
    Edward Stiles against John M. Jones and John Stowers.
    The city ordinance of 29th March 1799, respecting the procuring a supply of water, is valid.
    Case stated for the opinion of the court.
    It is agreed, that on the 29th March, 1799, an ordinance was passed by the citizens of Philadelphia, entitled, “ An ordinance “ for raising supplies and making appropriations for the services “and exigencies of the city for the year 1799,” (prout ordinance,) by which 12,000 dollars were appropriated for paying the interest, and towards providing a fund for the redemption of the principal, of any loan that may be raised for the more effectual supply of the city with wholesome water : 57,000 dollars were to be raised by tax.
    That the city commissioners did impose and raise a tax on the estates, real and personal, and on the professions of persons within the city of Philadelphia, including the said Edward Stiles, the plaintiff.
    That the said Edward Stiles having refused and neglected to pay the said tax, so as aforesaid regularly assessed upon him and his estates, on the 7th day of Juné 1800, a warrant issued, granted and signed by Robert Wharton, then mayor, Alexander Wilcocks, then recorder, Michael Hillegas, John Inskeep and Jonathan B. Smith, aldermen of the said city, directed to John M. Jones, one of the defendants, authorizing him to levy from the said Edward Stiles the sum of igo^o dollars, the sum assessed upon the estates of the said Edward, in South Marlborough and Upper Delaware wards in the said city, .payable by the said Edward, according to the annexed duplicate, (prout warrant and duplicate.)
    ^ -| *That the said John M. Jones did by virtue of the 49 J said warrant on the 18th June 1801, levy the said tax so as aforesaid assessed on the said Edward, on certain property belonging to the said. Edward, in Dock ward, in the said city, (prout inventory.)
    That the said property was regularly appraised and advertised. [Prout advertisement and appraisement.)
    That the said property so levied upon and seized was sold, and the overplus, after deducting the amount of the tax and charges, was tendered to the said Edward Stiles, who refused to receive the same.
    The question submitted to the consideration of the court is, whether the said ordinance is valid. If the court shall be of opinion that the said ordinance is valid, then judgment to be entered for the defendants, with costs; but if the court shall be of opinion that the said ordinance is not valid but void, and did not authorize the said proceedings, a venire facias to issue, to ascertain the damages of the plaintiff.
    Mr. Blair for the plaintiff.
    By the 1st section of the 1st article of the state constitution, it is provided, that “ the legislative powers of this commonwealth shall be vested in a general assembly, which shall consist of a senate and house of “ representatives.”
    This legislative authority cannot be delegated by the general assembly to other bodies, nor was it ever intended by'the framers of the constitution.
    The act to incorporate the city of Philadelphia, passed on the 12th March 1789. (2 St. Laws 654.)
    A supplement was passed on the 9th December 1789, (lb. 764,) and a further supplement on the 2d April 1790, (lb. 795,) by the 2d section whereof they are impowered to make ordinances for the levying of taxes, for the purposes of lighting, watching, watering, pitching, paving and cleansing of the streets, lanes and alleys of the said city, &c.
    It is obvious, that the powers intended to be granted to the corporation by the legislature, as to watering the city, must necessarily refer to the modes of obtaining a supply of water by pumps and wells, theretofore accustomed, and that the corporation were not authorized thereby to try experiments for that purpose by steam engines, at an enormous expence to the citizens.
    On the 9th March 1797, the Select and Common Councils pass an ordinance prescribing the duties of the collectors of taxes, whereby they are directed, in case goods and chattels suf*ficient to pay the taxes and charges cannot be 'found, to take the body of the delinquent and bring him before •- 493 the mayor or any alderman, who shall award a warrant of commitment against him, directed to the sheriff of the city and county of Philadelphia.
    The ordinance in question, enacted on the 29th March 1799, was made for raising the full and entire sum of 57,000 dollars by tax, agreeably to the last county assessment; and it is worthy of notice, that no appeal is allowed under this bye law.
    On the 5 th August 1799 another ordinance is enacted, whereby the further sum of 50,000 dollars is directed to be raised by the city commissioners, to be applied to the defraying the ex-pences of the works for watering the city, in addition to the former appropriations for that service.
    . It is contended that the delegated powers to the city corporation to make bye laws binding on the people is unconstitutional. In England, every charge laid on the people, unless by act of parliament, is bad by stat. 34 Ed. 1, 'de tattagio non concedendo.
    
    A bye law for the levying of money by way of tax, without granting appeals, . is unusual in legislation and oppressive. Though it may be said, that the money to be collected under the ordinance of 27th March 1799 is to be laid agreeably to the last county assessment, concerning which an appeal was given by law, yet many cases would probably occur wherein individuals would not deem it an object tó appeal against their county rates. When however large additional sums were to be raised, grounded on that assessment, they would feel it to be their duty to institute appeals.
    But a fatal objection presents- itself to this ordinance. Delinquents may be committed to gaol for non payment of their taxes. A bye law on pain of imprisonment is against magna charta. 2 Co. 54. 5 Co. 64, a. Imprisonment or forfeiture of goods cannot be inflicted as penalties of bye laws. Skin. 384. They must be pecuniary and not corporal, unless there be a custom to warrant it. 1 Salk. 349. 12 Mod. 686. It has ever been held, that a bye law to levy fines by distress and sale of goods is bad. 3 Lev. 281-. S. C. 2 Vent. 183. And a bye law being entire, if it be unreasonable in any particular, it shall be void in' the whole. 1 Com. Dig. 615. If a grievance may possibly happen under it, the law is nullified thereby. Comb. 373. A bye law is like a custom, which being entire also, if void in part is bad for the whole. Hob. 189. If an ordinance be unreasonable, it will be condemned. Hutt. 6. The power of making bye laws is to be taken strictly, and shall not be carried beyond the intention of the charter. 2 Wms. 209.
    *Mr. for the defendants.
    The first objection # -| 4°4J made against the ordinance goes to a total denial of all the powers of the corporation to make bye laws. The first article of the constitution refers to the legislative authority of the general assembly to enact laws binding on the whole state, not to those binding on a city or borough, in subservience to and not inconsistent with the general system. But this point having been already solemnly determined on the ordinance respecting wooden buildings within the city, I consider that question fully at rest.
    The powers of the city corporation are derived from the legislative acts of the government. The act of incorporation of 1789 in § 16, gives them full power and authority to make such ordinances as shall be necessary or convenient for the government and welfare of the city; and by § 44 directs, that all doubts in courts and elsewhere shall be taken most favourably for the corporation.
    The second supplementary act of 1790, in the preamble and § 2, likewise fully authorizes them to assess and levy taxes for - lighting, watching, watering, pitching, paving and cleansing the streets of the city.
    The corporation are not restricted as to the sums which they may thus raise. The dispute is only about the application of the money. But it is evident they must judge what the peculiar interests and convenience of the city may demand. It is for this precise purpose that corporate bodies are instituted.
    It will not be denied, that the purity and wholesomeness of water, is necessary and convenient to the citizens, from a variety of considerations. Good water conduces greatly to their health, and we have experienced in the late fires, the great utility of the hydrants. Great powers are included' under the expressions of watering the city ; and it is wholly left to the corporation to fix on the -mode of obtaining water. They are not confined to pumps and wells. Improvements daily arise, which may be applied with great utility in large cities. No restrictions either express or implied, exist, either as to quantity, mode or expence, in the supply of water. The preamble of the law of 1790 is very full, as to their discretionary powers for the advancement of the public health; and every citizen must bear his proportion of the public burthens.
    
      Cited in 84 Pa. 503; 4 W. N. C. 395, where the court affirms the decision and says that to disturb it would produce an amount of distress and ruin painful to contemplate.
    Under the 3d section of the act of 17th April 1795, 3 St. Laws 746, the county taxes are to be paid by the owners of property, and the 6th section secures to every person the benefit of an appeal.
    But it has been objected, that as imprisonment for non-payment of taxes may be the consequence of this ordinance, r* c it is therefore bad. This will admit of two satisfactory *- answers.
    Under the act of 18th February 1769, St. Laws 508, commissioners were appointed for paving and cleansing the streets, who might lay taxes for that purpose, and by § 15, the collectors, in case effects could not be found sufficient to answer the arrears of taxes and charges, were impowered to imprison, the party delinquent, under a special warrant of four or more of the said commissioners. By a subsequent act of the 14th March 1777, the powers of the city corporation under the above law of 1769, were transferred to the justices of the peace, the corporation being dissolved in consequence of the revolution; but by §35 and 36 of the act of incorporation, all the duties and powers of the city wardens and street commissioners were transferred to the corporation. 2 St. Laws 667. And this appears most fully by the supplementary act of 2d April 1790, § 1, 2 St. Laws 795. It is admitted then, that the general rule as to bye laws is, that their penalties must be levied by distress and sale of goods, or recovered in actions of debt; but according to' 1 Salk. 349, and 12 Mod.'686, the penalties may by custom be corporal. Legislative acts are certainly equal in their operation to any custom, and so were resolved to be, in the former case cited, concerning the wooden buildings.
    But moreover, notwithstanding the assertion in 1 Com. Dig. 615, a bye law may be good in part and void for the rest. 1 Stra. 469. Say. 256. Kyd’s Law of Corpora. 155. The objection has been made to the ordinance of 29th March 1799, but if well founded, it is only referable to that of 9th March 1797. And the powers thereby given to the collectors to seize and sell, may be good, though their right to imprison was even questionable.
   The court were unanimously of opinion, that the ordinance of 29th March 1799, was a valid one.

Judgment for the defendants.  