
    Commonwealth v. Lahotsky
    
      
      William T. Kearney, for Commonwealth.
    
      Michael R. Shehadi, for appellant.
    February 11, 1949.
   Eagen, J.,

Defendant was convicted under a city ordinance (see Ordinance File No. 39, 1925) of drunkenness before the police magistrate of the City of Scranton and sentenced to pay a fine of $100. An appeal to this court followed.

The facts are admitted and that defendant was drunk upon one of our busy thoroughfares is not disputed.

However, an interesting legal point is raised which apparently must be decided in favor of appellant.

It appears that the General Assembly of the Commonwealth of Pennsylvania has also defined the crime of drunkenness and specified the penalty to be imposed therefor. See Act of March 31, 1856, P. L. 200, sec. 29, and the Act of April 20,1858, P. L. 365, sec. 22, 47 PS §§722, 723.

Where such is the case, and the penalty prescribed in a local municipal ordinance exceeds that specified in the State law, the ordinance itself is not void but the penalty may be enforced only to the extent that it does not exceed that provided for in State law. See Commonwealth v. Schaeffer, 98 Pa. Superior Ct. 265.

Hence the penalty to be imposed in this case cannot exceed the sum of $2, that being the maximum prescribed in the Pennsylvania statutes cited above.

Therefore, February 11,1949, defendant is adjudged guilty of the crime charged. The sentence of the court is that he pay the costs of prosecution and a fine of $2.  