Commonwealth v. Zasloff

• Decision Date: 10 October 1939
• Docket Number: 209-1939
• Citation: 8 A.2d 801,137 Pa.Super. 96
• Parties: Commonwealth, Appellant, v. Zasloff
• Court: Pennsylvania Superior Court

8 A.2d 801

137 Pa.Super. 96

Commonwealth, Appellant, v. Zasloff

No. 209-1939

Superior Court of Pennsylvania

October 10, 1939

Argued April 28, 1939

Appeal from judgment of Q. S. Allegheny Co., May Sessions, 1938, No 506, in case of Commonwealth v. B. P. Zasloff.

Indictment for violation of Fair Sales Act.

The facts are stated in the opinion of the Superior Court.

Indictment quashed, before Long, P. J., specially presiding, Gardner and Richardson, JJ., opinion by Gardner, J. Commonwealth appealed.

Error assigned was the action of the court below in quashing the indictment.

Judgment affirmed.

Louis L. Kaufman, with him Andrew T. Park, District Attorney, for appellant.

Ben Paul Brasley, of Brasley, Rubin, Balter & Cole, with him Alexander I. Shaw, and David D. Blumenstein, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker Rhodes and Hirt, JJ.

OPINION

Hirt, J.

In this case the defendant, a retailer, was charged with violations of the so-called Fair Sales Act of July 1, 1937, P. L. 2672, specifically, that on three occasions he sold merchandise at less than the cost thereof to him. This appeal followed the order of court quashing the indictment and involves the question of the constitutionality of the act as an exercise of the police power of the State. Section 3 of the act provides: "Any retailer who shall advertise, offer to sell, or sell at retail, any merchandise at less than cost to the retailer, as defined in this act . . . . shall be guilty of a misdemeanor . . . ."

On the general principles involved, there can be little difference of opinion. We agree with appellant that the right to invoke the police power varies with time and conditions. "Certainly there is nothing fixed and static about the industries or businesses which may be regulated in the public interest, in the exercise of the police power of the State. As conditions change the right of regulation may be enlarged, so as to embrace other industries, or narrowed so as to take away the right of regulation previously exercised": Rohrer v. Milk Control Board, 322 Pa. 257, 186 A. 336. And periods of economic depression particularly are fertile times for the growth of trade practices which affect the well-being of the community. Normally the use of property and its disposition and sale are matters of private and not public concern. "The general rule is that both shall be free of governmental interference. But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm." The enactment of proper legislation to insure fair trade practices is undoubtedly within the police power of the State. Upon proper occasion and by appropriate measures the State may regulate a business in any of its aspects. If the legislative policy be to curb unrestrained and harmful competition by measures which are not arbitrary or discriminatory it does not lie with the courts to determine that the rule is unwise. Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940; Paramount Pictures v. Langer, 23 F.Supp. 890. But "a state may not, under the guise of protecting the public, arbitrarily interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them": Burns Baking Co. v. Bryan, 264 U.S. 504, 44 S.Ct. 412, 68 L.Ed. 813. The Legislature is primarily the judge of the necessity of the law, but its determination of what constitutes a proper exercise of its police power is not final and conclusive, but is subject to supervision by the courts, and the question in each case is whether the Legislature has adopted a statute in excess of reasonable discretion: Paramount Pictures v. Langer, supra.

We are convinced that the act in question offends against the due process clause of the constitution in that its scope is not sufficiently limited. The act is entitled, "An Act to insure and protect fair trade practices in distribution ." The body of the act is silent on the subject of its purpose. It is contended by appellant that by its terms it is made to apply only to improper sales by Section 5 of the act and that every transaction not within the exception is an unfair trade practice. That section excludes specific transactions in the following terms: "The provisions of this act shall not apply to sales at retail or sales at wholesale -- (a)...