21 Pa. Super. 643 | Pa. Super. Ct. | 1902
Opinion by
But one question is raised by the two assignments of error, to
The ordinance provides by section 2, “ that a curbstone market shall be held on Tuesdaj', Thursday and Saturday of each week; ” and by section 3, “that during the months of May, June, July, August and September, the market hours shall be between the hours of five and nine o’clock in the forenoon of the market days aforesaid, and during the months of October, November, December, January, February, March and April, the market hours shall be between the hours of five and ten o’clock in the forenoon of the market days aforesaid, provided, however, that occupants of shops or stands on the sidewalks within the borough may sell at all hours during secular days.” By section 4 “ Oak street is ordained to be the place where the curbstone market shall be held, extending along the line of the curbstone from Avenue to Sixth street; and upon application of persons desiring to occupy a stand or stall in said market, the clerk of the market shall set off stations or positions to those desiring to occupy them regularly.” Section 6 provides, “no market wagon or other vehicle containing articles for market, shall be permitted to occupy the street in any other position than being backed up to the curbstone, and no person attending market shall be permitted to occupy by a bench, or otherwise, more than three feet in width of the sidewalk, measured from the curbstone.” Section 8 “provides that the curbstone market
It is earnestly contended by the appellant that the ordinance is invalid owing to an unjust discrimination between' persons in the same business, namely: the occupants of shops or stands on the sidewalks within the borough may sell at all hours during secular days, while those who are authorized to sell under the curbstone market licenses are limited to Tuesday, Thursday and Saturday of each week; there is absolute prohibition against sales of cabbage, sweet potatoes, radishes, etc., from wagons, carts or other vehicles, on the streets to customers on Mondays, Wednesdays and Fridays, though the vendor may sell to local dealers, who are occupants of shops or stands, and these in turn may make legal sales of the articles thus purchased ; the system authorized by the ordinance creates a monopoly, is in restraint of trade, and is not a police regulation, and that the appellant had the right to sell products of the soil produced by his labor, anywhere within the borough.
The power to make needful regulations respecting markets and market daj^s and hawking and peddling of market produce and other articles, within the borough, is given to the appellee by sections 1 and 2 of the Act of April 3,1851, P. L. 320; and ever since Wartman et al. v. City of Philadelphia et al., 33 Pa, 202, the necessity for such reasonable regulations has been recognized by the Supreme Court. “There is nothing which more imperatively requires the constant supervision of some authority which can regulate and control the public market. A municipal corporation, comprising a town of any considerable magnitude, without a public market, subject to the regulations of its own local authorities, would be an anomaly which at present has no existence among us. The state might undoubtedly withhold from a town or a city the right to regulate its markets, but to do so would be an act of mere tyranny and a gross viola
It was deemed necessary for the general welfare of the borough to confine the sales to Oak street between Avenue and Sixth street and within the hours and days mentioned. The necessity for the general system, providing for the preservation of the health and comfort of the borough, the free and unobstructed use of its highways, and to insure the sale of only healthy food, and honest weights and measures, is conceded by the appellant. The resident dealer, who has a regular shop or stand, is not within the terms of the ordinance, and the fact that he is premitted to sell at a fixed place of business, which is regulated and provided for by other ordinances or acts of assembly, furnishes no reason why sales of perishable goods should not be regulated and confined to certain places and within certain times. The sale of such articles along the public streets is a proper subject for municipal legislation, as such unrestrained traffic tends to promote disorder, unsanitary conditions and is a fruitful source of imposition on purchasers by the sale of unwholesome food. It was held in Commonwealth v. Gardner, 133 Pa. 284, that farmers are not within the provisions of the Act of March 30, 1784, 2 Smith’s Laws, 99, forbidding peddlers
The assignments of error are overruled and the judgment is affirmed.