he still retains the property as a pledge, and, upon tender of the debt, he may at any time be compelled to restore it; for prescription or the statute of limitations does not- run against it.” Kemp v. Westbrook, 1 Ves. Sr. 278; Jones, Bailm. 84.

We are of opinion that it was error to apply the statute in this case, and for this reason the judgment must be reversed. The verdict was in favor Of the defendant, which, of course, defeated a recovery upon his notes discounted by the bank. He may, upon another trial, get a certificate for the balance he claims to be due on the collaterals, or he may fail in this, and have to pay his notes besides. But he has a rightto take this risk.

Judgment reversed, and a venirefacias de novo awarded.

APPEAL OF CITY OF SCRANTON Set-[OOL-DIsTRIOT.l
(Supreme Oourt of Pennsylvania. October 4, 1886.)

CONSTITUTIONAL LAW—LOCAL LAws—TAXATION IN CITIEs—CLAssEs—RATEs.

The Pennsylvania act of March 18, 1875, which provides that real estate in cities of the third class shall be arranged in three classes, upon which different rates of taxation shall be imposed, and excluding from the operation of the act all cities of the class named, and those containing less than 10,000 population previously incorporated, which do not accept by ordinance the provisions of the act, is unconstitutional, violating the seventh section of the third article of the constitution, which prohibits the general assembly from plassing anylocal or special law regulating the affairs of counties, cities, towns ips, etc.

Appeal from common pleas, Lackawanna county.

Bill in equity praying for injunction to restrain the collection of taxes. The facts appear in the opinion of the court.

The court, (McCOLLUM, P. J .,) in an opinion filed, says:

“The argument in support of this conclusion is that inasmuch as some cities of the third class may accept the act, and others may not, the system provided for the government of cities of the third class is not uniform; that by means of the option clause one such city may have one system of laws, and another a difierent system, and in this manner the constitutional provision against special legislation is evaded, etc. This objection is, we think, well answered by Judge Hand in the late case of Com. v. Halsteacl, 2 C. P. Reg. 1. A law for cities of the third class hereafter incorporated, with privilogo to cities of that class already in existence to become subject to the pro-. visions, is not, in our opinion, a local or special law within the prohibition of the constitution.”

Fred. W. Gunster and Charles H. Welles, for appellants.

The legislature cannot provide more than one system for the government of cities of the third class. One was provided by act May 23, 1874.

E. N. Willard and Everett Warren, for appellees.

Nearly all the third-class cities have accepted both acts. If null and void, the government of these cities during the past 10 years has been without authority of law.

GREEN, J. The plaintiff in this case claims the benefit of the provision of the first sect-ion of the act of March 18, 1875, (P. L. 15,) which directs that in cities of the third class, for purposes of taxation, all real estate and the improvements thereon shall be classified and arranged in three classes, upon which different rates of assessment shall be imposed. The rate claimed by the plaintiff is less than the full rate levied upon ‘ the adjusted valuation made for city purposes upon which the defendant has caused the school tax to be assessed. The proviso to the fifth section of the act of eighteenth March, 1875, excludes from the operation of the act all cities of the third class, and all cities containing less than 10,000 population previously incorporated, which do not accept, by an ordinance duly passed, the provisions of the act. According to this all cities that do accept will be subject to the methods of assessment and collection prescribed by the first five sections, and all that do not will not be so subject, and as to them different methods will prevail. Whether the methods prescribed by the act shall be the law will depend, not upon the terms of the legislation, but upon the will of others who are not lawmakers at all, and what may be the law in one city of the third class may not be the law in another city of the same class. In other words, a majority of the members of the city councils of any one city of the third class may impose upon the inhabitants of that city a method of taxation which may not prevail in any other city of the commonwealth. A law which authorizes this to be done is, in our judgment, clearly obnoxious to the seventh section of the third article of the constitution, which prohibits the general assembly from passing any local or special law regulating the afiairs of counties, cities. townships, wards, boroughs, or school-districts. The circumstance that the power to determine the question is delegated to another body does not at all affect the question. The practical result is the same. The law of 1875 will be limited to the one or more cities that do accept, and that makes it local. All our recent decisions are to the effect that, if local results either are or may be produced by a piece of legislation, it offends against this provision of the constitution, and is void. Com. v. Patton, 88 Pa. St. 258; Scowden’s Appeal, 96 Pa. St. 422; Davis v. Clark, 15 Wkly. Notes Gas. 209; S. G. '1 Atl. Rep. 239; McCarthy v. Com., 16 Wkly. Notes Gas. 497; S. C. 2 Atl. Rep. 423.

In the first of these cases the method employed was to limit the application of an act which ostensibly embraced “all counties,” by a geographical description which confined it to one. In the next case the attempt was made to produce the same result by describing two concurrent populations of county and city of such figures as to confine the operations of the act practically to but one county, and it was condemned for the same reason. In the last two cases named the objectionable lim

itation restrained the operation Of the act to counties of prescribed popu— lations, and in both cases the legislation was condemned because it embraced less than the whole of the counties of the state.

In Davis v. Clark the present chief justice said:

“It was not, then, a general act, applicable to every part of the commonwealth. It did apply to a great number of counties; but there is no dividing line between a local and a general statute. It must be either one or the other. If it apply to the whole state, it is general. If to a part only, it is local. As a legal principle, it is as effectually local when it applies to sixty-five counties Out Of the sixty-seven as if it applied to one county only. The exclusion of a single county from the operation of the act makes it local.”

We see no difference in principle between the foregoing cases and the present. It is the duty of the courts to enforce the constitution as they find it. Attempts, in covert modes, to defeat its plain provisions, must be set aside with the same certainty as when the methods are open. Even if the intention be innocent, and yet the legislation comes within the constitutional prohibitions, it must not be tolerated. We are Of opinion that the second conclusion of law found by the master should have been sustained, and the bill dismissed. The other matters discussed do not require consideration.

Decree reversed, and plaintiff ’s bill dismissed, at the cost Of the appellee.

FRIEDEBORN v. COMMONWEALTH.‘
(Supreme Court of Pennsylvania. October 4, 1886.)

1. SUNDAY—WORLDLY BUSINESS—DISTINCT AoTs—AOT OF APRIL 22, 1794. Under the act of April 22. 1794, which forbids the doing of any worldly business on the Lord’s day, it was error to hold that every act done 1n any worldly business is a distinct and separate Offense. The offense consists in the exercise of an employment or business, and either may include one or moreseparate acts.

2. SAME—SUNDAY LAw OF 29 CAR. II. The acts of 29 Car. II. and April 22, 1794, are not in lan uage essentially difgeiéent, as held in Duncan v. Com., (common pleas, Daup in county,) 2 Pears. 1 . Error to common pleas, Montgomery county. The facts appear in the opinion of the court.

J. Wright Apple and I. P. Wanger, for plaintiff in error.

Only one penalty can be incurred in one day for exercising a business on Sunday. Com. v. Jerandell, 2 Grant, 506; Crepps v. Durden, Cowp. 640.

Isaac Chism, for defendant in error, cited Reifl" v. Com., 42 Leg. Int. 90, and Duncan v. Com., 2 Pears. 213.

GORDON, J. There are but few of our statutes which, in principle, are Of more importance than the act of the twenty-second of April, 1794, commonly called the “Sunday Act,” in that it recognizes the first day of the week as a Sabbath of rest for the well-disposed and religious people Of our commonwealth, and we can entertain but little respect for those who willfully and persistently violate its prescriptions. Against all such its penalty should be enforced until they are taught that a respect for its provisions may, at least, be profitable from a pecuniary point of view. The fine imposed is but light,—far too light, indeed, to prevent the violation of the statute by our great corporations and heavy capitalists, who regard their own profit rather than the public welfare; but the correction of this defect in the law is not within our province. We can but interpret the act as we find it.

In the case in hand it appears from the record before us that the plaintiff in error, Andrew Friedeborn, was, on the seventh'of October, 1884, arrested and brought before JOHN A. DERR, a justice Of the peace for the county of Montgomery, and convicted of six several violations of the Sunday law on one and the same day, so that the fines altogether amounted to $24. The charge was of selling to six different persons small quantities of cigars, tobacco, cider, spruce beer, and candy, and in each case the fine of four dollars was imposed. On certiorari to the common pleas these convictions were affirmed. In this we think there was error. The act of 1794 imposes but one penalty,—a fine of four dollars for the violation of the Sabbath day; and as in law, unless other— wise provided by the legislature, there are no fractions of a day, it is clear that by the same person there can be but one such violation, and consequently but one fine. Moreover, the offense consists in “ performing any worldly employment or business whatsoever on the Lord’s day, commonly called Sunday,” so that there is no prescription of any one or more distinct act or acts, but of “ any employment or business,” whether the act or acts which constitute such employment are one or many. Friedeborn’s business was that of a vendor of tobacco, cigars, etc., and he was not less a vendor, though on Sunday, the fifth of October, he sold but one cigar; nor would he have been more so had he on that day sold all the goods of which he was possessed. In either case he was engaged in his worldly employment, and that employment could not be changed, or its character altered, by the number of articles sold, or the time required for its performance.

Nor is the construction which we thus put upon. our statute a new one; for we have a ruling on the British statute, which, so far as the offense charged in the present case is concerned, is precisely similar to our own. The case to which we refer is that of Crepps v. Durden, 2 Cowp. 640. The action was trespass brought against a justice of the peace for issuing four warrants for the collection of four several fines imposed on the plaintiff on conviction under the statute of 29 Car. II. c. 7, for selling small hot loaves of bread “on the Lord’s day, commonly called Sunday.” _ These four several acts of selling the loaves or rolls were done on the same Sunday, and it was contended that under the act there could be but one conviction; in other words, that the four sales constituted but one offense, and so it was held in the king’s bench. Lord MANSFIELD, delivering the opinion of the court, said:

“The first question is whether any objection can be made to the legality of

the convictions before they were quashed? In order to see whether it can, v.6A.no.2—11

we will state the objection. It is this: that here are three convictions of a baker for exercising his trade on one and the same day; he having been before convicted for exercising his ordinary calling on that identical day. If the act of parliament gives authority to levy but one penalty, there is an end of the question, for there is no penalty at common law. On the construction of the act of parliament the Offense is ‘ exercising his ordinary trade on the Lord’s day;’ and without any fractions of a day, hours, or minutes. It is but one entire offense, whether longer or shorter in point of duration; so whether it consist of one or many particular acts. The penalty incurred by this Offense is five shillings. There can be but one entire offense on one and the same day.”

It will be seen that the case in hand, and that cited , are so nearly alike that were it a decision of this court it must be regarded as a final determination of the contention. As it is, we regard the reasoning as so con— clusive that we do not hesitate to adopt it.

The learned judge of the court below seems to have fallen into the error found in the case of Duncan v. Com., (common pleas of Dauphin county,) 2 Pears. 213; that is to say, that the act of 1794 and that of 29 Car. II. are in language essentially different. This is a mistake, at ' least so far as a case like that in hand is concerned, as will readily be discovered by a comparison of the two acts. The first reads, “No tradesnian, artificer, or any other person whatsoever shall do or exercise any worldly labor, business, or work of their ordinary calling upon the Lord’s

day ;” the other, “If any person shall do or perform any worldly business whatsoever on the Lord’s day, commonly called Sunday.” Now, as the plaintiff in error was in fact convicted of exercising worldly business in his ordinary calling on the Lord’s day, it is clear that the offense would fall as well within the act of 29 Car. II. as within that of 1794. It is true, the latter act embraces much more than the former; for, while the one prohibits only such work or labor as is done “in the work of their ordinary calling,” the other includes “any worldly employment or business whatsoever 3” and this is the material difference between the two statutes, if we except the prohibition of amusements and games. Kepner v. Keefer, 6 \Vatts, 231; Johnston v. Com., 22 Pa. St. 102. The mistake made in the court below was in holding that the act of 1794 made every act done in any worldly employment or business a distinct and separate offense; but it does nothing of the kind, for the offense, as we have shown, and as is apparent from the face of the statute, consists in the exercise of an employment or business, and either may include one or one thousand separate acts. So, in the case cited, (2 Pears.,) it has of necessity to be admitted that a mechanic in his shop, or a farmer on his farm, may work all of a Sunday, and yet be guilty of but a single breach of the statute. The farmer may plow, reap, or sow, the mechanic hammer, plane, or saw, through the entire day, and he is guilty of but one infraction of the law; but the merchant, though, like them, engaged in a single trade or calling, may be guilty of several such infractions, not because he sells several things to one person, but because he sells those several things to several persons. We cannot adopt an interpretation of this kind, not because the law, were it as stated, would