasion or injury. We cannot say that the price at which private individuals may tap these sewers is unreasonable, and we have no right to say it; and the borough is not prevented from regulating the sewerage in this way, by the fact that for several years private individuals were allowed to tap them without charge. If we had a right to say that the penalty for this offence is unreasonable, we cannot say that we would do so, especially when the defendant knew, that by the payment of $10, in accordance with the ordinance, he would have avoided the penalty. Where the municipal legislature has authority to act, it must be governed, not by our, but by its own discretion; and we shall not be hasty in convicting them of being unreasonable in the exercise of it. It is very common for penal statutes to leave a margin to the discretion of the magistrate, so that the fine imposed may be graded in some proportion to the aggravation of the circumstances, and this is not improper. In this case, it enabled the jury to testify generously of the defendant, by imposing the minimum penalty. We have discovered no error. Judgment affirmed.