# Appendix — Ullner v. Ohio

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1958
- **Citation:** 358 U.S. 131

## Text

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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... . —

4a
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-

6a
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

7a
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

8a
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.

10a
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.

12a

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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13a
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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l4a
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.-

l6a
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
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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
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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!

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_1152%3A3. Public record. Not legal advice.