ject has received elaborate examination at the hands of the Supreme Court of Pennsylvania, in a case decided in 1872. It arose under an act conferring upon the board of licensers of the city of Erie "the same power and authority to grant licenses in the said city of Erie as the court of Quarter Sessions now has." The various acts under which that court exercised its jurisdiction in the granting of licenses required that the court should grant no license when the public house for which it was asked was unnecessary or insufficient in the point of accommodation, or where the person by whom it was sought for was unfit, and directed that it should be lawful for the court to hear petitions, in addition to that of the applicant, for, and remonstrances against the application, and in all cases to refuse the same, whenever, in its opinion, having due regard to the number and character of the petitioners for and against the application, such license was not necessary for the accommodation of the public, etc., and, upon sufficient cause shown, to revoke any license granted. "No subject," says the Court, "has been productive of more difference of opinion and practice than this, in the different judicial districts of the state; some judges holding it to be obligatory on the court to grant every license where the applicant has brought himself within the provisions of the law as to the terms of his application, and others holding that they are not bound to grant any license whatever. Clearly neither opinion is right; the discretion which the court exercises being a sound discretion upon the circumstances of each case as it is presented to the court, and not a general opinion upon the propriety or impropriety of granting licenses. Whether any or all licenses should be granted is a legislative, not a judicial question. Courts sit to administer the law fairly, as it is given to them, and not to make or repeal it. The law of the land has determined that licenses shall exist, and has imposed upon the court the duty of ascertaining the proper instances in which the license shall be granted, and therefore has given it to the court to decide upon each case as it arises in due course of The act of deciding is judicial, and not arbitrary or

law.

wilful.

The discretion vested in the court is, therefore, a

judicial discretion; and to be a rightful judgment it must be exercised in the particular case and upon the facts and circumstances before the court, after they have been heard and duly considered; in other words, to be exercised upon the merits of each case, according to the rule given by the Act of Assembly. To say that I will grant no license to any one, or that I will grant it to every one, is not to decide judicially on the merits of the case, but to determine beforehand without a hearing, or else to disregard what has been heard. It is to determine, not according to law, but outside of law, and it is not a legal judgment, but the exercise of an arbitrary will.”184

§ 150. [Upon a similar question, where an act,] after fixing the hours within which intoxicating liquors might be sold, authorized the licensing justices to alter the hours in any particular locality, within the district, requiring other hours; it was held that they had no right to alter the time. in every case by virtue of a general resolution to which they had come (a). And though their resolution was limited to a portion of the locality, yet as this portion comprised every licensed house of the whole district, the limitation was regarded as a mere attempt to evade the Act. The statute required them to decide, in the honest and bona fide exercise of their judgment, what particular localities required other hours for opening and closing, than those specified; and they were bound to satisfy themselves that the special circumstances of the particular locality, which they took out of the general rule laid down by Parliament, required that the exception should be made (b). The statute had laid down a general rule, and permitted an exception; but here the exception had swallowed up the rule; and that which might fairly have been an exercise of discretion, became no exercise of the kind of discretion meant by the Act (c).

184 Schlaudecker v. Marshall, 72 Pa. St. 200, 206-7, per Agnew, J. (a) Macbeth v. Ashley, L. R. 2 Sc. App. 352.

14

(b) See the judgment of Lord Selborne, Id. 359.

(c) Per Lord Cairns, L. R. 2 Sc. App. 357. [See Addenda.]

CHAPTER VI.

PRESUMPTIONS AS TO JURISDICTIONS, GOVERNMENT, EXCESS OF LEGISLATIVE FUNCTIONS AND POWERS, VIOLATION OF INTERNATIONAL LAW, TREATIES AND CONSTITUTION.

§ 151. Presumption against Ousting Jurisdictions. Superior Courts. § 152. Justices of the Peace and Inferior Courts.

§ 153. Ouster of Jurisdiction by Implication.

§ 154. Exclusive Statutory Jurisdictions and Remedies.

§ 155. Presumption against Creating New Jurisdictions and Remedies.

g 156. Effect to be given to Necessary Implication.

§ 157. New Jurisdictions and Remedies not Extended by Construction. § 158. Summary Jurisdictions.

§ 159. United States Courts.

§ 160. Special Jurisdictions.

§ 161. Presumption against Intent to Affect Government. Eminent

Domain.

§ 163. Statutes Imposing Taxation.

§ 164. Statutes of Limitations.

§ 165. Municipalities.

§ 166. When Government is Included.

§ 169. Statutes presumed to have no extra-territorial force.

§ 170. Exceptions.

§ 171. Presumption against Intent to Exceed Legislative Functions and Powers. Natural Laws.

§ 172. Presumption against Invasion of Judicial Functions.

173. Presumption against Intent to Bind Future Legislatures.

§ 174. Presumption against Violation of International Law. Treaties.

§ 176. Rights, etc., of Foreigners. Remedies.

§ 178. Presumption against Intent to Violate Constitution.

§ 179. Restriction of Language to Conform with Constitution.

§ 180. Limits of Rule.

§ 181. Statute and Constitution to be Construed Together.

151. Presumption against Ousting Jurisdictions. Superior Courts. It is, perhaps, on the general presumption against an intention to disturb the established state of the law, or

to interfere with the vested rights of the subject (a), that the strong leaning now rests against construing a statute as ousting or restricting the jurisdiction of the Superior Courts; although it may owe its origin to the pecuniary interests of the Judges in former times, when their emoluments depended mainly on fees (b). It is supposed that the legis lature would not make so important an innovation, without a very explicit expression of its intention. It would not be inferred, for instance, from the grant of a jurisdiction to a new tribunal over certain cases, that the legislature intended to deprive the Superior Court of the jurisdiction which it already possessed over the same cases. Thus, an Act which provided that if any question arose upon taking a distress, it should be determined by a commissioner of taxes, would not thereby take away the jurisdiction of the Superior Court to try an action for an illegal distress (c). Nor would that Court be ousted of its preventive jurisdiction to stop by injunction the misapplication of poor rates, by the power given to the poor law commissioners by statute to determine. the propriety of all such expenditure (d). It did not follow in either case, that because authority was given to the commissioners, it was taken away from the Court. [So, a grant to the councils of a municipality, of power to open streets, does not operate as a repeal of that power conferred by former acts upon the Courts of Quarter Sessions.' An act which extended the equity jurisdiction of the Supreme Court of Pennsylvania and of the Courts of Common Pleas in Philadelphia County to causes based on accounts, etc., was

(a) See Jacobs v. Brett, L. R. 20 Eq. 1. [See, also, Overseers v. Smith, 2 Serg. & R. (Pa.) 363, 365, 367.]

(b) Per Lord Campbell in Scott V. Avery, 5 H. L. 811, 25 L. J. Ex. 303. Soin construing contracts, Scott v. Avery; Tredwen v. Holman, 1 H. & C. 72, 31 L.J. 398; Edwards v. Aberayon Insurance Co.,1 Q.B. D. 563; Dawson v. Fitzgerald, Ex. D. 257.

(c) 43 Geo. 3, c. 99; Shaftesbury v. Russell, 1 B. & C. 666; see, also, Rochdale Canal Co. v. King, 14 Q.

B. 122.

(d) Atty. Genl. v. Southampton, 17 Sim. 6. See Birley v. Chorlton, 3 Beav. 499; Smith v. Whitmore, 1 Hem. & M. 576, 2 De Gex, J. & S. 297, 33 L. J. 713. [See People v. Vanderbilt, 24 How. Pr. (N.Ÿ.) 301, where it was held that a statute conferring power to remove an ob struction when erected, does not take away the right of the courts to prohibit the erection thereof before completed, if it is unlawful, apart from the statute.]

Re Twenty-eighth Str., 102 Pa. St. 140.

held not repealed by a later act giving the courts of Common Pleas throughout the state chancery jurisdiction in settling partnership accounts, etc.; nor the latter by an act giving jurisdiction to all the courts of Common Pleas of several classes of cases, including accounts which cannot be settled by actions of account render. Statutes giving jurisdiction to courts of law previously within the jurisdiction of courts of equity, do not, ordinarily, where the language of the statute is affirmative and does not otherwise provide, destroy the jurisdiction of the latter in the premises; the principle being that an act affirmatively giving jurisdiction to one court is not to be understood as ousting the jurisdiction previously existing in another. It may be observed that this principle applies equally to constitutional provisions affecting the jurisdiction of, e. g., the Supreme Court of the State," whose jurisdiction, it is said, can be taken away only by express words or irresistible implication,' whether by statute or by the constitution, and whether that jurisdiction be original or appellate. As a result of the strict construction flowing from the presumption against ousting an established jurisdiction, it follows that an act giving an exclusive in place of a former concurrent jurisdiction is not to be construed retrospectively, if its language can fairly bear another interpretation.10

152. Justices of the Peace and Inferior Courts.-Acts which give justices and other inferior tribunals jurisdiction in certain cases, are understood, in general, when silent on the subject, as not affecting the power of control and supervision which the Superior Court exercises over the proceedings of

Dick's App., 106 Pa. St. 589. The statutes were, respectively, Act 13 June 1840, § 39; Act 13 Oct. 1840, § 19; Act 14 Feb. 1857.

3 Crawford v. Childress, 1 Ala. 482; Wesley Church v. Moore, 10 Pa. St. 273; Raudebaugh v. Shelley, 6 Ohio St. 307; Barnawell v. Threadgill, 5 Ired. Eq. (N. C.) 86; Phipps v. Kelly, 12 Oreg. 213; McKoin V. Cooley, 3 Humph. (Tenn.) 559. And see People v. Vanderbilt, 24 How. Pr. (N. Y.) 301; Gibbes v. Beaufort, 20 S. C. 213. Also post, § 218.

Barnawell v. Threadgill, supra. For a recognition of which see Custer Co. v. Yellowstone Co., 6 Mont. 39.

• See post, § 522, Com'th v. Balph, 111 Pa. St. 365.

Overseers v. Smith, 2 Serg. &
R. (Pa.) 363, 365.

8 See cases in notes 6 and 7.
9 Ibid.

10 State v. Littlefield, 93 N. C. 614; and see where an exclusive jurisdiction is made concurrent, to the same effect: Mc Michael v. Skilton, 13 Pa. St. 215.