The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1897-10-23

In response to Mayor Bailey's letter
to City Solicitor Mckinley inquiring as
to the "Constitutionality and binding
force of the act of assembly gov rning
the licensing of transient merchants in
municipalities, and also concerning the
ordinance framed thereon which pro-
VdeS for q $500 license for merchants
of this class in the city of Scranton
the city solicitor yesterday gave the
following opinion to the mayor:
Scranton, Pa, oct. 81, 1897.
Hon. James G. Bailey mayor, Scranton,
Pa.
Dear Sir-Tn answer to your note of
this date requesting an opinion on the
Constitutionality of the act of assembly
on May 4, 1889, amended May 10, 1898,
providing for the licensing of transient
retail merchants, and also the validity of
the ordinance enacted by councils April
%, 1891, in accordance with said act,
would say:
The act of assembly provides. "That
hereafter. every person, whether prinCi-
pal or agent not engaged in permanent
business i'm any city, borough or town
ship of this commonwealth, but enter
ing into, beginning or desiring to begin
transient retail business, in such city,
borough or township, for the sale of any
goods, wares or merchandise whatsoever,
whether the same shall be represented or
held forth to be bankrupt assignees, or
about to quit business or of goods dam
aged by fire, water or otherwise, or by
any attractive or conspicuous advertise
mcnt whatsoever, shall take out license
for the same from the proper authorities
of the said city, borough or township.
AMOUNT OF LICENSE.
The amount of such license in any city
or borough shall be fixed by ordinance,
and the amount of such license in any
township shall be fixed by the county
treasurer, and to be paid into the school
fund of such township, to be used for
school purposes, which license shall not
be less than twenty-five dollars, nor eX-
cced the sum of one thousand dollars
per month"; said license to be renewed
monthly during the continuance of said
sales, and upon failure of said person or
persons SO to secure license he or they
shall be fined in a sum not less than
one hundred dollars" etc. The ordinance
declares, THE amount of the license is
hereby fixed at five hundred dollars per
month, and said license to be renewed
monthly during the continuance of said
sale"
The foregoing statute has never been
passed upon by the appellate courts, but
such lower courts as have had occasion
to construe the enactment have held it
founded tbarnon void for ;bo FoIIou,-
ing reasons.
l. There is no Limitation IN tho or,o,,,,4
of ponaItv that may he imnoeod FOR ,ios
lation of tbo act excent offondors ,,,o,,
NOT he fined in n sum .Iase tbon ono
hundred dollars" " While the 1iccnga nav
not exceed one tbousand dollars nor
month, the penalty for transpressinr- may
be so large as 10 bo oct,,oI connsootiay,
Of an nossessione TO +ho a. 20 1,,,,
hundred dollars may he imnosad ca NAV,
one of one hundred thousand Tho lnrrie-
lative omission TO nrescribe = Iimitafiop
of the penalty for transpression of its
law makes IL void.
.. Inc act is in violation of tho hill Of
rights in that IT derives a man of his
proDerty arhitrari1v not b,, tbo i,,I,,,o,+
of his neers or tho law of tbo IonG Az
the penalty imposed is for tho use of tbo
city, the statute can ba rsed to trapefo,
all the pronertv Of tho offordor 70 a.
municipality. Such a nrovisio, ie In ,,1oin
violation of the cons,,...on Of the state
@'''0'
CONSTITUTIONAL RIGHTS.
8. The constitution procIaims that "aII
men have certain Inherent and indefeae-
able rights. among which are those of
acquiring, possessing and protecting nron-
erty and reputation. The peonIe
shall be secure in their persons. houses
papers and possessions from unroasor.
abe searches and seizures Nor
can he be deprived of his life. liberty or
property unless by the Judgment of his
peers or the law of the land
Excessive bail should NOT bo rao,,irad
nor excessive fines imposed, nor cruel
punishment inflicted" There is scarcely
one or these provisions that is not vio-