Adams v. City Of New Kensington.

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtHORACE STERN, Justice.
Citation357 Pa. 557,55 A.2d 392
Decision Date24 November 1947

357 Pa. 557
55 A.2d 392


Supreme Court of Pennsylvania.

Nov. 10, 1947.
Rehearing Denied Nov. 24, 1947.

Appeal No. 146, March Term, 1947, from decree of Court of Common Pleas, Westmoreland County; No. 2120, in Equity; George H. McWherter, Judge.

Bill in equity by William Adams against City of New Kensington, to enjoin enforcement of ordinance of defendant city regulating the use, operation, and possession, providing for the licensing of and fixing license fees for music boxes, juke boxes, and mechanical vending machines, and imposing penalties for violation thereof. From decree granting injunction, the defendant appeals.

Reversed and record remanded with directions.

55 A.2d 393


Carroll Caruthers, of Greensburg, and Harry W. Crum, of New Kensington, for appellant.

Vincent R. Smith, of Greensburg, and P. K. Jones, of New Kensington, for appellee.


The City of New Kensington enacted an ordinaance ‘Regulating the Use, Operation and Possession, Providing for the Licensing of, Fixing License Fees for Music Boxes, Juke Boxes and Mechanical Vending Machines and Imposing Penalties for the Violation Thereof.’ It provided that no one should have in his possession within the city any music boxes, juke boxes, phonographs or similar devices, operated through the insertion therein of a coin or disk, without having first procured a license therefor; by another section the requirement of a license was extended to the possession of ‘any vending machines of whatsoever nature’ similarly operated. The license fee was fixed at $25 per annum for each and every such device or machine; for any violation of the ordinance a fine was to be imposed of not less than $50 nor more than $100, with costs, for each and every offense; in default of payment the offender was to be committed to jail for a period not exceeding thirty days. It was provided that ‘Each and every day that any such machine or device under the terms of this Ordinance shall be operated and used in violation thereof shall constitute a separate and distinct offense under this Ordinance, and shall be subject to separate and distinct penalties hereunder.’

Plaintiff owns 200 juke boxes in the County of Westmoreland, about 15 of them in the City of New Kensington; the approximate value of each is $740. They are leased out by plaintiff for operation in various establishments, the receipts being divided between him and the respective lessees; he also supplies the records. He has not applied for a license or paid the prescribed fees. Alleging that the enforcement of the ordinance would cause him irreparable injury and compel him to discontinue entirely the operation of the boxes in New Kensington, he filed a bill in quity to enjoin the enforcement of the ordinance,

55 A.2d 394

which, he asserted, was unconstitutional, void, and beyond the legislative power of the city council. The court granted the injunction prayed for, and the City of New Kensington appeals.

It is elementary that an injunction will not be granted to restrain criminal prosecutions on the mere ground that the statute or ordinance on which the prosecution is based is, for any reason, unenforceable, since the party has an adequate remedy at law; he may establish at trial, by way of defence, the invalidity of the legislative enactment. But equity does have jurisdiction to enjoin such a prosecution where it is alleged not only that the statute or ordinance is unconstitutional and void but that its enforcement would cause the plaintiff irreparable loss to his property, either by effecting, if not a total suppression of his business, at least a grave interference therewith, or by subjecting him to the imposition of cumulative, exorbitant and oppressive penalties pending judicial determination of the validity of the legislation. 1 In such cases the ground of equitable jurisdiction is the protection of property rights, and the fact that a criminal proceeding is involved is merely incidental: Mahoning & Shenango Ry. & Light Co. v. New Castle, 233 Pa. 413, 418, 82 A. 501, 502, Ann.Cas. 1913B. 658; Martin v. Baldy, 249 Pa. 253, 258, 259, 94 A. 1091, 1093; Valley Railways v. Harrisburg, 280 Pa. 385, 392, 124 A. 644, 646, 647; Pennsylvania Railroad Co. v. Driscoll, 330 Pa. 97, 101, 102, 198 A. 130, 133; Bell Telephone Co. of Pennsylvania v. Driscoll, 343 Pa. 109, 112, 21 A.2d 912, 914. 2

The vital question is whether the ordinance is valid. It is not a revenue measure. The City has disclaimed of record any intention to justify it on that ground and relies entirely upon its police power as the source of its authority to enact the ordinance. Neither does plaintiff contend that the ordinance is in reality a revenue measure under the guise of an exercise of the police power; to maintain such a contention the burden would have been upon him to prove that the fee was unreasonable and more than sufficient to cover the cost of inspection and supervision: Kittanning Borough v. American Natural Gas Co., 239 Pa. 210, 213, 86 A. 717, 718; William Laubach & Sons v. Easton, 347 Pa. 542, 549, 32 A.2d 881, 885; Rock v. Philadelphia, 127 Pa.Super. 143, 148, 191 A. 669, 671, 672 (affirmed 328 Pa. 382, 196 A. 59, 114 A.L.R. 567). He made no attempt to do this. The question of the validity of the ordinance reduces itself, therefore, to the sole inquiry whether the police power of the City, as derived by grant from the Commonwealth, is extensive enough to justify such an enactment.

The Third Class City Law of June 23, 1931, P.L. 932, sec. 2403, cl. 54, 53 P.S. § 12198-2403, subd. 54, provides that: ‘In addition to the powers and authority vested in each city by the provisions of this act, [the council of each city shall have power] to make and adopt all such ordinances,

55 A.2d 395

* * * 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 * *...

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    ...and the Complaint dismissed. The plaintiff appealed. We are satisfied that Equity has jurisdiction. (Adams v. City of New Kensington, 357 Pa. 557, 55 A.2d 392; Harris-Walsh, Inc. v. Borough of Dickson City, 420 Pa. 259, 216 A.2d 329.) The Act of September 27, 1961, P.L. 1695, provides that:......
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