MOORE’S RURAL NEW-YORKER: AN AGRICULTURAL AND FAMILY JOURNAL. 
IMPORTANT LEGAL DECISION. 
From PennBylvania State Reports of cases Adjudg¬ 
ed in the Supreme Court, Sept. Term, 1847.— 
Barr, VoL VI. Page ."iO?—DSO. 
Hon. 
John Bannister Girson, 
Justice Presiding. 
Chief 
PARKEfi vs. COMMONWEALTH. 
Under the Constitution of Pennsylvania, legislative 
power must be exercised by the legislature crea¬ 
ted by that constitution. Hence the act of 1846, 
giving the citizens of certain counties the power 
to decide by a vote whether the sale of vinous 
and spiritous liquors shall be continued within 
such counties, and imposing a penalty for the 
sale of such liquors, where a majority of the 
votes had been against such sale, is unconstitn 
tional and void. 
In error from the Quarter Sessions of 
Allegliany county 
Oct. 11. The second countin this indict¬ 
ment, on which alone the cause was tried, 
averred that the defendant in the year 1847, 
within the fourth ward of Pittsburgh, (in 
which ward there had been given a major¬ 
ity of votes “ against the sale of liquors,”) 
sold rum, &c., without having first obtain¬ 
ed a license for tl\at purpose. The plea 
was, not guilty. The paper book then set 
forth the admissions by the parties that de¬ 
fendant, residing in said ward, had sold spir¬ 
ituous liquors in 1847; and that in said 
ward an election was held according to the 
act of April 7, 1846, authorizing a decision 
by the citizens, by ballot, whether the sale 
of such liquors should be continued in said 
counties, and a majority of votes was given 
against the sale of liquors; and that defend¬ 
ant had not obtained a license from the 
Quarter Sessions as a storekeeper or apoth¬ 
ecary to sell vinous and spirituous liquors 
for medicinal and sacramental purposes, 
and to be used in the arts. It was also ad¬ 
mitted that defendant had taken out a li¬ 
cense from the treasurer of the city of Pitts¬ 
burgh, for vending foreign merchandise 
and liquors, agreeably to the act of 7th 
April, 1830, which licen.se was taken out in 
1847, and had not expired at the time of 
the alleged sale. 
The only points are, whether the act of 
7th April, 1846, applied to the wards of 
Pittsburgh; and if so, whether it was con¬ 
stitutional ; and these the court below ruled 
again.st the defendant 
****** 
But the main question goes to the root of 
the matter; and it is, whether the legisla¬ 
ture can ordain a new, or different legisla¬ 
tive power from that provided by the con¬ 
stitution. That must consist of a Senate 
and House of Representatives,* and they 
have no jight to create this imperium in 
imperio. 
****** 
Nov. 8. Bell, J.—The defendant below, 
plaintiff in error, having been convicted up¬ 
on an indictment, framed under the act of 
7 th of April, 1846, entitled “An act au¬ 
thorising the citizens of certain counties to 
decide by ballot whether the sale of vinous 
and spirituous liquors shall be continued in 
said counties,” the point is raised in this 
court whether the act is in truth, a law of 
binding force. 
It is to be regretted that this very grave 
constitutional inquiry, as it is presented to 
us, is interwoven with a ({uestion of public 
morals which has stirred the hearts and 
occupied the minds of the American peo¬ 
ple, with such intensity of feeling, as to 
maLv. to consider any proposition, 
acciaeiiuilly connected with it, in ref¬ 
erence to its abstract merits alone. In ap¬ 
proaching the discussion of such a proposi¬ 
tion, the mind is almost involuntarily drawn 
to contemplate the amelioration which ac- j 
tive philanthropy has, within a few years, 
effected in the social habits of our widely 
spread community; and the inquirer is 
tempted to shrink from the discharge of a 
task imposed by the deepest sense of duty, 
lest the result of his investigations might, 
even incidentally, check the growth of pri¬ 
vate and public improvement. But though 
the point presented for decision is highly 
the constitutional action of the legislative 
body; but which is largely increased by 
the character and possible results of the 
present investigation. 
Unlike that of the United States, the 
government of Pennsylvania is not one of 
enumerated powers. Still it is a govern¬ 
ment of limited authority; and it is, there¬ 
fore not to be denied that the action of its 
legislature may be invalid, though it contra¬ 
vene no express provision of the constitu¬ 
tion, if it be in violation of the spirit of 
that instrument, and the genius of the public 
institutions designed to be created by it.— 
Indeed, it is this species of insiduous infrac¬ 
tion that is more to be feared and guarded 
against than direct attacks upon any par¬ 
ticular principle proclaimed as a part of the 
primordial law: for attempts of the latter 
description will generally be met by instant 
reprobation, white the stealthy and frequent¬ 
ly seductive character of the former is apt 
to escape detection, until the innovation is 
made manifest by the infliction of some 
startling wrong. Putting out of view, as 
far as possible, the particular object of the 
act which gives rise to the controversy, lest 
we be misled by the meritorious nature of 
its aim; and addressing ourselves to the 
reasoning which must be equally applicable 
to all similar instances of legislative action, 
we will enquire whether there has been 
such an encroachment upon the constitu¬ 
tion of the State, and tlie admirable politi¬ 
cal system created by it, as calls for the in¬ 
terposition of this court In doing so, we 
are necessarily led into an examination of 
the structure of our systems of civil polity 
and government; and the aim and object 
of the eminent men who were charged with 
the important task of giving them a visible 
and distinctive shape. 
The earliest pages of our colonial histo¬ 
ry show, that from the beginning, the prin¬ 
ciples of civil and political liberty were un¬ 
derstood and practised by those who plant¬ 
ed the germ of civilized society in this coun¬ 
try. It is true, that acknowledging allegi¬ 
ance to a monarch, and subservience to a 
foreign parliament, to which they conceded 
the jura summi - imperii, the supreme and 
absolute autlmrity, which as it is said, must 
reside somewhere in every State, they did 
not formally claim as true, the axiom that 
all power emanates from the people. But 
practically, for all the purposes of internal 
rule, this principle was to a great extent 
acted upon. The form of government in 
the several colonies very soon resolved itself 
into the system of legislation by agents se¬ 
lected by the people, to whom a liberal 
right of suffrage was accorded; and thus 
our early political institution, almost every¬ 
where, assumed the resemblance of a rep¬ 
resentative democracy. The-American rev¬ 
olution introduced a new feature into the 
science of government, before speculated 
upon by theorists, but then, for the first time, 
formally announced as constituting an im¬ 
portant element in the political constitution 
of a nation. It is, in the language of our 
own bill of rights, in this respect, but an 
echo of prior-declarations, that “ all power 
is inherent in the people, and all free gov- 
ernmeirts are founded on their authority, 
and instituted for their peace, safety, and 
happiness.” But though it was thus pro¬ 
claimed that the sovereign power rested in 
the body of the people, and that the only 
legitimate end of government is the promo¬ 
tion of their welfare, the utter impractica¬ 
bility of a personal and immediate exercise 
of tliis power by them, in the administra¬ 
tion of the affairs of government, forbade 
the idea of a pure democracy. If such a 
form of civil rule can exist in a civilized 
community, it must be, as is well observed 
by an acute writer on this subject, when the 
limits of a State are so confined, that the 
people can assemble as often as may be 
requisite for the administration of the pub¬ 
lic concerns from every part of the State; 
but such a State must have too small a pop¬ 
ulation to protect itself against the hostile 
designs and attacks of powerful or ambi¬ 
tious neighbors, or too small a territory to 
support the number of its inhabitants:— 
either of which circumstances must contin¬ 
ually endanger its safety and independence. 
Our widely-extended country and numerous 
population concurred, even in the early 
IS ^ 
important, considered simply in its connec¬ 
tion with the subject I liave alluded to, it i days of the republic, to put this simple 
..e infinitely greater magnitude j form of administration out of the question. 
But had these reasons been wanting, other 
important objections would have interposed 
to prohibit the immediate exercise of ad¬ 
ministrative authority by the mass of the 
community acting directly on the subject. 
Among these may be mentioned the neces- 
becomes of 
when it is regarded as a (jiiestion in" politi¬ 
cal philosophy, springing from the peculiari¬ 
ties of our modes of government. In this 
a.spect, it is intimately associated with the 
practical operation upon society of the writ¬ 
ten constitution, nofonly of this Common¬ 
wealth, but of every other State of the 
confederacy. Reaching far beyond any 
single subject of legislation it embraces the ' ment of collision, and often by unreasoning- 
whole range of topics that may fall under' ' ’ ’ " ’ ‘ ' 
legislativi! cognizance, and, as it may be 
decided, restrains or immeasurably enlarges 
the manner in which the legislative power 
may be exercised. Such is the nature and 
scope of the subject to which our attention 
In discussing the proposed schemes of 
government, these objections had not escap¬ 
ed the public attention, of which the pub¬ 
lic debates of that day give ample evidence. 
In proof of this, it may be sufficient to quote 
from Mr. Madison, whose enlightened pre¬ 
dilection for popular institutions will not be 
questioned. In the course of the debate 
on the federal constitution, in the Virginia 
convention, he remarked, “ that turbulence, 
violence, and abuse of power by the major¬ 
ity trampling upon the rights of the minor¬ 
ity, have produced factions and commo¬ 
tions, and these, in republics, and more fre¬ 
quently than any other cause, have produ¬ 
ced despotism.” And again, he observed, 
“ If we go into the whole history of ancient 
and modern republics, we shall find their 
destruction to have generally resulted from 
these causes, If we consider the peculiar 
situation of the United States, and go to 
the sources of that diversity of sentiment 
which pervades its inhabitants, we shall 
find great danger to fear that the same 
causes here would result in the same fatal 
effects which they produced in those re¬ 
publics.” 
This was but an expression of the pre¬ 
vailing sentiment. In accordance witli it, 
through all the written constitutions framed 
by the several states of the confederacy 
acknowledged the sovereignty to reside in 
the mass of the people, its exercise by them 
was, either expressly or by necessary impli¬ 
cation, confined to the establishment of the 
constitution, the amendment of its defects, 
the correction of the abuses of government, 
and the choice of public servants. In the 
country from whence we derive our lan¬ 
guage and the great body of our law, the 
supreme power is conceded to be vested in 
the Parliament. There sovereignty and leg¬ 
islation are said to be convertible terms: 
and it is asserted, one cannot exist without 
the other. But with us, the introduction of 
written compacts, framed by the people 
themselves, has established a marked dis¬ 
tinction between the definite and unlimited 
power of the community, considered as a 
whole, and the definite and limited power 
of the legislature. 
By these compacts, so much of the sov¬ 
ereign authority as is necessary for the ma¬ 
king of laws, is delegated to the selected 
agents of the mass; but it must be exer¬ 
cised in the mode and manner pointed out 
by the compact itself. This observance is 
essential to the very existence of the con¬ 
stitution of a State; for that is the instru ■ 
ment by which the administrative authority 
is created, its powers defined, and their ex¬ 
tent limited, the duties of the public func- 
tionares prescribed, and the principles ac¬ 
cording to which the government is to be 
administered, delineated. And in the lan¬ 
guage of Judge Patterson, truthful as elo¬ 
quent, 2 Dali. 308, “ It is the form of gov- 
erment delineated "by the mighty hand of 
the people, in which certain first principles 
or fundamental laws are established. The 
constitution is certain and fixed; it contains 
the permanent will of the people, and is the 
supreme law of the land; it is paramount 
to the power of the legislature, and can be 
revoked or altered only by the authority 
that made it. The life-giving principle and 
the death-doing stroke must proceed from 
the same hands.” Until altered or destroy¬ 
ed by this authority, it is obligatory on the 
people themselves; and legislatures, which 
are merely its creatures, must conform to 
it, or their acts will be void. Everything 
done in contravention of its principals is an 
act- of usurpation, which, uncorrected, tends 
directly to its overthrow. 
Mindful of the ancient institutions of the 
country, and following the example set by 
the Federal Constitution, the people of 
Pennsylvania, when ordaining and estab¬ 
lishing a fundamental law for the govern¬ 
ment of the Commonwealth, decreed that 
the legislative power shall be vested in a 
General Assembly, to consist of a Senate 
and House of Representatives, to be elect¬ 
ed at stated periods by the citizens of the 
respective counties. They thus solemnly and 
emphatically divested themselves of all right, 
directly, to make or declare the law, or to in¬ 
terfere with the ordinary legislation of the 
State, otherwise than in the manner pointed 
out in art. ix., sect 20, which declares “ the 
citizens have a right, in a peaceable manner 
to assemble together for their common good, 
and to apply to those invested with the 
power of government for redress of griev¬ 
ances or other purposes, by petition, ad¬ 
dress or remonstrance.” This provision, 
which found a place in the constitution of 
1790, Is reiterated and re-established by the 
has been invoked. Regarding it as perhaps 
the most important ever presented for ad¬ 
judication here, involving juinciples that 
address themselves with groat urgency to 
the interests of every member of society, 
we have considered it under a lively sense 
of the responsibility, which even in ordina¬ 
ry instances, attaches upon an inquiry into 
sarily uncertain and fluctuating character of j amended constitution of 1835, adopted by 
popular decisions, induced by the excite -1 a vote of the whole people: thus conclu- 
ment of collision, and often by unreasoning solely showing that the experience of near¬ 
passion and prejudice; the violent commo- ly half a century had worked no change in 
tions to which popular assemblies are con- the sentiment which lodged the legislative 
stantly exposed, especially when acting un- authority of the Commonwealth in selected 
der the influence of party zeal, inflamed by and responsible bodies of men, liable to the 
the seductions of factious eloquence and j animadversion of their constituents, as the 
artful sophistr}' ; the difficulty, it not impos- ! only safe depository of this portion of the 
sibility, of deliberation and consultation, 
and above all, the imminent danger that, in 
the absence of a sense of responsibility, the 
surest guaranty of social justice, the rights 
of the minority would be disregarded by a 
majority seeking only the gratification of its 
own desires, or the advancement of its pe¬ 
culiar opinions. 
sovereign power. Desiring to interfere no 
further with the regulated action of these 
bodies than in the mode thus expressly re-, 
served,- by the right of selecting the dele¬ 
gates composing them, and through the in¬ 
fluence which inevitably flows from enlight¬ 
ened public opinion, deliberately and tem¬ 
perately expressed, the people sought to 
guard against an abuse of the high power 
they had delegated, by providing a specific 
mode of election of members of the Senate 
and House of Representatives; by prescri¬ 
bing their qualifications, by stipulating the 
separate and independent action of the two 
chambers; by an appeal to the conscience 
in the oath or affirmation exacted from each 
member to support the constitution of the 
Commonwealth, and to perform the duties 
of his office with fidelity; and by conferring 
on the executive magistrate the prerogative 
of the veto, designed for the correction of 
hasty and inconsiderate legislation. The 
system so established is a system of cliecks 
and balances seeking safety in the declared 
responsibity of the individual agent, and 
the guardian watchfulness of the co-ordi¬ 
nate branches. 
The sedulous care exerted by those who 
devised it, to hedge it round with defences 
against the attacks of popular delusion and 
error frbm without, and to guard it against 
faithlessness and corruption from within, is 
visibii in almost every line of the instru¬ 
ment that delineates it. 
The authority conferred is, in its execu¬ 
tion, of the greatest difficulty and delicacy, 
reipiiring, frequently, in its use, th’e nicest 
discrimination of cultivated and disciplined 
intellect; and as its active influence upon 
the interests of the community, for weal or 
for wo, cannot be resisted, it has been wise¬ 
ly lodged where experience taught it could 
be most safely and conveniently exerted- 
lo exercise the power of making laws 
delegated to the General Assembly, is not 
so much the privilege of that body as it is 
its duty, whenever the good of community 
calls for legislative action. No man is 
bound, under the constitution to accept the 
office of a legislator; but he who does ac¬ 
cept, cannot, rightfully avoid the obligations 
it imposes, or evade the constitutional res¬ 
ponsibilities incident to it. As has been 
well remarked, the constituent is entitled to 
not only the industry and fidelity of his 
representative, but to his judgment also, in 
all that relates to the business of public 
legislation. Among the primal axioms of 
jurisprudence, political and municipal, is to 
be found the principle, that an agent, un¬ 
less expressly empowered, cannot transfer 
his delegated authority to another, more 
especially when it rests in a confidence, par¬ 
taking the nature of a trust, and requiring 
for its due discharge, understanding, knowl¬ 
edge, and rectitude. The maxim is, delega- 
ta potestas non potest deleyari. And what 
shall be said to be a higher trust based 
upon a broader confidence, than the pos¬ 
session of the legislative function? What 
task can be imposed on a man, as a mem¬ 
ber of society, requiring a deeper knowl¬ 
edge and a purer honesty ? It is a duty 
which cannot therefore, be transferred by 
the representative; no, not even to the peo¬ 
ple themselves; for they have forbidden it 
by the expression of their will that the leg¬ 
islative power shall be vested in the Gen. 
Assembly; much less can it be relinquished 
to a portion of the people, who cannot even 
claim to be the exclusive depositories of 
that part of the sovereignty retained by the 
whole community. An attempt to do so 
would be not only to disregard the consti¬ 
tutional inhibition, but tend directly to im¬ 
press upon the body of the State those so¬ 
cial diseases that have always resulted in 
the death of republics, and to a,void which 
the scheme of a representative democracy 
was devised, and is to be fostered. Athens 
once possessed a government in a measure 
representative, but the decrees of its Sen¬ 
ate were subject to the supervision of the 
popular assemblies of the citizens, who, by 
progressive innovations, entirely changed 
the nature of the constitution, and intro¬ 
duced corruption, anarchy, and final destruc¬ 
tion. The people of this Commonwealth, j 
I repeat, have reserved to them.selves the 
right to alter or abolish and reconstruct the 
political fabric, and may thus assume, if 
they please, the direct control of ordinary 
legislation. But in the present advanced 
condition of political science, and recurring 
to the experience of the past, it is not to be 
presumed they will ever do so. Yet were 
this otherwise, it is not for their servants to 
anticipate the expression of such a will. — 
The great question in this cause is—did the 
legislature of 1846 fall into this error?— 
The proper solution of this cpiestion will 
be best determined by an inquiry into the 
nature of municipal laws, and ascertaining 
how far the Act of A&sembly under review 
squares with the definition of such laws. 
Municipal law is declared to be a rule of 
civil conduct prescribed by the legislative 
power, which in England is called supreme, 
commanding what is right, and prohibiting 
what is wrong. “ It is called a rule,” says 
the great English commentator, “ to distin¬ 
guish it from advice or counsel, which we 
are at liberty to follow, or not, as we see 
proper, and to judge upon the reasonable¬ 
ness or unreasonableness of the thing ad¬ 
vised; whereas our obedience to the law 
depends not upon our approbation, but upon 
the maker’s will; counsel is only matter of 
persuasion—law is matter of injunction; 
counsel acts onlj^ on the willing, but law 
upon the unwilling also.” This definition 
of a law is as strictly correct, applied under 
our institutions, as it is in Great Britain, 
with the single modification that here the 
maker’s will is subordinate to constitutional ^ 
injunction. < 
From a veiy early period in the liistory 
of Pennsylvania, laws have been enacted 
directing public houses of entertainment to ' 
be licensed, with the privilege of retailing ^ 
spirituous liquors and other intoxicating ' 
drinks. These were modified from time \ 
to time, until by the act of 11th March, ) 
1834, which supplied and repealed previous I 
enactments on the same subject, the seve- 
ral Courts of Quarter Sessions and Mayor’s ■ 
Courts within the Commonwealth were ^ 
empowered to grant licenses for taverns or < 
inns, to persons applying for the same, under • 
certain regulations and restrictions; and 
the supplemental act of 2l8t March, 1841, 
made provision for the punishment of any 
person convicted of retailing vinous or spir¬ 
ituous liquors, by less measures than one ? 
quart at at a time. The act of 7th April, 
1830, directs that every person who shall 
deal in the selling of any goods, wares, and 
merchandise, wines or distilled liquors of a 
foreign growth or manufacture, except such 
as are sold by licensed auctioneers, and by 
licensed tavern keepers, shall take out a li¬ 
cense for vending such foreign merchan¬ 
dise or liquors, from the treasurer of the <’ 
proper city or county. Then comes the ^ 
act of 1846, which gives rise to the present ' 
controversy. It provide.s, in substance, that 
it shall be lawful for the citizens of the sev¬ 
eral boroughs, wards, and townships, in cer¬ 
tain counties named, including the county ' 
of Alleghany, at the annual election of con- \ 
stables and other borough and township of¬ 
ficers, to decide by their votes, whether or ^ 
not the' sale of vinous and spirituous li(;[uors j,! 
sho’d be permitted among them the ensuing | 
year; that whenever, in any of the said 
boroughs, wards, or town.ships, there shall ^ 
be a majority of votes “ against the sale of 
liquors,” the Court of Quarter Sessions ( 
shall not, for the ensuing year, grant li¬ 
cense to any inn or tavern, nor the treas¬ 
urer of the county issue a license to any 
retailer of merchandise for the sale of any 
vinous or spirituous liquors within said bor¬ 
oughs, wards and townships, for said year; 
that, if any person in said boroughs, wards, 
and township.s, should, within one year, sell 
and deliver, or cause to be sold and deliv¬ 
ered, any vinous or spirituous liquors to any 
person, except as provided in the acts, such } 
person so selling shall be liable to be in- - 
dieted, and on conviction forfeit and pay 
not less than twenty, nor more than one 
hundred dollars; but if any of the bor- ^ 
oughs, wards, and townships, in the said ' 
county, shall by a majority of votes decide ( 
“ for a sale of liqij|^-s,” then the laws in 
force regulating the business of inns and 
taverns, and retailers of foreign goods and 
merchandise, including liquors, shall re¬ 
main in force as if the act had not been 
passed. 
From this summary of its featunis, it 
will be perceived this act of the General 
Assembly, whether considered as an enact¬ 
ment of new and substantive provisions, or 
as a statute of repeal, abrogating existing 
laws, depends for its validity and binding 
efficacy within the several counties named 
in it, upon the popular vote of designated 
districts. Without this affirmatively ex¬ 
pressed, ’it is inert. Possessing no innate 
force, it remains a dead letter, until breath¬ 
ed upon by the people and called into ac¬ 
tivity by an exertion of thdr voice in their 
primary assemblies. Until then it prohib¬ 
its no act, creates no offence, points out no 
mode of trial, fixes no penalty, and, when 
so bidden into life, its existence as a rule of 
action, is limited to the brief period of 
a single year, unless new energy Be 
again infused into it through the medium 
of the ballot-box. If a majority with¬ 
in the ])articular district, should vote nega- ^ 
tively upon the question, yearly to be sub¬ 
mitted to tiie people, the act, as a statute, 
has no existence. It is not to be deemed a 
law within the district where such a vote 
is cast. If a majority of votes be ciist in 
the affirmative, then the act is to take ef¬ 
fect as a statute, establishing a new rule 
and repealing the old. It operates not pro- h 
pria viyore, but, if at all, only by virtue of | 
a mandate expressed sub.sequently to its en- ' I 
actment, in pursuance of an invitation given I 
by the legislative boffies. As it left the j 
halls of legislation, it was imperfect and un¬ 
finished, for it lacked the qualities of com- }: 
mand and prohibition absolutely essential j 
.to every law. We have seen there can be j 
no such thing as a law, unless it be manda- ] 
tory and obligatory upon those who are to 
be the subjects of it, by a declaration of .• 
the legislative will. From whence does the act i 
of 1846 derive this mandatory and obliga- . 
tory character? Not from the Legislature, 
for in the day of its enactment it possessed 
it not If it has that character at all, it j 
must have been conferred by tlie fiat ? 
of a portion of the people expressed ) 
through their votes. But the popular de¬ 
cree can only have worked tliis effect, be¬ 
cause the citizens voting were, in some way, v 
clothed with the power of ordinary legisla- 5 
tion. Now it cannot be pretended they 
ptissessed this power, unless they drew it 
from the invitation to declare their will by 
an exercise of the elective franchise. If ^ 
so, what is this other than a delegation of ' 
the legislative franchise by an act of the y 
General Assembly? Bu^ as has been ^ 
