Bargain City U.S. A., Inc. v. Dilworth

Decision Date21 March 1962
Citation179 A.2d 439,407 Pa. 129
PartiesBARGAIN CITY U. S. A., INC., Appellant, v. Richardson DILWORTH, Mayor of the City of Philadelphia; Donald Wagner, Managing Director of the City of Philadelphia; Victor Blanc, District Attorney of the City of Philadelphia; and Thomas Gibbons, Police Commissioner of the City of Philadelphia.
CourtPennsylvania Supreme Court

Myron Harris, Philadelphia, for appellant.

James L. Stern, Deputy City Sol., Matthew W. Bullock, Jr., Asst. City Sol., David Berger, City Sol., Philadelphia, for appellee.

Arthur Littleton, Russell C. Dilks, Benjamin M. Quigg, Jr., Philadelphia, W. James MacIntosh, Morgan, Lewis & Bockius, Philadelphia, for Pennsylvania Retailers' Ass'n, amicus curiae.

Alan Miles Ruben, Deputy Atty. Gen., David Stahl, Atty. Gen., for Commonwealth of Pennsylvania, amicus curiae.

Morris Efron, Allentown, Harold E. Kohn, William T. Coleman, Jr., Louis E. Levinthal, Philadelphia, for 'Two Guys From Harrison-Allentown, Inc.', amicus curiae.


COHEN, Justice.

In this appeal Bargain City U.S.A., Inc., appellant, attacks the validity of the Act of 1959, August 10, P.L. 660, § 1, 18 P.S. § 4699.10, which prohibits the Sunday retail sale of certain specified commodities. Although appellant initially attacked the statute upon a variety of grounds under the federal constitution, these issues have been foreclosed by the decision of the United States Supreme Court in Two Guys From Harrison-Allentown, Inc. v. McGinley et al., 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551 (1961). Appellant now asserts only two bases for the alleged invalidity: (1) that the act violates article III, section 7, of the Pennsylvania Constitution, P.S. in that it is a local or special law regulating labor or trade and (2) that the act violates the fourteenth amendment to the United States Constitution because its enforcement has been conducted in a discriminatory manner by the Philadelphia officials charged with the duty of enforcement.

The close correspondence in meaning and purpose between article III, section 7, of our state constitution and the 'equal protection' clause of the fourteenth amendment to the federal constitution was recently accentuated by this court in its opinion in Rubin v. Bailey, 398 Pa. 271, 157 A.2d 882 (1960), where we unanimously refused to overturn the lower court's dissolution of a preliminary injunction restraining the police authorities from enforcing the Act of 1959. In finding no clear constitutional violation, this court, in an opinion by former Chief Justice Charles Alvin Jones, stated:

'Likewise, since it has * * * been held that the Act of 1959 does not violate the 'equal protection' clause of the Federal Constitution, it would be equally unreasonable for us to conclude that the Act plainly violates Article III, Section 7, or Article XVI, Section 3, of the Pennsylvania Constitution.'

While the decision in that case did not go to the merits of the issue, the above language illustrates the approach required in considering article III, section 7. In this respect, therefore, we begin by recognizing that one of the determinations made finally by the United States Supreme Court in the Two Guys case, is that the Pennsylvania statute does not violate the equal protection clause of the fourteenth amendment to the federal constitution.

Appellant seeks to counter the conclusion that article III, section 7, and the fourteenth amendment correspond in their protections by asserting, first, that this court must determine the state constitutional question independently and, second, that standards applied by federal courts in testing legislation under the federal constitution are less sweeping than those used by a state court in applying relevant sections of the state constitution. The first contention is not open to argument. State constitutional issues are ultimately decided by this court, not the federal courts.

That the Act of 1959 does not apply to all sales of commodities or even to retail sales of all commodities is self-evident. It selects the retail sale of a limited number of items for intensified restriction, leaving the sale of other items to the basic provisions of the Act of 1939, June 24, section 699.4, 18 P.S. § 4699.4. But a classification in and of itself is not prohibited by article III, section 7, as we have many times held, e. g. Seabolt v. Commissioners, 187 Pa. 318, 323, 41 A. 22 (1898), Commonwealth v. Gilligan, 195 Pa. 504, 509, 46 A. 124 (1900) as long as the classification is reasonable and founded upon a genuine distinction, Application of Smith, 381 Pa. 223, 233, 112 A.2d 625, 55 A.L.R.2d 420 (1955). Moreover, article III, section 7 does not provide for a test of the wisdom of a classification but only of its good faith and reasonableness. Application of Smith. In appeal, therefore, we need only decide if the distinctions are reasonable. In this light we are not prepared to agree with appellant that the federal and state standards are significantly different. See Williamson v. Lee Optical, Inc., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955).

There exists in the Act of 1959, of course, no geographical distinction; so the act cannot be regarded only as a local one. And, as indicated above, it does not exist as an isolated enactment but rather as one increasing penalties in a certain area of generally restricted activity. Justice Frankfurther, concurring in the Two Guys decision, pointed out the bases upon which the reasonableness of the 1959 Act must be upheld.

'Rather it [the 1959 statute] singles out the area where a danger has been made most evident, and within that area treats all business enterprises equally. That in so doing it may have drawn the line between the sale of a sofa cover, punished by a hundred-dollar fine, and the sale of an automobile seat cover, punished by a four dollar fine, is not sufficient to void the legislation. '[A] state may classify with reference to the evil to be prevented, and * * * if the class discriminated against is or reasonably might be considered to define those from whom the evil mainly is to be feared, it properly may be picked out. A lack of abstract symmetry does not matter. The question is a practical one dependent upon experience. The demand for symmetry ignores the specific difference that experience is supposed to have shown to mark the class. It is not enough to invalidate the law that others may do the same thing and go unpunished, if, as a matter of fact, it is found that the danger is characteristic of the class named.' Mr. Justice Holmes in Patsone v. Commonwealth of Pennsylvania, 232 U.S. 138, 144, 34 S.Ct. 281, 282, 58 L.Ed. 539.' (366 U.S. at 541-542, 81 S.Ct. 1197).

This reasoning is equally as applicable to the question here before us. We are satisfied that the legislative classification bears a reasonable and logical relationship to the end sought, that of effective enforcement of a valid legislative act in an area particularly subject to violation.

Appellant's second point of attack is that the statute violates the federal constitution because of policy of discriminatory enforcement. In this respect the court below originally found as a fact (No. 14) that the Police Commissioner of Philadelphia had established a policy of enforcing the Act only against employees of certain large retail establishments. It also found as facts (Nos. 11 and 12) that this enforcement policy was followed because of limited personnel available to the Commissioner, no findings being made, however, that the policy resulted from any arbitrary and evil design.

In deciding this phase of the case, we are initially confronted by the fact that the constitutionality of the statute cannot be governed by its enforcement unless the discrimination in enforcement flows directly from a discrimination intended by the statute, a conclusion we cannot here draw. Secondly, Police Commissioner Gibbons is no longer in office (nor is District Attorney Blanc, the other defendant directly involved in law enforcement activity); and no findings regarding enforcement were made as to the other defendants. This means that we are being asked to authorize the issuance of an injunction against a public official as a result of an alleged policy of discrimination set by him when he is no longer able to enforce the statute. We must conclude under these circumstances that the action against the defendants on the enforcement issue necessarily abated upon the commissioner's leaving office and that no injunctive relief on this ground can be justified. Cf. Pullman Company v. Knott, 243 U.S. 447, 37 S.Ct. 428, 61 L.Ed. 841 (1917).

Decree affirmed at appellant's costs.

BELL, Chief Justice (concurring in part and dissenting in part).

I agree that the alleged policy of discriminatory enforcement did not amount to a violation of the Constitution. However, in my judgment, the Act of August 10, 1959, 1 offends and violates the provisions of Article III, Section 7, of the Pennsylvania Constitution.

The Act of 1959, supra, provides:

'Whoever engages on Sunday in the business of selling, or sells or offers for sale, on such day, at retail, clothing and wearing apparel, clothing accessories, furniture, housewares, home, business or office furnishings, household, business or office appliances, hardware, tools, paints, building and lumber supply materials, jewelry, silverware, watches, clocks, luggage, musical instruments and recordings, or toys, excluding novelties and souvenirs, shall, upon conviction thereof in a summary proceeding for the first offense, be sentenced to pay a fine of not exceeding one hundred dollars ($100), and for the second or any subsequent offense committed within one year after conviction for the first offense, be sentenced to pay a fine of not exceeding two hundred dollars ($200) or undergo imprisonment not exceeding...

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  • Kroger Co. v. O'Hara Tp.
    • United States
    • Pennsylvania Supreme Court
    • October 5, 1978
    ... ... and the Great Atlantic & Pacific Tea Company, Inc., a corporation, Appellants, v. O'HARA TOWNSHIP, ... Ferguson, 192 Kan. 607, 389 P.2d ... 775 (1964); City of Ashland v. Heck's Inc., 407 ... S.W.2d 421 (Ky.1966); ... similar patchwork fashion which leave us with a wide variety ... of statutory prohibitions, ... Industry, 461 Pa. 68, 334 A.2d 636 (1975), Bargain City ... U. S. A. v. Dilworth, 407 Pa. 129, 179 A.2d 439 ... ...
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    • United States
    • Pennsylvania Supreme Court
    • October 5, 1978
    ...of the laws." Baltimore & O. R. Co. v. Dep't of Labor and Industry, 461 Pa. 68, 334 A.2d 636 (1975), Bargain City U. S. A. v. Dilworth, 407 Pa. 129, 179 A.2d 439 (1962). While there may be a correspondence in meaning and purpose between the two, the language of the Pennsylvania Constitution......

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