Philadelphia v. Brabender , 17 Pa. Super. 331 ( 1901 )

Opinion by

Rice, P. J.,

By express legislative enactment the city of Philadelphia has “ full power and authority to make, ordain, constitute and establish such and so many laws, ordinances, regulations and constitutions (provided the same shall not be repugnant to the laws and constitution of this commonwealth) as shall be necessary or convenient for the government and welfare of the said city” (Act of March 11,1789,2 Sm. Laws, 462); and is “ vested with all the power, rights, privileges and immunities incident to a municipal corporation and necessary for the proper government of the same : ” Act of February 2,1854, P. L. 21. It cannot be questioned that under this comprehensive grant the city has power to enact reasonable ordinances for the protection of the public in their right to the free and safe use of the highways of the city. Nor, so far as it relates to the casting of any paper, advertisement, handbills, circulars or waste paper upon the streets can it be questioned that the ordinance under consideration tends to, and is reasonably necessary for the accomplishment of that purpose. It tends not only to the cleanliness of the streets — a matter which deservedly is receiving much attention in the smaller as well as in the larger towns and cities, and which unquestionably, is a proper object of municipal legislation — but also to safety as everyone familiar with the action of horses knows.

But it is claimed that, so far as the ordinance relates to the casting of advertisements, circulars, handbills and waste paper into the vestibules of dwellings, it is invalid, because, to adopt the language of counsel, it relates to that, which, at most, is a private nuisance; an act done within the house line and to which only the owners or occupiers can object. We do not understand it to be claimed, and we do not think it could be declared as an unvarying rule, that because an act, not a common nuisance per se, is done within the house line of private premises it may not lawfully be prohibited by municipal ordinance. We may, however, concede the general principle — although we think it could be shown that this also has its exceptions — that private property must usually seek protection against trespassers from the general laws of the land, and the public tribunals, and not from the city by-laws: Horn v. People, 26 Mich. 221. But we do not regard this ordinance as intended for the protection of private property. Incidentally it may have the effect of relieving such owners, to some extent, from what, in common parlance is a nuisance, but that is not its primary purpose. Waste paper, circulars, handbills and the like lying upon the porch, in the vestibule or in the front yard of a private residence are not sightly things, but so long as they lie there they cannot be considered a public nuisance, and, for the purposes of this case, it may be conceded that a city ordinance cannot make them such. It is obvious, however, that the reason upon which the ordinance rests is not merely that the casting of these fugitive papers in the places described is an annoyance to the owners of the premises, but that the wind catches them up and casts them into the streets, where they lie or are blown about, .to the annoyance and inconvenience of the general public. This is liable to happen, not only to papers cast into the yards and upon the porches, but also, although perhaps in a less degree, to those cast into the vestibules of city dwellings, as is well shown in Judge Biddle’s opinion. It is a fact which did not require proof but is a matter of common knowledge, which the municipal authorities in enacting the ordinance, and the court in passing upon its reasonableness were justified in taking into consideration. See Commissioners v. Gas Co., 12 Pa. 318, at p. 322. There is a manifest difference between the ordinance discussed in People v. Armstrong, 73 Mich. 288 and the ordinance now under consideration. In the former the offense was made complete in itself by the mere act of distributing, or giving away, the enumerated articles upon the public streets. In the latter the thing prohibited is the casting of these papers in places, whence, naturally and without any further act of the wrongdoer or of any one else, they are liable to be, and probably will be, blown into the streets. “ It admits of no controversy that the city is armed with ample authority to remove from its streets and thoroughfares every obstruction or impediment to their free use as such by the public, unless authorized, by law: ” Philadelphia v. P. & R. R. R. Co., 58 Pa. 253. The power to remove includes the power to prevent by reasonable regulations which do not conflict with any provision of the federal or state constitution. So far as we can see, the purpose of this ordinance is to prevent the littering up of the streets and the frightening of horses and we cannot say that the means chosen are not adapted to, and reasonably necessary for, the full accomplishment of that purpose.

It is argued further, again adopting the language of counsel, that the ordinance “ utterly destroys the well known business of distributing circulars, and partially destroys the business of merchants by preventing them from advertising their wares in a cheap and expeditious manner thereby violating the section of the bill of rights which gives to the citizens the inherent and inalienable right to acquire, possess and protect property and reputation, and of pursuing their own happiness.” This argument is based on wrong premises. The ordinance does not prohibit the business referred to, nor does it prohibit merchants or others from advertising their .wares by means of circulars. It does not prohibit the delivery of them to individuals and it excepts from its operation circulars enclosed in addressed envelopes. Thus, whilst regulating the mode of distributing this form of advertisement, it does not absolutely prohibit it. Surely it cannot be contended that any man has an inalienable right to advertise his goods or business by circulars scattered broadcast trusting to chance to bring them to the hands of willing readers, but knowing also that quite as likely the unfavoring winds will sweep them into the traveled ways and gutters of the streets. But the power of the legislature or the delegated power of a muncipal corporation, which we think every one will concede, to prohibit that mode of distributing advertising circulars, and handbills is no clearer and rests upon no more sure foundation than the power to prohibit the distribution of these papers in the modes described in this ordinance.

Nor can we see that an invidious discrimination is made against any one by the ordinance. All persons are treated alike and subject to the same restrictions. True, the ordinance exempts from its operation newspapers and addressed envelopes, but evidently not for the purpose of favoring those who advertise in that way, but because in the judgment of the municipal authorities, there was not the same necessity .for prohibiting the delivery of newspapers and addressed envelopes to the persons for whom they are intended in that way. This discriminates against no persons or class of persons, and surely it is not for the defendant to say that the ordinance is void because it does not prohibit other acts equally as mischievous as the acts prohibited. “ The discriminations which are open to objection are those where persons engaged in the same business are subjected to different restrictions, or are held entitled to different privileges under the same conditions. It is only then that the discrimination can be said to impair that equal right which all can claim in the enforcement of the laws: ” Soon Hing v. Crowley, 113 U. S. 703; L. ed. Bk. 28, p. 1145.

The limitations of the powers conferred upon municipal corporations are that they must be exercised in a reasonable, lawful and constitutional manner. “ If these limitations are not trangressed courts cannot interfere with the ordinances of the municipality, for to the mayor and council must be left a reasonable discretion, and for the proper and wholesome exercise thereof they are accountable not to the courts, but to the peopie: ” O’Maley v. Freeport, 96 Pa. 24. “ Where the municipal legislature has authority to act, it must be governed, not by our, but by its own discretion; and we shall not be hasty in convicting them of being unreasonable in. the exercise of it:” Fisher v. Harrisburg, 2 Gr. 291; Wilkes-Barre v. Garabed, 11 Pa. Superior Ct. 355.

Judgment affirmed.