Commonwealth v. Rose.

"An ordinance authorizing the licensing of transient retail merchants of the City of Wilkes-Barre, fixing the license fee, and providing a penalty for failure to obtain same.

"Section 1. Be it ordained by the City Council of the City of Wilkes-Barre, and it is hereby ordained by the authority of the same: That hereafter every person, whether principal or agent, entering into, beginning or desiring to begin a transient retail business in the City of Wilkes-Barre for the sale of any goods, wares or merchandise whatsoever, whether the same shall be represented or held forth to be bankrupt, assignee or about to quit business, or of goods damaged by fire, water or otherwise, shall take out a license for the same at the office of the city treasurer.

"Section 2. The amount of said license fee shall be $100 per month, payable to the city treasurer, and shall entitle the person obtaining the same to continue business for a period of one month or any fractional part thereof.

"Section 3. Said license shall be received monthly during the continuance of said sale, and upon failure of any person or persons so to secure such license or renew the same monthly during the continuance of said business, he, she or they shall be fined in a sum not less than $100 nor more than $200, to be collected as other fines are by law collectible, and in default of payment of said fines, to be imprisoned in the jail of Luzerne County for a period not exceeding thirty days.

"Section 4. All ordinances or parts of ordinances in conflict herewith are hereby repealed."

Defendant contends that the passage of the ordinance by the city was in exercise of its police power, and in such action the city was controlled and regulated by the following clause of the Act of May 27, 1919, § 18, P. L. 310: "46. To make all such ordinances, by-laws, rules and regulations, not inconsistent with or restrained by the Constitution and laws of this Commonwealth, as may be expedient or necessary for the proper management, care and control of the city and its finances, and the maintenance of the peace, good government, safety and welfare of the city and its trade, commerce, manufactures, and the exercise of full and complete powers for local selfgovernment in matters of police; and the same to alter, modify and repeal at pleasure; and to enforce all ordinances by inflicting penalties upon inhabitants or other persons for violations thereof, not exceeding $100 for any one offence, recoverable with costs, together with judgment or imprisonment not exceeding ninety days, if the amount of said judgment and costs shall not be paid" from which it will appear that the fine provided in the ordinance exceeds the limitation fixed by this act of assembly.

The city contends that the power to enact the ordinance in question is not dependent upon the act of assembly above quoted, but is predicated upon authority given by the Act of May 2, 1899, P. L. 159, as follows: "Section 1. That hereafter every person, whether principal or agent, entering into, beginning or desiring to begin a transient retail business in any city, borough or township of this Commonwealth 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 damaged by fire, water or otherwise, shall take out a license for the same from the proper authorities of the said city, borough or township. The amount of such license in any city or borough shall be fixed by ordinance, duly passed by the council of such city or borough, and shall not be less than $25, nor exceed the sum of $200 per month or fractional part thereof, to be paid to the treasurer of said city or borough; and the amount of such license in any township shall be the

Commonwealth v. Rose.

sum of $25 per month or fractional part thereof, to be paid to the county treasurer for the use of the school fund of said township. Said license to be renewed monthly during the continuance of said sale, and upon failure of said person or persons so to secure such license, he, she or they shall be fined in a sum not less than $100, nor more than $200, to be collected as other fines are by law collectible, and in default of payment of said fines, to be imprisoned in the jail of said city or county for a period not exceeding thirty days.”

And this act of assembly is not, either directly or by implication, repealed by the Act of 1919, and in this we agree with plaintiff's counsel, for from the very words of the Act of June 27, 1913, art. v, § 3, P. L. 568, to which the Act of May 27, 1919, § 18, P. L. 310, is an amendment, which reads as follows: "Every city of the third class, in its corporate capacity, is authorized and empowered to enact ordinances for the following purposes, in addition to the other powers granted by this and other acts"-it is apparent it was not intended to limit and control the corporate powers of the city thereby, excepting only upon matters therein dealt with, and nowhere in the Act of 1919, or the acts to which it is a supplement, are we able to find the power or authority of cities of the third class to license transient retail merchants defined or considered.

But upon close scrutiny of the Act of May 2, 1899, P. L. 159, we cannot find any authority therein conferred upon cities to fix by ordinance the amount of fine or penalty for violation of ordinances.

As we construe the act, we find the effect thereof to be well expressed in its title, viz., "To provide for the licensing of transient retail merchants in cities, boroughs and townships, and providing penalty for failure to obtain the same," and that the amount of the license so acquired in any city shall be fixed by ordinance, and that the penalty for the violation of the law, requiring the license in the amount fixed by the ordinance, is fixed by the law itself, as follows: "Said license to be renewed monthly during the continuance of said sale, and upon the failure of such person or persons so to secure such license, he, she or they shall be fined in a sum of not less than $100, nor more than $200, to be collected as other fines are by law collectible, and in default of payment of said fines, to be imprisoned in the jail of said city or county for a period not exceeding thirty days."

Clearly, no authority is therein given third class cities to fix by ordinance the amount of fine or penalty to be imposed for failure to secure such license. We are obliged to conclude, therefore, that the ordinance, at least in so far as it assumes to fix a penalty for its violation, is invalid because the fine or penalty provided therein exceeds in amount the limitations fixed by the Act of 1919, and, in the absence of other legislative authority, the city is without power to impose fines or penalties in excess of $100.

This view of the case makes it unnecessary to dispose of several other interesting questions presented at argument, and is without prejudice to further prosecution of the defendant in proper proceedings for the violation of the Act of May 2, 1899, P. L. 159, in which case we are of the opinion that the proceedings would be properly instituted in the name of the Commonwealth, but would necessarily be by preliminary hearing and indictment in the Quarter Sessions if the evidence warrant.

Defendant is found not guilty, and the sentence imposed is set aside.

From F. P. Slattery, Wilkes-Barre, Pa.

Commonwealth ex rel. Matulek v. Abbott, Warden.

Extradition-Habeas corpus Arrest-Constitution, U. S., art. iv., sect. 2 -Preliminary arrest―U. S. Rev. Stat., sect. 5278—Acts of May 24, 1878, and June 4, 1879, P. L. 95.

1. The arrest of a fugitive from justice upon a warrant secured from a magistrate prior to securing a warrant of extradition is in no sense a part of the extradition proceeding proper, authorized by article iv, section 2, of the Constitution of the United States and Rev. Stats., § 5278.

2. The source of the right to make such preliminary arrest being intrastate, the State legislature may regulate and limit it in any manner it may see fit, or may, if it sees fit, wholly abrogate it.

3. The right of the demanding state to demand extradition is based on the Federal Constitution, and the State legislature, although it may regulate the procedure for the enforcement of the right in so far as such regulation is not inconsistent with the Federal Constitution, cannot in any manner limit or revoke such right.

4. The provision of the Act of May 24, 1878, § 5, P. L. 137, to the effect that a prisoner arrested on a preliminary warrant shall not be held for a longer period than ninety days, is to prevent the wilful restraint of the prisoner's liberty.

5. The act has no application where the prisoner has caused delay by opposing securing the warrant of extradition.

6. Where a prisoner is held awaiting the arrival of an extradition warrant, he must seek his release by writ of habeas corpus.

7. If such prisoner has failed to secure his release before the arrival of the extradition warrant, his application to be released thereafter is too late.

8. The court may release him from the custody resulting from the preliminary warrant, but it has no power to release him from the custody resulting from the warrant of extradition.

9. The Act of May 24, 1878, § 4, P. L. 137, limiting the court's inquiry upon writs of habeas corpus to the question of identity, has apparently been treated by the appellate courts of Pennsylvania as unconstitutional.

10. The extradition warrant itself is prima facie evidence that the prisoner is identified as the person named therein and is a fugitive from justice.

1. Where the prisoner under an extradition warrant in habeas corpus proceedings sets up an alibi, thereby raising an issue of fact, the issue can only be determined by the courts of the demanding state.

Habeas corpus. C. P. Washington Co., Feb. T., 1923, No. 107.

Acheson & Crumrine (with them Charles J. Schuck and John D. Gardner), for relator.

Isaac W. Baum (with him William S. Wilkin, J. B. Handlan and J. J. Conniff), for respondents.

CUMMINS, J., Feb. 5, 1923.-The relator, Mike Matulek, was, on Sept. 6, 1922, arrested on a warrant issued by a magistrate and committed to the county jail of this county as a fugitive from justice, where he has since been confined. Subsequently a warrant for the extradition of the relator, issued by the Governor of Pennsylvania, at the request of the Governor of West Virginia, was, on Dec. 9, 1922 (more than ninety full days after the relator's commitment), lodged with the sheriff of this county; whereupon the relator, having been brought before this court, agreeably to the provisions of the Act of May 24, 1878, P. L. 137, petitioned for and caused to be issued a writ of habeas corpus, and after hearing thereon had, it is now claimed by the relator that he should be discharged from custody for the three following reasons: First, because the warrant of extradition was not received by the sheriff within ninety days (exclusive of the day of arrest) after the commitment of the relator; second, that there was not sufficient proof that the relator was the same person as named in the requisition; and third, that, under the evidence, it had not been established that the relator was a fugitive from the justice of the State of West Virginia. The last two reasons involve ques

Commonwealth ex rel. Matulek v. Abbott, Warden.

tions of fact to be found from the evidence, and the first, the fundamental law of interstate extradition, requiring a review of the constitutional provisions, Acts of Congress and acts of assembly relating thereto.

It is provided by our Federal Constitution (art. IV, § 2, see 1 Purd., 13th Ed., 63) that: "A person charged in any state with treason, felony or other crime, who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime." Pursuant to this constitutional provision, Congress, by section 5278 of the Revised Statutes, enacted that: "Whenever the executive authority of any state demands any person as a fugitive from justice of the executive authority of any state... to which such person has fled, and produces a copy of an indictment found or an affidavit... charging the person demanded with having committed treason, felony or other crime, certified as authentic by the governor . . . of the state . . . from whence the person so charged has fled, it shall be the duty of the executive authority of the state . . . to which such person has fled to cause him to be arrested... and to be delivered to such agent [of the demanding state] when he shall appear."

Our State legislature, by Act of May 24, 1878, P. L. 137, entitled "An act to regulate proceedings under requisitions upon the Governor of this Commonwealth for the apprehension of fugitives from justice," as amended by the Act of June 4, 1879, P. L. 95, undertook to regulate the procedure in interstate extradition proceedings had in this State. Section 1 of this act makes it the duty of the Governor, upon requisition made upon him by the governor of another state for the arrest of a fugitive from justice (accompanied with a certified copy of the indictment or information from the authority of such other state, charging such person with any crime in such state), to issue to the proper sheriff an extradition warrant for the arrest of such fugitive. The 2nd section provides for at least a hearing, and, in addition, affords the prisoner an opportunity to contest his extradition by writ of habeas corpus. The 3rd and 4th sections of the act prohibit the taking of a prisoner from the State without requisition and hearing; and the 5th section, as amended, provides: "That nothing in this act shall be construed to prevent the sheriff of any county, or chief of police of any city, or other person, to cause the arrest of any person or persons, upon information of the offence or crime committed in another state, and that a warrant has there been issued for the arrest of the said party or parties or has there been indicted: Provided, the officers of any town, city or county, or authorities of such other state or territory, shall procure a requisition and have the same presented to the Governor of this Commonwealth within ninety days after the arrest shall have been made, and the prisoner or prisoners, upon being arrested or detained, shall be brought before a court or judge in the manner and for the purpose provided in the 2nd section of this act: Provided, such person shall not be committed or held to bail for a longer period than ninety days, exclusive of the day of arrest, at the expiration of which time, if the sheriff has not received the requisition or warrant from the Governor of this Commonwealth, then the person or persons so arrested and detained shall be discharged from custody."

It is now claimed on behalf of the relator that, having been committed and held for a longer period than ninety days (exclusive of the day of his arrest) before a warrant of extradition had been lodged with the sheriff or jail warden, he is now entitled, under section 5 of this act, to be released from custody, notwithstanding the fact that at the time of petitioning for his VOL. 4-2

Commonwealth ex rel. Matulek v. Abbott, Warden.

release the Governor's warrant had later arrived and was then in the hands of the sheriff. The 5th section of this act must not only be construed in conjunction with the entire act, but the act itself must likewise be considered as a part of our entire system governing interstate extradition.

It is, first of all, important to observe that the arrest of a fugitive from justice upon a warrant secured from a magistrate, prior to the securement of a warrant of extradition, is in no sense a part of the extradition proceeding proper, authorized by article IV, section 2, of the Federal Constitution, and the Act of Congress passed pursuant thereto. The authority for such preliminary or provisional arrest is found in the common law of this State (Com. ex rel. Hay v. Rhodes, 8 Dist. R. 732; Com. v. Wilson, 1 Phila. 80; 25 Corpus Juris, § 19, 260), and is only recognized and to some extent regulated and limited by section 5 of the Act of May 24, 1878, as amended. The source of the right to make such preliminary or provisional arrest being intrastate, it follows that our State legislature may regulate and limit it in any manner it may see fit, or may, if it so desires, wholly abrogate it. The right, however, of a demanding state to interstate extradition is created by the Federal Constitution, and it, therefore, as clearly follows that our State legislature, although it may regulate the procedure for the enforcement of such right, in so far as not inconsistent with the Federal Constitution and Acts of Congress, cannot in any manner limit or revoke this right. The constitutional provision in question does not even contemplate an arrest before the procurement of the warrant of extradition, but expressly provides for an arrest following the procurement of such warrant. And this is likewise in a sense true of the Act of May 24, 1878, which refers to the right to such common law preliminary or cautionary arrest, apparently in the main to prevent a revocation of such right by implication. To hold that the warrant of extradition issued by the Governor was nullified before it reached our sheriff would most certainly be giving to this act of assembly a construction which would render it unconstitutional. When the period of ninety days had elapsed, the relator might be, under some circumstances, entitled to be released from custody resulting from such preliminary warrant of arrest, under the Act of May 24, 1878, but it does not follow that he would be entitled to be released from a custody then likewise resulting from an extradition warrant at that time also in the hands of the sheriff. It often happens that a prisoner, as in this case, may be held by virtue of several warrants lodged with the jailer or officer in whose custody he may at the time be. Even had the relator been actually released when the extradition warrant arrived, clearly there would have been nothing to prevent the sheriff from apprehending him, and it would have been his duty so to do.

Apart from the constitutional question involved, we do not believe that this proviso clause in section 5 of the act should be construed in the manner contended for by counsel for the relator, even as respects a custody resulting solely from the preliminary or cautionary arrest. While there is no direct authority on the subject, an almost analogous situation arises under section 64 of the Criminal Procedure Act of March 31, 1860, P. L. 382, 427, which act, in terms that are unmistakably mandatory, requires a prisoner to be released after the first term, if not tried, upon bail, and after the second term to be discharged. This section of the Criminal Procedure Act is referred to by Mr. Justice Simpson in Com. v. Zec, 262 Pa. 251, 256, as a habeas corpus act. Yet, notwithstanding the mandatory language used in this act, it has been uniformly held that its purpose was merely to prevent the wilful and repressive