Appendix — Ullner v. Ohio

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APPENDIX A

Tue State or Onto, ApPeLLer, v. Kipp, APPELLANT.

THe State or On10, APPELLEE, v. MILLs, APPELLANT.

THe State or Onto, APPELLEE, v. Lerr, APPELLANT.

Tue State or Onto, APPELLEE, v. ULLNER,

APPELLANT. (Two cases.)

Sunday closing law—Section 3773.24, Revised Code, con

stiiutional—‘Work of necessity’’ construed—Classifi-

cations of activities prohibited on Sundays—Authority

of legislative body to make—Police power.

1. Section 3773.24, Revised Code, commonly called the Sun-

day closing law, is a valid, constitutional and enforce-

able enactment and is not vulnerable to the attack that

it is a measure for the enforcement or promulgation

of religious observances.

2. ‘‘Work of necessity or charity’’ is exempted from the

operation of Section 3773.24, Revised Code. The word,

‘‘necessity,’’ is an elastic one, and what constitutes

work of necessity is often a question of fact dependent

on the circumstances surrounding the particular case.

3. The lawmaking branch of a state government in the

exercise of its police power has the constitutional au-

thority to make classifications and selections of those

activities which it deems should or should not be pro-

hibited on Sundays, and, so long as those classifications

are not arbitrary, capricious or unreasonable and do

not discriminate among the same classes or kinds of

pursuits, they are valid.

(Nos. 35215, 35216, 35233, 35317 and 35318—Decided

April 30, 1958.)

Appeats from the Court of Appeals for Hamilton County.

ApprEat from the Court of Appeals fer Cuyahoga County.

Apress from the Court of Appeals for Butler County.

In the several causes now here for review the defendants,

storekcepers and one clerk, were charged with and con-

victed in various Municipal Courts of violating Seetion

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Appendix A

3773.24, Revised Code, commonly known as the Sunday

closing law or blue law, and all the convictions were

affirmed on appeal.

Causes Nos. 35215 and 35216 originated in the Cincinnati

Municipal Court. Defendant Kidd was a co-owner and

operator of a self-serve food market in the city of Cincin-

nati, and defendant Mills was clerk at the check-out counter

in such store. Purchases consisting of groceries, soap, an

electric iron and insect spray were made in the store on a

Sunday afternoon by police officers, who then advised Kidd

and Mills that they were being cited to court—Kidd for

opening and conducting a business on Sunday and Mills

for engaging in common labor on that day. Affidavits were

subsequently filed against the two. The cases were tried

concurrently, and some of the evidence introduced is to the

effect that the store was located in a neighborhood in-

habited and frequented by those who lacked facilities for

storing and preserving food.

Cause No. 35233 originated in the Cleveland Municipal

Court. Leff, the defendant, was president of the Three

Bears Super Stores, Iuc., an Ohio corporation, engaged in

a number of stores in selling a variety of products. The

store here involved was opened on a Sunday, sales of flash-

light bulbs were made and prosecution followed.

Causes Nos. 35317 and 35318 had their inception in the

Hamilton Municipal Court. One of the affidavits charges

the defendant, Ullner, with opening or causing to be opened

a building for the transaction of business on Sunday, and

the other charges him with requiring a person (his em-

ployee) to engage in common labor on Sunday.

Causes Nos. 35215 and 35216 were appealed on questions

of law from the Municipal Court to the Court of Appeals

for Hamilton County. Cause No. 35233 went from the

Municipal Court to the Court of Appeals for Cuyahoga

County. Causes Nos. 35317 and 35318 went from the

EFT ne AE Rc ITLL OIE EEN

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Appendix A

Municipa! Cour: to the Court of Common Pleas of Butler

County and from there to the Court of Appeals for that

county.

In all causes, the Courts of Appeals affirmed the judg-

ments of the lower courts. .

All the causes are now here for disposition on appeals as

of right and on the allowance of motions to require the

respective Courts of Appeals to certify the records.

Mr. James W. Farrell, .Jr., city solicitor, Mr. Robert J.

Paul and Mr. Lyle W. Castle, for appellee in cases Nos.

35215 and 35216.

Mr. Allen Brown, for appellants in cases Nos. 35215 and

35216.

Mr. Ralph S. Locher, director of law, Mr. Bernard J. Con-

way and Mr. Edward V. Cain, for appellee in case No.

35233.

Messrs. Wyner d& Wyner, for appellant in case No. 35233.

Mr. Clem M. Imfeld, Jr., acting director of law, Mr. John

W. Thomas, city solicitor, and Mr. Warren G. Bisdorf, for

appellee in cases Nos. 35317 and 35318.

Mr. Robert P. Goldman, Mr. Reuven J. Katz, Mr. Edward

Pierce, Messrs. Parton & Seasongood and Messrs. Fitton,

Pierce & Black, for appellant in cases Nos. 35317 and 35318.

ZiMMEKMAN, J. All the defendants challenge the con-

stitutionality and validity of Section 3773.24, Revised Code,

enacted by the General Assembly in the exercise of its

police power. That section, as it is pertinent here, reads

as follows:

‘‘No person who is over 14 years of age shall engage

in common labor or open or cause to be opened, a

building or place for transaction of business, or require

a person in his employ or under his control to engage

in common labor on Sunday... . —

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Appendix A

‘*This section does not apply to work of necessity or

charity, and does not extend to persons who conscien-

tiously observe the seventh day of the week as the

Sabbath, and abstain thereon from doing things pro-

hibited on Sunday.’’

It is axiomatic that courts may not inquire into the policy

which motivated the enactment of legislation, and as stated

in the first paragraph of the syllabus in the case of State,

ex rel. Dickman, a Taxpayer, v. Defenbacker, Dir., 164

Ohio St. 142, 128 N. E. (2d) 59, ‘‘an enactment of the

General Assembly is presumed to be constitutional, and

before a court may declare it unconstitutional it must ap-

pear beyond a reasonable doubt that the legislation and

constitutional provisions are clearly incompatible.”’

Sunday closing laws have generally been upheld as con-

stitutional and valid against a variety of attacks, such as,

that they constitute class legislation, that they are too

uncertain, that they violate the constitutional rights of

citizens as to equal privileges and immunities, that they

violate the right of life, liberty or the pursuit of happiness,

and that they violate the constitutional right of freedom

of religion. 50 American Jurisprudence, 803, Section 5; and

83 Corpus Juris Secundum, 800, Sunday, Section 3.

Manv years ago in a case involving a predecessor statute

to present Section 3773.23, Revised Code, Judge Minshall,

writing the opinion in the case of State v. Powell, 58 Ohio

St. 324, 3840, 50 N. E. 900, 901, 41 L. R. A. 854, made the

following observations:

‘The poliey of Sunday laws is based upon the ob-

served fact, derived from long experience and the

custom of all nations, that periods of rest from ordi-

nary pursuits are requisite to the well-being, morally

and physically, of a people. ... This is the foundation

and poliey of all statutes regulating the observance of

a day of rest; and whether the day selected is one

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Appendix A

consonant to the religious views of a portion of the

people or not, does not affect the validity of the regu-

lation, where no religious observance is enjoined.’’

Section 3773.24, Revised Code, in no way interferes with

the freedom of religious worship or the free exercise of

religious beliefs, nor was it designed to. As was said_by

Judge Thurman in the early case of Bleom vy. Richards, 2

Ohio St. 387, 392:

‘*Wisdom requires that men should refrain from

labor at least one day in seven, and the advantages of

having the day of rest fixed, and so fixed as to happen

at regularly recurring intervals, are too obvious to be

overlooked. It was within the constitutional compe-

tency of the General Assembly to require this cessation

of labor, and to name the day of rest. It did so by the

act referred to, and, in accordance with the feelings of

a majority of the people, the Christian Sabbath was

very properly selected. But, regarded merely as an

exertion of legislative authority, the act would have

had neither more nor less validity had any other day

been adopted.’’

Compare Stanfeal v. State, 78 Ohio St. 24, 84 N. E. 419,

14 Ann. Cas., 1388. And see 38 Ohio Jurisprudence 349,

Section 10.

It is to be noted that excepted from the operation of the

statute in issue is ‘‘ work of necessity or charity.’’ Obviously,

no fixed and unvarying definition of ‘**necessity’’ as used in

the statute can be given. That term is an elastie one. Cer-

- tainly, it does not mean that which is wholly indispensable,

but it does mean something more than that which is merely

necdful, desirable or convenient. For example, it is hardly

a necessity to open a place of business on Sunday to make

available to a purchaser an article which in the exercise of

reasonable foresight he conld have bought ow a preceding

day. To eseape the inhibitions of the statute, labor per-

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Appendix A

formed or work done must cone within the statutory excep-

tions, and whether it does is ordinarily a question of fact

largely dependent on the circumstances surrounding the

particular case. In the cases before us, all the lower courts

determined that the element of necessity was lacking and

we find no sufficient reason for overturning those determi-

nations.

Another argument made is that Section 3773.24, Revised

Code, is unconstitutional because it is a law for the promul-

gation of religious beliefs. True, that section by its terms

is not applicable to ‘‘persons who conscientiously observe

the seventh day of the week as the Sabbath, and abstain

thereon from doing things prohibited on Sunday.’’ How-

ever, the evidence in these cases under consideration does

not disclose that the business places involved closed on any

day of the week in the observance of a religious belief or

for any other reason, and, therefore, the defendants are

hardly in a position to attack the statute on the constitu-

tional grounds asserted. Humphrey Chevrolet, Inc. v. City

of Evanston, 7 Ill. (2d) 402, 131 N. FE. (2d) 70; State v.

Grabinski, 33 Wash. (2d) 603, 206 P. (2d) 1022. But to

face the problem squarely, we entertain the view, in line

with former decisions of this court already referred to and

with those of other courts which have interpreted statutes

similar to Section 3773.24, Revised Code, that such section

does not represent a measure to enforce or premulgate

religious observances.

The further argument is made that Section 3773.24, Re-

vised Code, has been so undermined by exceptions that it is

no longer sustainable. Onr attention is directed to the laws

which permit the sale of intoxicating liquors until 2:30

a.m. on Sundays and the sale of beer on that day having

an alcoholic eontent of no more than 3.2 per cent, to those

which sanetion the playing of baseball games and the exhibi-

tion of motion pictures after noon on Sundays, to those

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Appendix A

which sanction trapshooting on Sunday afternoons when

conducted under the auspices of a recognized club, and t »

others which sanction Sunday activities of a secular nature.

It is claimed that these exceptions operate in such a dis-

criminatory way as to nullify Section 3773.24, Revised Code,

and that such section constitutes a denial of the equal pro-

tection of the laws and repr sents class legislation.

Contentions of that sort ». + not new and have frequently

been rejected. Sunday observance laws are in force in most

of the states, and generally certain activities have been

excepted from their coverage. These Sunday laws are sus-

tained quite uniformly upon the theory that the selection of

subjects for exemption is peculiarly a matter of legislative

discretion. Fundamentally, discrimination is the very

“essence of classification and is not objectionable unless

founded on distinctions which the courts are compelled to

pronounce unreasonable or purely fictitious.

The holdings of probably a majority of the courts are

that the lawmaking department of a state has the constitu-

tional power to make classifications and selections of what

should or should not be prohibited on Sunday, so long as

those classifications are not arbitrary, capricious or ‘inrea-

sonable and so long as they do not discriminate among the

same classes or kinds of pursuits. See annotations, 46

A. L. R. 290, and 119 A. L. R. 752. For its reasoning, atten-

tion is directed to the case of Gundaker Central Motors,

Inc. v. Gassert, Jr., Dir., 23 N. J. 71, 127 A. (2d) 566 (ap-

peal dismissed for want of a substantial federal question,

354 U.S. 933, 1 L. Ed. [2d] 1533, 77S. Ct. 1397). If, for

instance, a law enforcement agency should invoke Section

3773.28, Revised Code, with respect to a football game

plaved after noon on Sunday, the legality of such aetion

might well be challenged, in face of the statute which

permits Sunday baseball. See Carr vy. State, 175 Ind. 241, 93

N. E. 1071, 32 L. R. A. (N.S.) 1190, holding the exemption

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Appendix A

of the game of baseball from the Sunday law a valid enact-

inent, and see annotation, 24 A. L. R. (2d) 813. At least

one court has held that engaging in a sport, specifically

baseball, does not constitute ‘‘labor’’ within the prohibition

of a Sunday law. Territory of New Mexico v. Davenport,

17 N. M. 214, 124 P. 795, 41 L. R. A. (N. S.) 407.

Some of the defendants place reliance on the cases of

Olds v. Klotz, 131 Ohio St. 447, 3 N. E. (2d) 371, and City of

Cincinnati v. Correll, 141 Ohio St. 535, 543, 49 N. KE. (2d)

412, both of which had to do with municipal ordinances as

distinguished from state laws. The ordinances involved in

the cited cases fixed the hours on week days during which

lawful business establishments might remain open, and this

court held such ordinances to be unreasonable, arbitrary

und discriminatory because they were opposed to basic

freedoms and rights constitutionally guaranteed and con-

stituted an unauthorized exercise of the police power, since

they bore no real and substantial relation to the health,

safety, morals or general welfare of the public.

In keeping with the above holdings, it is generally recog-

nized that a municipality in the exercise of its police power

may not impose limitations, burdens and restrictions whici

impair the right to conduct lawful businesses, where the

elements of public health, morals or safet~ are Jacking.

In contrast, Section 34, Article IT of -the Constitution of

Ohio, reads:

‘*Taws may be passed fixing and regulating the hours

of labor, establishing a minimum wage, and providing

for the comfort, health, safety and general welfare of

all employees; and no other provision of the Constitu-

tion shall impair or limit this power.’’ )

Section 3773.24, Revised Code, is an enactment adopted

by the General Assembly, is operative throughout the entire

state and sets aside a specifically designated day of each

week for the cessation of secular activities. Independent

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Appendix A

of the quoted constitutional provision, wisdom and common

experience have long demonstrated that one full day of

rest in seven is essential to the well being of all individuals,

and that its observance does have a vital bearing on the

health, safety, morals and general welfare of the citizenry.

We think the Klotz and Correll cases are clearly dis-

tingujshable from the instant ones, and that those cases

are in no way decisive here.

As a part of his inaugural address delivered on March 4,

1869, President Ulysses S. Grant said:

‘‘T know no method to secure the repeal of bad or

obnoxious laws so effective as ihcir stringent enforce-

ment.’’

Whether in this fast-moving modern age the Sunday

closing law is outmoded, obsolete and unrealistic and should

be eradicated is essentially a legislative and not a judicial

problem. Of course, the recognition and enforcement of

the law depend largely upon the sentiment in a locality and

the attitude of the law enforcement agencies of that com-

munity. But the fact /remains that, even though such law

may -be inappropriate to existing conditions, it is on the

statute books as a living piece of legislation, and there are

many who would strenuously uppose its repeal. See State

v. Cranston, 59 Idaho 561, 85 P. (2d) 682.

Various counsel attack the legality of the convictions of

the defendants on other grounds, including the claim that

the evidence addiuced is insufficient to sustain the convic-

tions. We have xaminéd these contentions and find them

without substantial merit.

In our opinioh, no good or adequate reasons ar» dis-

cernible for reversing the judgments of the Courts of

Appeals in the several causes under review, and they are,

accordingly, affirmed.

Judgments affirmed.

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Appendix A

Weycanpt, C. J., Stewart, Tart, Matruias, Bett and

HerBert, JJ., concur.

Tart, J., concurring. In my opinion, the strongest argu-

ments, advanced in these cases against validity of the Sun-

day closing law, were those based upon the decisions of

this court in Olds v. Klotz, 131 Ohio St., 447, 3 N. E. (2d)

371, and City of Cincinnati v. Correll, 141 Ohio St., 535, 49

N. E. (2d) 412. To paraphrase what was said by Bell, J.,

in his opinion in the latter case (page 542), almost every

statement made in declaring invalid the legislation involved

in those cases would be equally applicable in declaring the

Sunday closing law invalid.

The legislation in the Klotz case made ‘‘it unlawful! to

maintain and operate a retail food and grocery establish-

ment, open to the public for business except as between ,

the hours of 7 a. m. and 7:30 p. m. on Monday, Tuesday,”

Wednesday, Thursday and Friday’’ but did permit opera-

tions from 7 a. m. tu 9 p. m. on Saturdays and any day

preceding a holiday (131 Ohio St., 450). The legislation in

the Correll case made ‘‘it unlawful .. . to permit a barber

shop to be open for... business .. . other than upon the

days of the week and the hours of the day set forth’’

which were quite similar to those specified in the Klotz

legislation.

It may be argued that Section 34 of Article II of the

Ohio Constitution, which states that ‘‘laws may be passed

fixing and regulating the hours of labor,’’ will support the

Sunday closing law although it would not’ support the

ordinances involved in the Klotz and Correll cases. See

dissenting opinion of Jones J., in Wilson v. City of Zanes-

ville, 130 Ohio St., 286, 199 N. E., 187. However, paragraph

one of the syllabus in the Klotz case specifically states that

the ordinance there involved was ‘‘not a valid exercise of

the police power’’ and was ‘‘in contravention of the due

process clause of the Fourteenth Amendment to the federal

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Appendix A |

Constitution.’’ Hence, this distinction of the Klotz case

cannot be adopted without overruling in part paragraph

one of its syllabus. Also, the decision in the Correll case,

when read in the light of its syllabus, clearly indicates a

conclusion by the majority of the court in that case that

the legislation there involved was invalid because it bore

no ‘‘real and substantial relation to the health, safety,

morals or general welfare of the public.’’

Legislation, requiring the closing of a ‘‘place for trans-

action of business’’ during the daytime, as does the Sunday

closing law, ‘vould quite clearly appear to have a less

‘‘real’’ or ‘‘substantial relation to the health, safety, morals

or general welfare of the public’’ than would legislation

requiring such a closing during the nighttime, as did the

ordinances in the Klotz and Correll cases.

However, probably the real distinction between the hold-

ings of this court in the Klote and Correll cases and its

holdings in the instant cases is the extent of the ‘‘closing”’

required by the ordinances involved in those cases as com-

pared with the extent of the closing required under the

Sunday closing law. Under those ordinances, the estabish-

ments involved had to be closed not only on Sunday, as

under the Sunday closing law, but also during a very sub-

stantial number of the hours of each of the other days of

the week. In other words, the ordinances went much farther

in providing for what is referred to in the quotation in

the majority opinion from Minshall, J., as ‘‘ periods of rest”’

than did the Sunday closing law. Thus, although a legisla-

tive provision for ‘‘periods of rest’? may have some ‘‘real

and substantial relation to the health, safety, morals or

general welfare of the public’’ and hence represent a valid

exercise of the police power, there are limitations beyond

which it cannot go in providing for such ‘‘periods of rest’’

without becoming unreasonable and hence an invalid exer-

cise of tue police power.

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APPENDIX B

IN THE COURT OF APPEALS,

FIRST APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

Nos. 1081, 1082

STATE OF OHIO,

Plaintiff-A ppellee,

COLEMAN ULLNER,

Defendant- Appellant.

OPINION

(April 27, 1957)

APPEALS ON QUESTIONS OF LAW,

FROM COURT OF COMMON PI.EAS,

BUTLER COUNTY, OHIO.

Mr. Jonn W. Tuomas, Hamilton, Ohio, for Plaintiff-

Appellee.

Messrs. Paxton & Seasoncoop, Mr. Rosert P. Gotpman

and Mr. Revven J. Karz, Cincinnati, Ohio, and Mr.

Epwin B. Pierce, Hamilton, Ohio, for Defendant-

Appellant.

MatTTHEWs, J.

These two appeals from judgments of affirmance by the

Court of Common Pleas of convictions of the appellants

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Appendiz B

by the Municipal Court of the City of Hamilton, Ohio, for

viclation of Section 3773.24, Revised Code, are considered

together.

There were two affidavits filed against the defendants.

In one, he was charged with unlawfully opening or caus-

ing to be opened a building or place for the transaction

of business on a designated Sunday. In the other affidavit,

he was charged with requiring a person in his employ,

or under his control, to engage in common labor on a desig-

nated Sunday. a

The first error assigned is, that the cemplainc fails to

allege knowledge or intent to violate the law and, therefcre,

fails to charge an offense. Daugherty v. Vilage of Den-

nison, 11 C. C. (N.S.) 13, and Goldsmith v. State, 13 C. C.

(N. S.) 148, and City of Toledo v. Kohlhofer, 96 Ohio App.

355, are cited in support of that contention. As to the

first two cases, we think it sufficient to say that they were

decided long prior to the enactment of the Code of Criminal

Procedure Act, of which Section 2941.05, Revised Code, ts

a part, which expressly provides that it is sufficient for

an information or indictment to be in the words of the

statute defining the offense. The affidavits in these cases

answer that test. As to the last case (Kohihofer) we find

it entirely dissimilar. To start with, in that case, unlike

the affidavit in these cases, there was no averment that the

act had been done unlawfully. Next, the character of the

act was equivocal, per se. It could be done lawfully. It

became unlawful only when done knowingly and with pur-

pose or intent. In the cases at bar the acts could not be

done within the law, no matter what the purpose, except

in the instances set forth in the statute itself,

Next, it is urged that there is a failuré of proof that

the defendant-appellant opened the place for the trans-

action of business in the one instance, and in the other

instanee required the employee to perform common labor

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Appendix B

on Sunday. As this contention required a consideration of

the evidence, we have read the bill of exceptions and have

concluded that this contention is without merit.

The evidence shows that on the Sunday in question, what

_seems to have been a rather large business establishment

was being openly and actively operated. There was a corps

of clerks serving many customers. It is not denied that the

business was being operated and that it violated the terms

of Section 3773.24, Revised Code. But, it is asserted that

there is a failure of proof as to who was there at the

beginning of business on that Sunday, and who employed

those engaged and required the employees to perform the

labor on that Sunday.

It seems to us that this dilemma is more apparent than

real.

The evidence shows that this store was being operated

by a family corporation. There were only three stock-

holders—two brothers and a sister,—and all were actively

engaxed in this business. These three, either in person or

through their agents, did these things. The defendant was

present in the store at the time.

When we consider that those engaged in a common enter-

prise are each responsible for the acts of one another in

pursuance of the common enterprise, and we further con-

sider that under the law of Ohio (See. 1.17, R. C.) aiders

and abettors are criminally liable and may be charged as

principals, the speciousness of the contention is made mani-

fest.

Finally, the broad contention is made that Section

3773.24, Revised Code, infringes freedom of religion and,

therefore, violates both the State and Federal constitutions.

It is said that recent decisions of the Supreme Court of the

United States have broadened the ‘‘due process’’ clause

of the XIV Amendment of the United States Constitution,

so that it now includes all of the first ten amendments of

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Appendiz B

that instrument as limitations upon the power of the states,

and that this requires a reconsideration and re-appraisal!

of these Ohio cases sustaining this law (State v. Powell, 58

Ohio St., 324, et al.) in the light of these jater decisions of

the Supreme Court of the United States.

We fail to see the necessity for this re-appraisal. During

the entire life of the State of Ohio, its Constitution has

withheld from the legislature the power to pass any law

that established any religion or prevented any person from

worshipping his God according to the dictates of his own

conscience. Placing a double guard—federal as well as

state, if such is the case—neither strengthens or weakens

the prohibition.

Whether we consider the question in relation to the State

constitution or the Federal constitution, or both, it remains

the same, and that is, whether designating Sunday as the

day of rest is a violation of the freedom of religion guar-

anteed by the constitution, or any other constitutional right.

That a State in the exercise of its police power has a

right to make some regulation of work and rest is con-

ceded. That such a power exists has been recognized since

the beginning of history. And in our Country, we say ii is

a part of that power to make all manner of laws having a

reasonable relation to the health, morals, safety, general

welfare and general prosperity. They are just objects of

government and so long as the specifie Jaw has a reasonable

rélation to one or more of those objects, and operates

uniformly on all similarly situated, whether the law shail

be enacted is a matter of policy for the legislature to deter-

mine, and with which the courts are not coneerned. And

no constitutional limitation restricts the exercise of sueli

power. This law was passed in the exereise of that power

and the exception to the general prohibition cannot be said

to have no reasonable basis.-

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Appendix B

But it is said that while requiring the cbservance of one

day out of seven as a day of rest is a valid exercise of the

police power, that power does not authorize the fixing of a

specific day of the week as a day of rest, particularly when

the specific day happens to be the day designated by the

religion of the majority of the citizens as a day of rest,

such as the Christian Sabbath. It is difficult—we think

impossible-—to make even a convincing argument that such

a law has any relation whatsoever to religion, that is, any-

thing to do with man’s relation to his God. It requires

nothing. It imposes nothing. It dictates nothing. It leaves

him completely free to choose his religion and practice it

without let or hindrance.

If designating a specific week day as the day of rest 1s

beyond the power of the legislature, it must be for some

other reason. We do not think that the legislature is

required to assign a reason for fixing a specific day, rather

than leaving it to individual choice. We think valid reasons

could be stated. In passing legislation, it is a proper object

to consider the ease or difficulty of enforcement. Now, cer-

tainly the power to enforce the observance of a specifie day

of rest would be much easier than to enforce a day of rest

selected by the individual. It would seem that the latter

would not only be difficult, but in fact tmpossible to enforce.

And that fact that a large group is already observing a

specific day would be a proper thing to consider, and the

x 'eetion of that day for that reason would not interfere

with any one's freedom of religion.

For these reasons, the judgments are affirmed.

‘

Hitpenrasnt, P. J., & Lone, J., Coneur.

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APPENDIX C

STATE OF OHIO, BUTLER COUNTY

COURT OF COMMON PLEAS

No. 72917

THE STATE OF OHIO,

Plarntiff-A ppellee,

v.

COLEMAN ULLNER,

Defendant-Appellant.

No. 72918

THE STATE OF OHIO,

Pieintiff-Appellee,

v.

COLEMAN ULLNER,

Defendant-Appellant.

OPINION

(October 29, 1956)

Bou, J.

These twe cases are before this Court upon appeal

from the Municipal Court of Hamilton wherein in one case

the defendant was found guilty of unlawfully opening a

vnilding for the transaction of business on Sunday and iu

the other case, was found guilty of unlawfully requiring

employees to labor on Sunday. The defendant offered no

evidence and there is no dispute as to the facts.

18a

Appendix D

Practically all the questions of law raised by counsel

for defendant have been disposed of by various former

Court of Appeals and Supreme Court decisions.

The Constitutional questions have been passed on by our

Supreme Court in several cases and we do not deem it

fitting to attempt to overrule that Court.

We also have had the benefits of reading the trial Court’s

opinion which, in cur judgment, well states the Ohio law

on all of the points in question.

Because of this, we find no error prejudicial to the

defendant ana both judgments will be affirmed.

APPENDIX D

MUNICIPAL COURT

CITY OF HAMILTON”

BUTLER COUNTY, OHIO

Case Numbers 73473, 73474, and 73475

OPINION

THE STATE OF OHIO,

Plaintiff,

v.

HI-CODE TRADING CCGRPORATION (1 Case),

and

COLEMAN ULLNER (2 Cases),

Defendant.

Wessex, J. The Court has before it two charges against

Coleman Ul!lner, one for unlawfully opening a building for

the transaction of business on Sunday, the other for unlaw-

a

S

7th RO eRe eg. sfc Se Te,

Leen

et Lee rath eas

19a

Appendix D

fully requiring employees to labor on Sunday. The Third

case is against the Hi-Code Trading Corporacion, which

also charges unlawful opening of a building for the truns-

action of business on Sunday. Before the Court can dispose

of the case, it is necessary to dispose of numerous motions

which have been offered asking the Court to dismiss the

eases for various reasons. The Court believes that most

of these reasons are disposed of in the case of State v.

Haase as found in 97 Oh. Ap. at page 377. Council for the

defendant in this case questioned the constitutionality of

the act. The court in that decision said:

‘*We conclude, therefcre, that section 3773.24 of the

Revised Code is not in conflict with any of the provi-

sions of either the Federal or State Constitutions.’’

Practically all of the objections raised in this case had

been raised i» the case herein cited, including the fact that

a number of other businesses were operating on the same

Sunday on which a violation is charged to the defendant.

The Court in the Haase case says:

‘Tt is to be noted that except for attending the means

of public travel and engaging in sports or other forms

of public entertainment or recreation, the only permis-

sible Sunday business activities are works of necessity

and charity. The statutes of Ohio, therefore, do not

permit some businesses to operate on Sunday and deny

the same right to others of like character and the deci-

sions holding Sunday closing laws unconstitutional

because they permit some businesses to operate on

Sunday and deny the same right to others are not

applicabie.’’

The Court in the Haase case also says:

‘‘These cases are collected in a comprehensive note

in 46 A. L. R. 290 (see paragraph II, page 292). The

purpose of Sunday closing laws being in the interest

20a

Appendix D

of the public welfare, and in support of the religious

and devotional life of the “ommunity, providing for

a day of rest and possibly recreation, must be liberally

construed in favor of their validity and as being within

the constitutional powers of the Legislature.’’

That Court also quotes 38 Oh. Jur., 349, Section 9, in which

the author says:

‘‘Laws relating to the observance of Sunday have

been uniformly recognized as a legitimate exercise of

the police power. These laws, fixing regularly running

days_of rest for all secular pursuits, are within the

power of the Legislature to adopt such wholesome

regulations as may be necessary to promote the peace,

health, and well-being of seciety. In fact, the staie

may, as a police regulation for the promotion of the

physical, mental, and moral welfare of its citizens,

establish as a civil and political institution the first

day of the week as a day of rest and prohibit the per-

formance upon it of all labor or business except works

of necessity or charity. Accordingly, Sunday legisla-

tion, including both statutes and ordinances, prohibit-

ing common labor, barbering, baseball, hunting, etc.,

on Sundays, has been upheld.’’

The constitutionality of Ohio laws passed in the interest

of the observance of Sunday as a day of rest, has been

upheld by the Supreme Court in a number of cases. The

Haase case holds that a hardware business is not a work

of necessity. The Court believes the same is true of the

business operated by the defendant known as Rink’s Bar-

gain City.

The Court in the /laase case, therefore, concluded that

section 3773.24 of the Revised Code is not in conflict with

any of the provisions of either the Federal or State

Constitution.

In this case, the defendant proffered the testimony of a

long list of businesses which were in operation on the day

Sess SA a Beh

PIPER Rat Now ie

WINE IES

Huda sass

Crave’

OY a ck eat ome ay ch yee: , “hye

x oe SENET BRE ca wk BF nace

2la

Appendiz D

this violation occurred which evidence was rejected by the

Court. That same situation occurred in the Haase case,

and in that case, the Court said:

‘‘The claim of error in rejecting evidence as to prob-

able violation of the Sunday closing laws by others,

who were not prosecuted by the authorities, thereby

depriving defendant of equal protection under the

law, is not well taken.”’

From the record and the proffered evidence in this case,

it is probable that many violations o* the Sunday closing

laws are not challenged by the enforcement agencies of

the City of Hamilton. It was claimed in argument that the

provisions of the law in raany respects seem not to fit into

the pattern of modern living. It will come as a surprise

to many ardent fishermen that the law prohibits them from

enjoying such recreation on Sunday. No one, however,

need come to the defense of the need for Sunday closing

laws. In proper form they speak the will of the people.

They have had a long history of supporting the public will

that Sunday shouid be devoted to rest and religious deve-

tion. Such laws are to be found in the history of legislation

almost from the beginning of modern civilization, finding

their support no doubt from the Third Commandment,

‘‘Remember that thou keep holy the Sabbath Day.’’

The Court in that case quotes 83 Corpus Juris Secun-

dum, 800, Subdivision IT, regarding the regulation and

enforcement of Sunday observance under the heading of

‘*General History,’’ and we find the following:

‘‘The observance of Sunday is recognized by Con-

stitutions and legislative enactments, both state and

federal, and Sunday prohibitory laws are said to have

been enacted in all the states. Such laws are said to

have a reiigious or divine origin.

‘‘Sunday legislation is more than fifteen centuries old;

it originated in Rome in A. D. 321, when Constantine

22a

Appendix D

~ the Great passed an edict commanding all judges and

inhabitants of cities to rest on the venerable day of

the Sun. Sunday statutes were passed at an early date

in England and 29 Charles II ¢ 7 has been made the

basis of similar legislation in many of the states... .’’

It might be said that a greater acceptance by the people

of the fundamental purpose of these statutes would help

in solving many of our difficult social problems. The Court

says in the Haase case:

‘‘Courageous leader ip in bringing about a greater

understanding of their value would indeed be most

beneficial.

‘‘But these are matters which come exclusively within

the jurisdiction of law enforcing offcers, legislative

bodies and educational leaders. Courts must impar-

tially interpret the law in cases commenced within

their respective jurisdictions. The fact that one person

is prosecuted and another is not is a subject with which

the court cannet deal.’’

Also in that case, the Court quoted a decision of a Vermont

ease in which in dealing with the same question, that Court

said:

‘‘Tf so, it was a discrimination in the administration

of the law and not in the law itself, and manifestly

had no bearing on the question of respondents’ guilt or

innocence. One offender cannot excuse his conduct by

showing that someone else equally guilty has not been

prosecuted.”’

In the Ilaase ease, the Court said:

‘‘We find no error in excluding such evidence.’’

Counsel for the defendant makes much of the fact that

no where in the affidavit is the defendant charged with

eee Pars

oe

23a

Appendix D

knowledge and criminal intent. In the case of the City of

Toledo v. Kohthofer, 96 Oh. Ap. p. 355, in which several

other eases are cited in which they claim held that an

affidavit charging violation of an ordinance and omitting

therefrom the elements of knowledge and intent is insuffi-

cient to charge the offense. It seems to the Court that the

facts in that case are distinctly different from the facts in

the case at bar. In that case, the defendants were charged

with the sale of contraceptive devices which had both a

legal and. illegal use, and which in the opinion of the Court,

knowledge and intent was a necessary averment. How-

ever, in this case, itie Court believes that knowledge and

intent are not necessary, not being a part of the law itself

and the case failing within the class of cases in which crim-

inal intent is not a necessary element. Referring to this

same case cited by the counsel for the defense, the Court

said, quoting Morissette v. United States (1952), 342 U.S.,

246, 96 L. Ed. 288, 72 S. Ct., 249, in which there appears

an exhaustive review of the origin and development of case

law holding that proof of knowledge and intent in certain

regulatory statutes in aid of the police power is not

essential. And they say the doctrine of crime without intent

is roughly classified into eight divisions, and the eighth

division therein set out is violations of general regulations,

passed for the safety, health or weli-being of the com-

munity.

In the instant case, we have all ready shown that the

Courts have regarded the Sruday closing law as a valid

police regulation in the interest of health, safety or better-

ment of the community. So we believe the Sunday closing

law is one of those cases in which criminal intent is not a

necessary element of the offense, and that ground of the

motion is hereby overruied.

One of the distinetions in the Ohio ease cited by coursel

for the defense is that the ordinance for the violation of

24a

Appendiz D

which the defendant in that case was cited was patterned

after a state Jaw at a time when the state law did not require

knowledge. It seems that at the time of the arrest, the

state law had been changed to include the word knowledge,

but that the city ordinance wus not so amended. This we

believe constitutes a rather marked distinction between the

case cited by the counsel and the case at bar.

Counsel also in his brief makes much of the right to

freedom, of protection of property, and of rights of con-

science, education, necessity of religion, and claims that

the law is unconstitutional because it fails to provide for

those sects who might observe some day other than Sunday

or the seventh day, and mentioned incidentally, Moham-

medans and all that, but the Court in the Haase case, and I

think, rightfully so, holds that those are matters of defense

and counsel in the instant case, readily admitted that the

defendant is not of Mohammedan extraction or a member

of one of the other sects which claim some day other than

Sunday or the seventh day as the day on which to rest.

In the Haase ease, the Court said, quoting the case of

Strenglien v. State, 17 Oh. St. at p. 453, at page 461. The

Court quoted from one 1 Wharton’s American Criminal

Law, Section 378, as fellows:

‘* “Tf provisos and exceptions are contained in dis-

tinet clauses, it is not necessary to state in the indict-

ment that the defendant does not come within the

exceptions, or to negative the provisos it contains.’

‘For all these are matters of defense, which the prose-

eutor need not anticipate, but which are more properly, ..

to come from the prisoner.’ *’

ger? °

There is no doubt in the mind of the Court that con-

ducting a general merchandise business on Sunday, such

as Rink’s Bargain City, does not come within the exception

of **necessity’’ under the saving clause of the statute any

ere eh EP wy Se

os SO ee Cone

25a

Appendix D

more than would be true of carrying on a general business

of any kind.

The Court in the Hause case says, of course, these busi-

nesses are very necessary as part of our economy and social

requirements, but this is not the meaning of the words,

“work of necessity or charity,’’ as used in section 3773.24

Revised Code. People can by ordinary foresight provide

themselves with whatever goods seem convenient or neces-

sary for their needs on days of the week other than Sunday.

To provide against such business transactions on Sunday

was the very purpose of the law.

Counsel for the defendant also stressed the fact that the

law limiting to six the number of days which minors and

females may be employed without limitauiicn as to which

days are suspended to September Ist, 1355. ‘The Court

believes this has no application in the instant case inasmuch

as Sunday closing laws are not mentioned in that section

and consequently are not effected by that iegislation.

The situation is somewhat complicated as to the charge

against the Hi-Code Trading Corporation by the interlock-

ing of corporations as appears from the testimony in this

case. It appears that the officers of both corporations are

the same, that the Hi-Code Trading Corpor:.tion executed

a lease of the premises to the Famous Surplus Sales which

it is claimed is operating the business at Rink’s Bargain

City. However, the lease in question, having expired appar-

ently at the end of the period for which it was given and

no further corporat: 1 action on the part of either corpora-

tion in leasing the »remises to itself appears anywhere

in the minutes, so aat the Court is left with the impres-

sion that it made little difference whether the lease was

renewed or not, because all of tne folks involved are the

same folks regardless of which way it went. The testimony,

however, indicates that Rink’s Bargain City is still being

operated by Famous Surplus Sales, although Hi-Code

26a

Appendix D

Trading Corporation owns the premises, and under what

arrangement, the Court does not kno-vy However, the Court

feels that proof beyond a reasonable doubt against the

Hi-Code Trading Corporation has not been made out, and

that case will be dismissed. ‘a

One other point has been raised by counsel for the de-

fendant, and that is that the State failed to prove that the

defendant is a person over the age of fourteen years.

However, the Court believes there is ample evidence in

_the case to infer and which proves beyond a reasonable

doubt that the defendant is a person over fourteen years

of age. One fact is that he executed a lease of the prem-

ises to the Famous Surplus Corporation and accepted the

lease as President of the other corporation, and it seems

tc the Court that only a person of full age would accept

such an instrument as valid on its face. If the Court is

to infer it was executed by a person under fourteen years

of age, certainly the lease has no effect on the decision.

With all these facts in mind, the Court finds the defend-

ant, Coleman Ullner, guilty as charged in the two affidavits.

The sentence of the Court is that he be fined twenty-five

dollars ($25.00) and costs in each case.

Wee aay tr emaeeinne as Liles BOA ascuee

2a. .

Mie APPENDIX E

” Judgment Entries in the Supreme Court of Ohio

THE SUPREME COURT OF THE STATE OF OHIO

| THE STATE OF OHIO

CITY OF COLUMBUS

No. 35317

January Term, A.D. 1958

To-wit: Wednesday, April 30, 1958

STATE OF OHIO,

Appellee,

COLEMAN ULLNER,

Appellant.

Appeal from the Court of Apreals of Sutler County

This cause came on to be heard upon the transcript of

the Record of the Court of Appeals of Butler County, and

was argued by Counsel. On consideraticn whereof, it is

ordered and adjudged by this court, that the judgment of

the said Court of Appeals be, and the same is hereby,

affirmed; and it appearing to the Court that there were

reasonable grounds for this appeal it is ordered that no

penalty be assessed herein.

It is further ordered that the appellee recover from the

appellant its costs herein expended taxed at $——-——_.

28a

Appendiz F

ORDERED, That a special mandate be sent to the Court

of Common Pleas of Butler County, to carry this Judg-

ment into Execution.

ORDERED, That a copy of this entry be certified to

the Clerk of the Court of Appeals, of Butler County, ‘‘for

entry.’’

(The judgment entry was identical in case No. 35318.)

APPENDIX F.

Entries of the Supreme Court of Ohio Denying

Application for Rehearing

THE SUPREME COURT OF THE STATE OF OHIO

THE STATE OF OHIO

CITY OF COLUMBUS

No. 35317

January Term, A.D. 1958

To-wit: May 21, 1958

STATE OF OHIO,

Appellee,

COLEM.aN ULLNER,

Appellant.

Rehearing Docket

Upon considerstion of the above application ‘or rehear-

ing, it is ordered by che Court that rehearing be, and the

same hereby is, denied.

(The entry was identical in case No. 35318.)

29a

APPENDIX G

[SUNDAY PROHIBITIONS]

§ 3773.23 Sunday prohibitions. (GC ‘ 13049)

No person shall, on Sunday, participate in or exhibit

to the public with or without charge for admittance

in a building, room, ground, garden, or other place,

a theatrical or dramatic performance or an equestrian

or cireus performance of jugglers, acrobats, rope danc-

ing, or sparring exhibition, variety show, negro min-

strelsy, living statuary, ballooning, baseball playing

in the forenoon or exhibi‘’'on of motion pictures

in the forenoon. No person shall participate in keep-

ing a low or disorderly house or resort, er sell, dispose

of, or give away ale, beer, porter, or spirituous liquor

in a building appendant or adjacent thereto, where such

show, performance, or exhibition is given, or house or

place is kept. Complaint must be filed under this

section within twenty days after a violation thereof.

§ 3773.25 Hunting or fishing on Sunday. (GC

§ 13048)

No person over fourteen years of age shall engage in

sporting, rivting, quarreling, hunting, fishing or shoot-

ing on Snnday. Complaint must be filed under this

section within ten days after a violation thereof.

§ 3773.26 Prohibition against having hunting imple-

ments on Sunday; exception. (GC § 13053)

No person shall, in the open air on Sunday, have

implements for hunting or shooting with intention to

use them for that purpose. The use of hunting imple-

ments in trap shooting on Sunday afternoons when

conducted under the auspices of a recognized hunt, trap

shooting, rifle or game club of this state, is permitted.

$ 3773.99 ..

(O) Whoever violates section 3773.23 of the Revised

(‘ode shall be fined not more than one hundred dollars

or imprisoned not more than six months, or both.

(P) Whoever violates section 3773.24 of the Revised

(‘ode shall be fined twenty-five dollars for a first of-

fense; for each subsequent offense sach person shall

30a

Appendiz G

be fined not less than fifty nor more than one hundred

dollars and imprisoned not less than five nor more

than thirty days.

(Q) Whoever violates section 3773.25 of the Revised

Code shall be fined not more than twenty dollars or

imprisoned not more than-twenty days, or both.

(R) Whoever violates section 3773.26 of the Revised

Code shal! be fined not less than twenty-five nor more

than two hundred doilars.

§ 4107.46 Total hours and days of employment.

(A) No employer shall employ a female for more

than forty-eight hours in any one week or eight hours

in any one day, or on more than six days in a calendar ~

week, except that:

(1) In manufacturing establishments a female may

not be employed more than forty-eight hours in any

one week cr nine hours in any day, or on more than

six days in a calendar week;

(2) A female over eighteen years of age working in

an office may be employed ten hours on any one day

of the calendar week, provided that such ten hours

shali fall within twelve consecutive hours;

(3) In mercantile establishments a female over

eighteen years of age may be employed ten hours on

any ene day of the calendar week, and for ten hours

on the days preceding the thirtieth day of May, known

as Decoration or Memorial day, the fourth of July,

known as Independence day, the dvs designated by

proclamation as Thanksgiving day, the twenty-fifth

of December, known as Christmas, and the first of

January, known as New Year’s day; and not to exceed

eight hours on any other day;

(4) In any one week during the first six months of

the year, and in any two weeks during the last six

months of the year, a female employed in mercantile

establishments may work not to exceed ten hours in

any one day and fifty hours in the week so selected;

(5) In laundry and dry cleaning establishments a

female shall be permitted to work nine hours per day

any two days of the calendar week providing the regu-

Pe et ue CR eae

3la

-

Apperdiz G

lar work week is not in excess of forty-eight hours,

except that a total of fifty hours may be worked in

the week immediately preceding or during the week

in which is included one of the following: New Year’s

day, Good Friday, Memorial day, Fourth of July,

Labor day, Thanksgiving day, and Christmas day;

(6) The employment of a female in excess of eight

hours, but not to exceed nine hours in any one day,

shall be permitted in cases not otherwise covered in

this section, in sections 4107.43, 4107.47, and 4109.10

to 4109.20, inclusive, of the Revised Code, provided

that no extension of the maximum hours per week or

days per week shall be authorized.

(B) If the work during any one day is not continu-

cus but is divided into two or more periods, the em-

ployer shall provide that all such periods fall within

ten consecutive hours, exeept that:

(1) in the case of hospitals organized and operated

not for profit all such periods shall fall within twelve

consecutive hours;

(2) For employees engaged in the operation of a

communications company all such periods shall fall

within thirte: n conseeutive hours;

(3) In hotels and restaurants all such periods shall

fall within twelve consecutive hours;

(4) In mercantile establishments all such periods

shall fal) within twelve Lours on the day a ten hour

work day is permitted.

(C) A female may be employed in more than one

place of employment provided the aggregate number

of hours such female is employed does not exceed eight

in any one day or forty-eigiitt in any one week.

(DD) Sections 4107.42, 4107.45 to 4107.53, inclusive,

and 4109.22 of the Revised Code do not apply to:

(1) fhe employment of females in agricultural field

occupations or in domestic service in private homes;

(2) The employment of females by a public utility

company, any carrier subject to part I of the Inter-

state Commerce Act, or a co nmunications company,

during periods of emergency caused by fire, flood,

epidemic, or other public disaster ;

32a

Appendiz G

(3) The work of females over twenty-one years of

age earning at least forty-five dollars a week in bona

fide executive, professional, supervisory, or adminis-

trative positions where the duties of such require the

exercise of discretion;

(4) The employment of women in the professions of

medicine, registered nursing as defined in section

4723.06 of the Revised Code, pharmacy, law, teaching,

and socicl work;

(5) The employment of females over twenty-one

years of age in mercantile establishments and com-

munications companies except in cities;

(6) The work of professional employees in hospitals,

such as graduate and student nurses, anesthetists, tech-

nicians, graduate and student dietitians, and internes;

provided that no restrictions as to hours of labor of

females over twenty-one years of age shall apply to

canneries or establishments engaged in preparing for

use agricultural or horticultural perishable foods dur-

ing the growers’ harvest season when they are enge ged

in canning the farmers’ perishable products.

(E) No employer shall emnploy a female for a period

of more than five hours of continuous labor unless

such period is broken by a meal period of a. least

one-half hour. For the purpose of this section no

period of less than thirty minutes shall be deemed

to interrupt a continuous period of work; provided

that a female over twenty-oue years of age employed

by a public transportation company to operate street

cars, trackless trolleys, or motor coaches shall be per-

mitted to work and operate such vehicles for the same

hours and periods as are permitted by law for male

workers engaged in the same kind of employment but

not in excess of forty-eight hours in any one week.

$4109.22 Employment of minors; hours per day

and days per week; exceptions.

(A) No boy under eighteen shall be employed, per-

mitted, or suffered to work in, about, or in connection

with any establishment or occupation named in section

4109.10 0. the Revised Code:

-

—

33a

Apnendiz G

(1) For more than six days in any calendar week;

(2) For more than forty-eight hours in any calendar

week;

(3) For more than eight hours in any one day;

(4, Before six a.m. or after ten p.m.

(B) No girl undex eighteen sha!l be employed, per-

mitted, or suffered to work in, about, or in connection

with any establishment or occupation named in section

4109.10 of the Revised Code:

(1) For more than six days in any calendar week;

(2) For more than forty-eight hours in any calen-

dur week;

(3) For more than eight hours in any one day;

(4) Before seven a.m. or after nine p.m.; except

that:

(a) In mercantile establishments minors sixteen to

eighteen may be employed for ten hours on any one

day of the week and also on the days specified in

section 4107.46 of the Revised Code on which females

may be employed ten hours in mercantile establish-

ments;

(b) In mercantile establishments a girl sixteen to

eighteen may be employed two evenings in a calendar

week until nine-t .irty p.m.

(C) No minor under sixteen shall be employed, per-

mitted, or suffered to work in, about, or in connection

with any establishment or occupation named in section

4109.10 of the Revised Code before seven a.ia. or after

six p.m.; except that: (1) In bowling centers a boy

over sixteen may be employed as a pinsetter until

eleven p.m.

(D) The presence of such child in any establishment

during working hours is prima facie evidence of its

employment therein. In estimating such periods the

time spent at different employments or under differ-

ent employers shall be ccnsidered as a whole and not

separately.

(E) No restrictions as to hours of labor of persons

sixteen or over shall apply to cannevies or establish-

ments engaged in preparing for use agricultural or

60

Appendir A— Acts of Assembly Involved

incorporation of the proposed Authority will be filed wita

the Secretary of the Commonwealth of} Pennsylvania. No

such municipality shall be required (any law te the con

trary notwithstanding) to make any other publication of

such resolution or ordinenees under the provisions oO! ex-

isting law. The aforesaid publication of such notice shall

be sufficient compliance with such laws.

B. On or before the day specified in said notice the

municipal authorities shall file with the Seeretary of the

Commonwealth articles of incorporation together with

proof of publication of the notice as afor said. Said art:

cles of ineorporation shall set forth:

’

(a) The name of the ‘‘ Authority.’

(b) A statement that sach Authority is formed

under this act.

(c) A statement whether any other \uthority has

been organized under this act or under the act, approved

the twenty-eighth day of June, one thousand nine hundred

thirty-five (Pamphlet Laws 463), and is in existenee in or

for the incorporating municipality or municipalities, ex-

cept that where any one or more of the municipalities

have already joined with other municipalities not com

posing the same group in organizing @ joint Authority,

the application shall set forth the name of the Authority

theretofore created, together with the names of the munic

ipalities joing therein.

(d) The name of the incorporating municipality or

municipalities, together with the names and addresses of

its municipal authorities, and

(e) The names, addresses and term of office of the

first members of the board of said Authority.

SESE SABE SE dt

ee eee er oe

Mid wibusaed

RRR cet TK ias ARN Sa

Z

e

61

Appendix A—Aects of Assembly Involved

All of whieh matter shall be determined in accordance

With the provisions of this act. Said articles of incorpe-

ration shall be exeented by each ineerporating municipal:

ity by its proper officers and under its niuuniei pal seal.

(. If the Secretary of the Commonwealth finds that

the articles of incorporation conform to law, lie sliall forth

with, but not prior to the day specified in the aforesaid

notice, endorse his approvar thereon, and when all proper

fees and charges have been paid, shall file the articles and

issue a certificate of incorporation, to which shall be at-

tached a copy of the approved articles. Upon the issuance

of such certificate of Incorporation by the Secretary of the

Commonwealth, the corporate existence of said Authority

shall begin. Said certificate of incorporation shall be con-

clusive evidence of the fact that such Authority has been

incorporated, but proceedings may be instituted by the

Commonwealth to dissolve any Authority whieh shall

have been formed without substantial complance with

the provisions ef this section.

), When the Authority has been organized and its

officers elected, the secretary shall certify to the Seere-

tary of the Commonwealth the names and addresses of its

officers, as well as the principal office of the Authority.

Any change in the location of the principal office shall

likewise be certified to the Seeretary of the Commonwealth

Within ten (10) days after such change. Any Authority

heretofore ereated under the laws of the Commonwealth

of Pennsylvania, in addition to powers granted or con-

ferred upon said Authority, shall possess all the powers

provided in this act. 1945, May 2, P. L. 382, See. 5; 1947,

June 12, P. L. 571, See. 1; 1952, Jan. 21, P. L. (1951) 2188,

See. 2.

Appendix A—Acts of Assembly Involved

Sec. 305. Amendment of articles

A. An Authority, in the manner heremafter pro

vided, may from time to time, amend its articles:

(1) To adopt a new name;

(2) To add a provision therein imereasing its term

of existence to a date not exceeding fifty vears from: the

date of approval of the articles of amendments or te

modify any provision thereof limiting its terms of exist

ence, by increasing such term te such a date;

(3) To change, add to, or diminish its powers or

purposes, or to set forth different or additional powers or

purposes;

(4) To increase or decrease the number of members

of the board of the Authority, to reapportion the repre

sentation on the board of the Authority, and to revise the

terms of office of such members, all in such manner as

shall not be inconsistent with the provisions of section

seven of this act.

e x * * - * * 7 ‘

Sec. 306. Purposes and powers; general

A. Every <Authority ineorporated under this act

shall be a body corporate and politic, and shall be for the

purpose of acquiring, holding, constructing, improving,

maintaining and operating, owning, leasing, either in thie

capacity of lessor or lessee, projects of the following kind

and character, buildings to be devoted wholly or partially

for public uses, including publie school buildings, and for

revenue-producing purposes; transportation, marketing,

shopping, terminals, bridges, tunnels, flood control proj-

ects, highways, parkways, traffic distribution centers.

parking spaces, airports and all faciiities necessary or

Rueda eS Piste

3

4

;

i

3

2

63

App ndix A--Aets of Assembly Involved

incident thereto, parks, recreation grounds and facilities,

sewers, sewer systems or parts thereet, sewage treatment

works, including works for treating amd dispostig of i

dustrial waste, facilities ana equipment for the collection,

removal or disposal of ashes, garbage, rubbish and other

refuse materials by incineration, land fill or other methods,

steam heating plants and distribution systems, incinerator

plants, waterworks, water supply works, water distribu-

tion systems, swimming pools, playgrounds, lakes, low

head dams, hospitals, motor buses for public use, when

such motor buses are to be used within any municipality,

and subways: Provided, That an Authority created by a

scliool district or school districts shall have the power

only to aequire, hold, construct, improve, maintain, oper-

ate and lease publie school buildings and other school

projects aequired, constructed or improved for publie

<chool purposes. The purpose and intent of this act being

to benefit the people of the Commonwealth by, among

other things, inereasing their commerce, health, safety and

prosperity, and not to unnecessarily burden or interfere

with existing business by the establishment of competi-

tive enterprises, none of the powers granted by this aet

sliall be exereised in the construction, improvement, main-

tenance, extension or operation of any project or projects

which in whole or in part shall duplicate or compete with

existing enterprises serving substantially the same = pur-

poses. This limitation shall not apply to the exercise of

the powers granted hereunder for facilities and equipment

for the collection, removal or disposal of ashes, garbage,

rubbish and other refuse materials by incineration, land

fill or other methods, if each municipality organizing or

intending to use the facilities of an Authority having such

powers shall declare by resolution or ordinance that it is

64

Appendir A--Acts of Assembly Involved

desirable for the health and safety of the people of suen

municipality that it use the freiities of the Muthority, and

if any contract between such municipality and any other

person, firm or corporation for the collection, removal or

disposal of ashes, garbage, rubbish and other refuse mate

ric! has by its terms expired or is terminable at the op-

tion of the municipality or will expire within six months

from the date such ordinance becomes effective. The

municipality or municipalities organizing such an Au

thority may, in the resolution or ordinance signifying

their intention so to do, or from time to time by subse-

quent resolution or ordinance, specify the project or proj-

ects to be undertaken by the said Authority, and no other

projects shall be undertaken by the said Authority than

those so specified. If the municipal authorities organizing

an Authority fail to spevify the project or projects to be

undertaken, then the Authority shall be deemed to have

all the powers granted by this act.

B. Every Authority is hereby granted, and_ shall

have and may exercise all powers necessary or convenient

for the carrying out of the aforesaid purposes, including

but without limiting the generality of the foregoing, the

following rights and powers:

(a) To have existence for a term of fifty vears and

for such further period or periods as may be provided in

articles of amendment approved under subsection FE. of

section three point two.

(b) To sue and be sued, implead and be impieaded,

compiain and defend in all courts.

(c) To adopt, use and alter at will, a corporate seal.

(d) To acquire, purchase, hold, lease as lessee and

use any franchise. property, real, personal or mixed, tangi-

1 eee te ne te

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ble or intangible, or any interest therein Necessary or de-

sirable for carrying ont the purpeses of the Authority,

and to sell, lease as lessor, transfer ane dispose of any

property or interest therein at any time acquired by it.

(e) To acquire by purchase, lease or otherwise, and

to construct, improve, maintain, repair and operate

projects.

(f) To make by laws for the management and regu

lation of its atfairs.

(2) To appoint officers, agents, employes and serv

ants, to preseribe their duties and to fix their compensa-

tion,

(h) To fix, alter, charge and collect rates and other

charges in the area served by its facilities at reasonable

and uniform rates to be determined exelusively by it, for

the purpose of providing for the payment of the expenses

of the Authority, the construction, improvement, repair,

maintenance and operation of its facilities and properties,

the payment of the principal of and interest on its obliga-

tions, and to fulfill the terms and provisions of any agree-

ments made with the purchasers or holders of any such

obligations, or with the municipality incorporating or

municipalities which are members of said Authority or

With any municipality served or to be served by said

Authority, and to determine by itself exclusively the serv-

ices and improvements required to provide adequate, safe

and reasonable serviee, including extensions thereof, in

the areas served: Provided, That if the serviee area in-

cides more than one municipality, the revenues from any

project shall not be expended directly or indirectly on any

other project, unless such expenditures are made for the

benefit of the entire service area. Any person questioning

66

Appendis A Aets of Assembly Involved

the reasonableness or uniformity of any rate fixed ba any

Authority or the adequacy, safety and reasonableness of

the ANuthority’s services, tmeludine extensions thereot,

Inay bring suit against the \uthorityv in the court of ecm

mon pleas of the county wherein the project is located, or

if the project is located in more than one county then in

the court of common pleas of the county wherein the prin

cipal office of the project is loeated. The court of com

mon pleas shall have exclusive jurisdiction to determine

all such questions involving rates of serviee. Appeals may

be taken to the Superior Court within thirty days after

the court of common pleas has rendered a final decision.

(i) To borrow money, make and issue negotiable

notes, bonds, refunding bonds, and other evidences of in-

debtedness or obligations (herein called ‘*honds’’) of the

Authority, said bonds to have a maturity date not longer

than forty years from the date of issue, except that no

refunding bonds shall-have a maturity date later than the

life of the Authority, and to secure the payment of such

bonds or any part thereof by pledge or deed of trust of all

or any of its revenues and receipts, and to make such

agreements with the purchasers or holders of such bonds,

or with others in connection with any such bonds, wirether

issued or to be ssued, as the Authority shall deem advis-

able, and in general to provide for the security for said

bonds and the rights of the holders thereof, and in respect

to any project constructed and operated under agreement

with any Authority or any public Authority of any ad-

joining state, to borrow money and issue such notes, bonds

and other evidences of indebtedness and cbligatioas

jointly with any such Authority.

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Apprudie A-~Aets of Assembly Tnralied

(j) To make contracts of every name and nature

and to execute all instruments neeessary or convenient

lor the carrying on ef its business.

4 (i) Without fimitation of the foreseing, te horrow

14 money and accept grants from and to enter into contracts,

: leases or other transactions with any Federal agency,

e Commonwealth of Pennsvivania, niunieipalityv, selool dis-

+3 triet, corporation or Authority.

4

. (1) To have the power of eminent domain,

(ti) To pledge, liypothecate or otherwise encumber

all or any of the revenues or reeeipts of the Authority as

a

| security for all or any of the obligations of the Authority.

(n) To do all acts and things necessary or conven-

tent Yor the promotion of its business and the general

welfare of the Authority, to carry out the powers granted

|

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to it by this act or any other aets.

ns

AI

ae (0) To contract with any municipality, corporation,

i orany pubhie Authority of this or any adjoining state, on

4 sich terms as the said Authority shall deem proper, for

J the construction and operation of any project which is

Retin

partly in this Comressewealth and partly in such adjoining

state,

(p) To enter into contracts to supply water and

other serviees to and for municipalities that are not mem-

bers of the Authority, or to and for the Commonwealth of

Pennsylvania, municipalities, school districts, persons or

authorities, and fix the amount to be paid therefor.

(4) To enter into contracts of group insurance for

the benefit of its employes, and to set up a retirement or

pension fund for such employes.

o¢ .

ChB cep ALG GORD iS Stil a Sisto be.

68

Appendix A—Acts of Assembly Involved

(r) To charge the cost of constriction of any sewer

constructed by the Authority against the properties bene

fited, improved or accommodated thereby to the extent of

euch benefits. Sueh benefits shall be assessed in the tian

ner provided by section eleven of this aet for the exercise

of the right of eminent domain.

(s) To charge the cost of construction of any sewer

constructed by the Authority against the properties bene-

fited, improved or accoumnodated thereby gecording to the

foot front rule. Such charges shall be based upon the foot

frontage of the properties so benefited, anc shall be a lien

against such properties. Such charges may be assessed

and collected and such liens may be enforced in the man-

ner provided by law for the assessment and collection of

charges and the enforcement of liens of the municipality

in which such Authority is located: Provided, That no

such charge shall be assessed unless prior to construction

of such sewer the Authority shall have submitted the plan

of construction and estimated cost to the municipality in

which such project is to be undertaken, and the munici-

pality shall have approved such plan and estimated cost:

And provided further, That there shall not be charged

against the properties benefited, improved or aecommo-

dated thereby an aggregate amount in excess of the esti-

mated cost as approved by the municipality.

‘t) To charge a tapping fee whenever the owner of

any property connects such property with a sewer system

constructed by the Authority which fee shall be in addition

to anv charges assessed and collected against such prop-

erty in the construction of such sewer by the Authority or

any rental charges assessed by the Authority.

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Appendir Ao Mets of Assembly Involeed

’

C. The Authority shall have no power at ats time or

in anv inanner to pledge the eredit or taxing pewer af the

Commonwealth of Penusvivenia or any politieal subdivi

ston, nor shall ans of its obligations be deemed te be obli-

gations of the Commonwealth of Pennsvivania or of any

of its political subdivisions, nor shall the Commonweaith

of Pennsylvania or any political subdivision thereot be

liable for the payinent of principal of or interest on such

obligations. 1945, May 2. PL 1. 582, See. 4: 1947, -fune 12,

PLL. S71, See. 121951, Sept. 26, PLL. 1507, See. 1: 1952,

Jan. 21, P. L. (1951) 2188, Sees. 4, 5; 1953, Aug. 24, P. L.

TBS, See. 1 1955, July 27, P. L. 282, See. 1; 1955, Oct. 7,

P. 1. 671, See. 1.

Sec. 307. Purposes and powers; bonds

A.. The bonds of any Authority hereinabove referred

to and authorized to be issued, shall be authorized by res-

olution of the board thereof and shall be of such series,

bear such date or dates, mature at such time or times, not

exceeding forty years from their respective dates, hear

interest at such rate or rates, not exceeding six per cent

per annum, payable semi-annually, be in such denomina-

tions, be in such form, either coupon or fully registered

Without coupons, carry suck registration, exchangeability

and interchangeability privileges, be payable in such

medium of payment and at such place or places, be subject

to such terms of redemption not exceeding one hundred

five per cent of the principal amount thereof, and be en-

titled to such priorities in the revenues or receipts of such

Authority as such resolution or resolutions may provide.

The bonds shall be signed by such officers as the Author-

ity shall determine, and coupon bonds shall have attached

thereto interest coupons bearing the facsimile signature

TO

Appendirv wl bets of Lssembty Tnvolved

of the treasurer of the Authority, all as may be prescribed

In such resolution or resolutions. Any such bonds may be

issued and delivered, notwithstanding that one or more of

the officers signing such bonds or the treasurer whose

facsimile signature shall be upon the coupon or any there.

of, shall have ceased to be such officer or officers at the

time when such bonds shall actually be delivered.

Said bonds may be sold at public or private sale for

such price or prices as the Authority shall determine, pro-

vided that the interest cost to maturity of the money re-

ceived for any issue of said bonds shall not exceed six per

ecentum per annum. Pending the preparation of the

definitive bonds, interim receipts may be issued to. the

purchaser or purchasers of such bonds, and may contain

such terms and conditions as the Authority may determine.

B. Any resolution or resolutions authorizing any

bonds may contain provisions which shail be part of the

contract with the holders thereof, as to (a) pledging the

full faith and credit of the Authority (but not of the

Commonwealth of Pennsylvania or any political subdivi-

sion thereof) for such obligations, or restricting the same

to all or any of the revenues of the Authority from all or

any projects or properties, (b) the construction, improve.

ment, operation, extension, enlargement, maintenance and

repair of the project and the duties of the Authority with

reference thereto, (¢) the terms and provisions of the

bonds, (d) limitations on the purposes to which the pro-

weeds of the honds then or thereafter to be issued, or of

any loan or grant by the United States may he applied,

(e) the rate of tolls and other charges for use of the facil-

ities of or for the services rendered by the Authority,

(f) the setting aside of reserves or sinking funds and the

PRC ELE KE yA

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Appendir , * wlcts at a vwembly lnrvolired

reculation and disposition thereat, (2) Himttations on the

issuance of additional bonds, (li) the termes and provisions

of any deed of trust or indenture securing the bonds, or

under which the same may be issued, and (i) any other

or additional agreements with the holders ef the bonds.

(. Any Authority may enter into any deeds of trust,

indentures or other agreements, with any bank or trust

coinpany, or other person or persons in the United States

having power to enter into the same, including any Fed-

eral agency, as security for such bonds, and may assign

and pledge all or any of the revenues or receipts of the

Authority thereunder. Such deed of trust, indenture or

other agreement, may contain such provisions as may be

customary in such instruments, or asthe Authority may

authorize, including (but without Limitation) provisions

as to (1) the construetion, improvement, operation, main-

tenance and repair of any project, and the duties of the

Authority with reference thereto, (2) the application of

funds and the safeguarding of funds on hand or on de-

posit, (3) the rights and remedies of said trustee and the

holders of the bonds (which may include restrictions upon

the individual right. of action of such bondholders), and

(4) the terms and provisions of the bonds or the resolu-

tions authorizing the issuance of the same.

Said bonds shall have all the qualities of negotiable

instruments under the law merehant and the negotiable

instruments law of the Commonweaith of Pennsylvania.

1945, May 2, P. L. 382, See. 5.

Sec. 309. Governing body

A. The powers of each Authority shall be exercised

by a governing body (herein called the ‘*Board’’) com-

posed +s follows:

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bo

Appendis A--Aets ef Assembly Involved

(a) If the Authority is incorporated by one muniei-

pality the board shall consist of sch number of members :

not less than five as shall be set fecth in the articles of

Incorporation or amendment thereto. The governing body

of such municipality shall appoint the members of the F

board, whose terms of office shall commence on the date 3

of appointment. Unless otherwise provided in the articles — °4

of incorporation or amendment thereto, one member shal! |

serve for one year, one for two years, one for three years, 2

one for four years and one for five vears from the Janu- ~ ’

ary first next succeeding the date of incorporation, and if 3

there are more than five members of the board, their fe

terms shall be staggered in a similar manner. Thereafter 3

whenever a vacanev has occurred or is about to occur by

reason of the expiration of the teri of any member, the

said governing body shell appoint a member of the board

for a like term to succeed the member whose term has

expired or is about to expire.

(b) If the Authority is incorporated by two or more

municipalities, the board shall consist of a number of

members at least equal to the number of municipalities

incorporating the Authority, but in no event less than

five. When one or more additional municipalities join an

existing Authority, each of such joining municipalities

shall have such membership on the board as the munici-

palities then members of the Authority and the joining

municipalities may determine by appropriate resolutions.

Such member or members representing the joininggmunic-

ipality or municipalities shall be appointed, immediately

upon the admission of such municipality or municipalities

into the Authority, for the term of vears provided in the

application for membership required by section three

point one of this act.

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Appendtr A— icts of Assembly Tnivolied

Except as herein provided for transit authorities

created for the purpose of eliminating grade crossings,

the members of the board, each of whom shall be a citizen

of the municipality by which he is appeinted or a citizen

of a municipality into which one or more of the projects of

the Authority extends or is to extend or to which one or

more of said projects has been or is to be leased, shall be

appointe 1, their terms fixed and staggered, and vacancies

filled, and where two or more municipalities are members

of the Authority, shall be apportioned in such manner as

the articles Gf incorporation, the amendments thereof or

the application for membership required by section three

point one of this aet shall provide.

If the Authority is created for the purpose of elimi-

nating grade crossings, the members of the board, the

majority of wiiom shall be citizens of the municipality by

_ which they are appointed or of a municipality into which

one or more of the projects of the Authority extends or is

to extend or to which one or more of said projects has

heen or is to be leased, shall be appointed, their terms

fixed and staggered, and vacancies filled, and where two or

more municipalities are members of the Authority, shall

be apportioned in such manner as the articles o. incorpo-

ration, the amendments thereof or the application for

membership required by section 3.1 of this act shall

provide.

B. Meiibers shall hold office until their successors

have been appointed, and may succeed themselves, and,

except members of the boards of Authorities organized or

created by a school district or school districts, shall re-

ceive such salaries as may be determined by the governing

body or bodies of the municipality or municipalities, but

74

Appendic Ae Mets of wlesembly Involved

none Gf such salaries shall he increased or diruinished by

such governing body or bodies durine the term for whieh

the member receiving the same shall have been anpointed.

Members of the beard of any Authority organized or

created by a school distriet or sehool districts shall re-

ceive no compensation for their services, but the members

of such board in office on the effective date of this amend-

ment shall coniimue to receive their salaries during the

remainder of their existing term. A member may be re-

moved for cause by the court of quarter sessions of the

county in wineh the Authoritv is located after having

been provided with a copy of the charges against him for

at least ten days and full hearing by the court. If a va-

eancy shall oceur by reason of the death, disqualification,

resignation or removal of a member, the municipal au

thorities shall appoint a successor to fill his unexpired

term. In joint Authorities such vacancies shall be tilled

by the municipal Authorities of the municipality in the

representation of which the vacuaey occurs, Whenever

any municipality shall withdraw from a joint Authority

the term of any member or members appointed from sneh

municipality. shall immediately terminate.

C. A majority of the members shall constitute a

quorum of the hoard for the purpose of organizing the

Authority and conducting the business thereor and for all

other purposes, and all action may be taken by vote of a

majority of the members present, Unless in anv cise the

by-laws shall require a larger aumober. The board shall

have full authority to manage the properties and business

of the Authority and te prescribe. aimend and repeal by

laws, rules and regulations woverninye the manner in whieh:

the business of the Authority aay be comdueted, and th

ne

Appendir A— Acts of Assembly Involved

powers granted to it may be exercised and embodied. The

hoard shall fix and determine the number of officers,

agents and employes of the Authority and their respective

powers, duties and compensation and may appoint to such

office or offices any member of the beard with such pow-

ers, duties and compensation as the board may deem

proper. The treasurer of the board of any Authority or-

ganized or created by a school distriet or school districts

shall give bond in such sums as may be fixed by the by-

laws, which bond shall be subject to the approval ot the

board and the premiums for which shall be paid by the

Authority. 1945, May 2, P. 1. 382, See. 7; 1947, June 12,

P. L. 571, See. 1; 1949, May 2, P. L. 850, No. 226, See. 1;

i952, Jan. On, P. L. (1951) 2188, See. 6; 1953, July 25,

P. L. 579, See. 1; 1953, July 27, P. L. 639, See. 1: 1956,

May 24, P. L. (1955) 1690, See. 1.

Sec. 310. Moneys of the Authority

All moneys of any Authority, from whatever source

derived, shall be paid to the treasurer of the Authority.

Said moneys shall be deposited in the first instance by the

treasurer in one or more banks or trust companies in one

or tere special accounts, and each of such special accounts

to the extent the same is not imvsured shall be continuously

secured by a pledge of direet obligations of the United

Mates of America, of the Commonwealth or of the muniei-

palit. or municipalities creating the Authority, having an

averegate market value, exclusive of acerued interest, at

all tines at least equal te the balance on deposit in sueh

neconnt, Sueh seeurities shall either be deposited with

the treasurer, or be held by a trustee or agent satisfactory

‘othe Authority. All banks and trust companies are au

thorized to vive sueh security. for such deposits. The

76

Appendir A-— Acts of Assembly Involved

moneys in said accounts shall be paid out on the warrant

or other order of the chairman of the Authority, or of

such other person or persons as the Authority may au-

thorize to execute such warrants or orders. Mvery Au-

thority shall have at least an annual examination of its

hooks, accounts and records by a certified public account-

ant. A copy of such audit shall be delivered to the munie-

ipality or municipalities creating the Authority. A) eon-

cise financial statement shall be published annually, at

least once in a newspaper of general circulation ino the

municipality where the principal offiee of the Authority

is located. If such publication is not made by the Awthor-

ity, the municipality or municipalities shall publish such

statement at the expense of the Authority. [If the Author-

ity fails to make such an audit, then the controller, audi.

tors or accountant designated by the municipality or

Tnunicipalities, are hereby authorized and empowered

from time to time to examine at the expense of the Au-

thority the accounts and books of the Authority, including

its receipts, disbursements, contracts, leases, sinking

funds, investments, and any other matters relating to its

finances, operation and affairs.

The Attorney General of the Commonwealth of Penn.

svlvania shall have the right to examine ithe books, ae-

eounts and records of any Authority. 1945, May 2, Po 0.

382, See. 8.

Sec. 312. Competition in award of contracts

A. All construction, reconstruetion, repairs or work

of any nature made by any Authority where the entire

cost, Value or amount of such constriction, recanstruetion,

repairs or work, inelnding labor and tatertals, shall ex

weed five hundred dollars (2000.00). except construction.

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Appendix A— Acts of Assembly Involved

reconstruction, repairs or work done by employees of said

Authority, or by labor supplied under agreement with any

Federal or State agency, with supplies and materials pur-

chased as hereinafter provided, shall be done only under

contract or contracts to be entered into by the Authority

with the lowest responsible bidder upon proper terms,

after due publie notice has been given asking lor competi-

tive bids as hereinaltter provided. No contract: shall be

entered into for construction or improvement or repair of

any project or portion thereof, unless the contractor shall

give an unertaking with a sufficient surety or sureties ap-

proved by the Authority, and in an amount fixed by the

Authority, for the faithful performance of the contract: Atl

such contracts shall provide among other things that the

person or ¢orporation entering into such contraet with the

Authority will pay for all materials furnished and services

rendered for the performance of the contract, and that any

person or corporation furnishing such materials or render-

ing such services may maintain an action to recover for the

sane against the obligor in the undertaking, as though

such person or corporation was named therein, provided

the action is brought within one vear after the time the

cause of action accrued. Nothing in this section shall be

construed to limit the power of the Authority te eon-

struct, repair or improve any preject or portion thereof,

or any addition, betterment or extension thereto, directly

be the officers, agents and emploves of the Authority,

or otherwise than by contract.

B. AL supplies and materials costing five hundred

dollars (2500.00) or more shall be purehased onky after due

advertisement as heretnafter provided. Authority. shall

accept the lowest bid or bids, kind. quality and material

78

Appendix A—Acts of Assembly Involved

being equal, but the Authority shall have the right to

reject any or all bids or select a single item from any bid.

The provisions as to bidding shall not apply to the pur-

chase of patented and manufactured products offered for

sale in a noncompetitive market or solely by a manufac-

turer’s authorized dealer.

C. The terms advertisement or due public notice

wherever used in this section, shall mean a notice pub-

lished at least ten (10) days before the award of any

contract, in a newspaper of general circulation published

in the municipality where the authority has its principal

office, and if no newspaper is published therein then by

publication in a newspaper in the county where the Au-

thority has its principal office: Provided, That, such

notice may be waived where the Authority determines an

emergency exists, and such supplies and materials must

he immediately purchased by the said Authority.

DPD. No member of the Authority or officer or empiove

thereof shall either directly or indirectly be a party to or

be in any manner interested in any contract or agree-

ment with the Authority for any matter, cause or ting

whatsoever by reason whereof any liability or indebted-

ness shall in any way be created against such Authority.

If any contract ov agreement shall be made in violation

of the provisions of this section the same shall be null

and void and no action shall be maintained thereon against

such Authority.

a * . * os . * * t

Sec. 318. Exemption from taxation

The effectuation of the authorized prrposes of Ae

thorities created under this act shall and will be in ai!

¥

ns

i

Wi

‘=

Appendir A— Acts of Assembly Involved

respects for the benefit of the people of the Commonwealth

| of Pennsvivania, for the increase of their commerce and

; prosperity, and for the improvement of their health: and

living conditions, and sinee such Authorities will be per-

forming essential governmental funetions in effectuating

such purposes, such Authorities shall not be required to

pay any taxes of assessments upon any property acquired

or used by them for such purposes. and the bonds issued

by any Authority, their transfer and the income therefrom

(including any profits made on the saie thereol) shall at

ail times be free from taxation within the Commonwealth

p- of Pennsvivania, 1945, May 2, PLL. 382, See. 15.

chaos

; ACT OF JULY 18, 1935, PLL. 1286, 53

PURDON’S STATUTES

; =e

"Sec. 2231. Rentals for use of sewage system

M Whenever any county of the second class, city. bor-

a oueh, incorporated town, or township, either singls or

.| Jointly with other municipalities or townships (a) has,

» wholly or partially, constructed or completed or shall here-

2 after, wholly or partially, construct or complete any

3 seer, sewerage svstem or sewave treatinent works, either

4 Wholly or partially at publie expense, or (bh) has aequired

: er shall hereafter acquire the same, either wholly or

: partially at publie expense, or (e) lias entered or shall

- bercatter enter into any contract with any authority estab-

; ished in aceordanee with fuw or with any private corpora-

tton for the desien or construction of sewers, sewerage

svstets of sewage treatment works. or for the furnishing

Of sewer, sewerage or sewnge treatment serviees, for its

or their benefit and the benefit ef the inhabitants thereof,

80

Appendix A—Acts of Assembly Involved

such county of the seeond e¢lass, city, borough, incorpo-

rated town, or township may provide by ordinanee or

resolution, enacted either before or after the acquisition

or construction thereof, or the entry into such contract,

for the imposition and collection of an annual rental, rate

or charge for the use of such sewer, sewerage system, or

sewage treatment works from the owners of, or the users

of water in or on the property served or to be served by

it, or from both the owner and the water user, whether

such property is located within or without the corporate

limits of such county of the second class, city, borough,

town, or township.

The annual rental, rate or charge so imposed shall be

a lien on the properties served, and such liens may be filed

in the office of the prothonotary and collected in the man-

ner provided by law for the filing and collection of munic-

ipal claims. 1935, July 18, P.L. 1286, See. 1; 1987; May 14,

P.L. 680, See. 1; 1949, April 18, P.L. 499, See. 1.

ACT OF APRIL 14, 1949, PLL. 482, 53

PURDON’S STATUTES

Sec. 2261. Shutting off water if sewer charges not paid

If the owner or occupant of premises served by any

water utility, as hereinafter defined, shall neglect or fail

to pay, for a period of thirty (30) days from the due date

thereof, any rental, rete or charge for sewer, sewerage.

or sewage treativent serviee Unposed by any municipal au-

thority organized by any county of the second class, by

any city of the second class. by any city of the second class

A, by any city of the third elass or by any borough, such

;

81

Appendis A Acts of Assembly Involved

water utility is hereby authorized and required, at the

request and direction of such authority, or of the city,

borough, or township te which the authority shall lave

assigned its claim or lien for such service, to shut off the

supply of water to such premises until all such overdue

rentals, rates and charges, together with any penalties

and interest thereon, shall be paid. If such authority or

such city, borough, or township shall also supply water to

any premises, it is hereby authorized to shut off the supply

of water to such premises, as herein set forth. 1949, April

14. PL. 482, See. 1: 1951, Jan. 14 (1952), PLL. 2040, See. 1;

1955, Sept. 7, P.L. 576, See. 1.