17 Pa. Super. 331 | Pa. Super. Ct. | 1901
Opinion by
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
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 gen
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 ex
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 peo
Judgment affirmed.