46 South 52nd Street Corp. v. Manlin

*349 Dissenting Opinion by

Mr. Justice Bok:

Mr. Justice McBeide prepared this dissent before his term of office expired. I told him that I would join in it. Since he has left the Court before the majority opinion was handed down, I now adopt his dissenting opinion in order that it may be filed and published. It follows:

I.

This Court holds, quite properly it seems to me, that on the allegations of the complaint Brait’s had an interest separate and apart from that of other citizens in the community and therefore the court below, on such allegations, had jurisdiction.

The test of jurisdiction on such a complaint is the competency of the court to determine controversies of the general class to which the case presented for its consideration belongs; whether the court has power to enter upon the inquiry, not whether it might ultimately decide that it is unable to grant the relief sought in the particular case. Witney v. Lebanon City, 369 Pa. 308 , 85 A. 2d 106 ; Zerbe Township School District v. Thomas, 353 Pa. 162 , 44 A. 2d 566 ; Strank v. Mercy Hospital of Johnstown, 376 Pa. 305 , 102 A. 2d 170 .

The difficulty with plaintiffs’ position in this respect of the matter is that although the complaint alleged a trespass and a nuisance, its proof and the exhibits did not support such allegations and the court below, on sufficient evidence, specifically 'found that the maintenance of the newsstand, as reduced in size by its order, did not obstruct travel upon the sidewalk and did not materially block the display windows of Brait’s store from the view of vehicular traffic. 1 Hence, *350 its further maintenance would constitute neither a trespass nor a nuisance. Therefore, I believe that Brait’s is not in position (1) to vindicate the rights of the public under the Act of May 3, 1927, P. L. 515, §1, 17 P.S. §305 because it has not complied with the statutory procedure which is a mandatory condition precedent and (2) the findings of the court below, which we have not disturbed (even if we could), show that no private property rights of Brait’s has been violated.

• It would follow, therefore, that although Brait’s had the right to bring the suit the court below was bound to refuse relief.

II.

The opinion of the Court recognizes that the decree of the court below permitted “that daily Philadelphia newspapers only should be sold, the sale of out-of-town newspapers, magazines, comic books and pocket books being prohibited.” In my view such a restriction is a trade regulation in violation of the commerce clause, Article I, §8, cl. 3 of the Constitution of the United States. In addition, an ordinance which so discriminates would also be invalid. Sayre Borough v. Phil lips, 148 Pa. 482 , 24 Atl. 76 ; Shamokin Borough v. Plannigan, 156 Pa. 43 , 26 Atl. 780 . The opinion of the Court does not decide this question as I think it must.

III.

As I understand the opinion of the Court, it holds .that if the City passes an ordinance which affirmatively regulates newsstands on sidewalks, Brait’s (and others similarly situated) may not specially interfere unless the newsstand either (a) violates the ordinance, or (b) is so constructed or maintained that it constitutes a trespass upon its private property rights or is a private nuisance. If that be the correct interpretation of the opinion then I disagree with it only to the extent that it would require a new ordinance.

*351 The Code of General Ordinances of the City of Philadelphia in §9-205 is both a penal and regulatory ordinance. It provides (subsections 3 and 5) that the display or sale of any goods, wares, or merchandise, or placing of any stands upon the sidewalks of certain named streets constitutes a public nuisance and penalties are provided for such offenses. Neither 52nd Street nor Chestnut Street at this point are among those named. However, under subsection 2 it is specifically provided that these provisions do not apply to “(b) the display, offering for sale and sale of books, magazines and newspapers, and the placing and maintenance of stands for such articles; . . .” It would seem clear, therefore, that the City, by a specific ordinance, has said that the maintenance of such newsstands is not a public nuisance. In order that the rights of public passage (not only on the named streets but all others) be safeguarded and the proper rights of abutting land owners be protected, the ordinance regulates sidewalk sales in subsection 4, as follows: “(4) No goods, wares or merchandise, by themselves or in stands, whether for sale or otherwise, may be displayed, sold or placed on any part of the sidewalk of any street so as to reduce the footway space to less than 6 feet, except as provided by regulation of the Department of Streets, (a) The Department of Streets may by regulation change the width of footway space required, but no regulation shall require more than 8 feet nor allow less than 4 feet of free footway space, (b) Sidewalk sales shall be made only at the curb line, except that with the consent of the owner of the property abutting the sidewalk they may be made at the building line of the property.” 2

*352 As the chancellor correctly concluded in the present case, this express exemption of newspaper sales and newsstands from the prohibition against sidewalk sales and stands constitutes a sanction by the city of the use of sidewalk newsstands. We are not faced in this case with the question that would arise should someone attempt to conduct a purely private business on the sidewalk, i.e., one in which the public has no substantial public interest.

The lack of special safeguards in the ordinance to protect against abuses by unreasonably large or otherwise offensive newsstands should not operate to make the ordinance’s general authorization ineffective with respect to a newsstand which does not interfere with the public easement or the use of the abutting property owner’s premises. Where a newsstand constitutes a nuisance or is a trespass upon the use of the abutting property, that can be enjoined by the courts at the instance of such property owner. An issue of that nature “necessarily depends upon the circumstances of each case.” Walnut & Quince Street Corp. v. Mills, 303 Pa. 25, 32 , 154 Atl. 29, 32 (1931), appeal dismissed 284 U. S. 573 , 76 L. Ed. 498 , 52 S. Ct. 16 . It is time, enough for the court to concern itself with that problem when the interference is shown.

The question involved in this appeal came before the Court of Common Pleas No. 7 of Philadelphia County in Wilson v. McGill, 42 Pa. D. & C. 74 . That case decided in 1941 in favor of the defendant newsstand operator rested on the fundamental ground that a newsstand of reasonable size, properly maintained and not located so as to impede traffic, is neither a nuisance nor an unlawful trespass. In the light of this decision it is clear that at least for the past eighteen years the city has taken the position that newsstands are not in need of specific regulation or prohibition. It is not for this Court to inject itself into a matter which is essentially *353 legislative by a holding which would require the city to regulate where it finds that regulation is unnecessary. The Act of April 16, 1838, P. L. 626, §3, 53 P.S. §16436, left it to the City Council to regulate “as to them may seem expedient.” The discretionary power to license or regulate necessarily implies the discretionary power not to license or regulate unless such failure unreasonably interferes with the public interest, thus justifying judicial interference. The fact that Chicago, because of conditions peculiar to it, has seen fit to regulate newsstands does not mean that Philadelphia, where such conditions do not exist, must do likewise unless City Council so decides.

It is obvious that the long continued custom of maintaining newsstands on the public sidewalks of Philadelphia, fortressed by the ordinances of the city, demonstrates that the legislative arm of city government has considered such newsstands to be appropriate to the implementation of the right of the public voluntarily to conveniently purchase each of the many editions of newspapers. The case in support of magazines, which are not as ephemeral, is not as easy but does not present such difference as would require this Court to hold that the maintenance of a newsstand for the selling of magazines together with newspapers is a nuisance or trespass but that the sale of the latter alone is not. The legislative arm of city government made no such distinction, nor should we. The public should be permitted to enjoy the public easement in a manner that will facilitate distribution of the product of the printing press, not hinder it. The judicial function is ended when it is determined that the maintenance of the newsstand is neither a trespass nor a nuisance as pleaded in the complaint.

I dissent.

Finding No. 20 is as follows: “20. The newsstand in its present size does not obstruct travel upon the sidewalk in front of Beaus’ establishment, and does not materially block the display windows from the view of vehicular traffic moving South on 52nd Street.”

This stand, as reduced in size by tbe court below, even if it were not exempted as a newsstand, would not violate any of tbe regulatory provisions of tbis ordinance.