De Willer versus Smith

De Willer versus Smith. [MAJORITY] THIS case came before the Court on a Certiorari to remove a judgment, which Smith had obtained before the Mayor of the City of Philadelphia in a qui tam suit, brought against Catharine De Willer as a Huckster, upon an Ordinance of the Corporation (passed the 26th November, 1792) which imposes a penalty of 37s6 upon any Huckster, who within the limits of the city, shall buy any provision, fruit, &c. more than is necessary for his, or her, family use, except after ten o’clock on market days. Two exceptions were taken to the proceedings by J. M'Kean and S. Levy: 1st. That the judgment did not state that De Willer was proved to be a Huckster. 1 Salk. 404. 4 Bl. Com. 280. 281. 1 Burr. Inst. 330. 331. 333. 335. 336. 233.— 2d. That the Ordinance of the Corporation is contrary to the Constitution and Laws of the State, and, therefore, void. 1 Bac. Ab. 328. Const. of Penn. The proceedings were supported by Wilcocks (the Recorder) and Thomas, who contended, that the judgment was not in nature of a conviction, but founded on an action of debt ; and that, therefore, it was unnecessary to state that defendant was proved to be a Huckster. With respect to the power of the Corporation to enact the Ordinance, they urged, that it arose from the necessity of the case, since experience had evinced, that nothing less than the absolute prohibition contained in the Ordinance, could defeat the stratagems of the Hucksters, and prevent the extortion which they introduced.