Commonwealth v. Jackson

Opinion by

Rice, P. J.,

The single question which the appellant raises upon this appeal is, whether a borough incorporated under the act of 1851, and its supplements, has power to ordain as follows: “No advertisements in' the form of handbills, posters, flyers or any samples of patent medicine, or of any kind of groceries or merchandise whatsoever, no matter in what form the same may be put up, shall be distributed among the houses or other places in the borough of Munhall, nor shall the same be thrown on the streets, alleys, highways, public places, or on improved or unimproved property within the limits of the borough of Munhall.” As will be seen in the succeeding case, an ordinance which absolutely prohibits the distribution of advertisements within the limits of a borough, except by its licensee, is invalid. But an ordinance which forbids the easting of advertisements, handbills,. circulars or waste paper upon the streets, alleys, highways or in other public places of a borough is sustainable by the legislative grant to boroughs of the powers: to make such laws, ordinances, by-laws and regulations not inconsistent with the laws of this commonwealth as they shall deem necessary for the good order and government of the borough; to regulate, and to exercise all needful jurisdiction over, the roads, streets, lanes, alleys, public squares and common grounds of the borough; to prohibit and remove any obstructions in the highways of the borough, and any nuisances whether in the highways or in public or private ground; and “ to make such other regulations as may be necessary for the health and cleanliness of the borough: ” Act of April 3,1851, P. L. 320. The powers under which the ordinance considered in Philadelphia v. Brabender, 17 Pa. Superior Ct. 331; s. c. 201 Pa. 574, was sustained, were not broader than those above enumerated; therefore, the reasoning of the opinion filed in that case is applicable here, and need not be repeated.

There is no essential connection between the prohibition of this ordinance against the distribution of advertisements in any form or manner, and the prohibition against distributing them in the manner described in the latter part of the section. Therefore, the general principle is applicable that if’an ordinance, or even the same section of an ordinance, contains two separate prohibitions relating to different acts, with distinct penalties for each, one of which is valid and the other void, the ordinance may be enforced as to that portion of it which is valid: 1 Dill. Mun. Corp. (4th ed.) sec. 421; Trickett on Boroughs, p. 125; City of Pittsburg’s Appeal, 115 Pa. 4; Lansdowne Boro. v. Springfield Water Co., 16 Pa. Superior Ct. 490.

The record shows that the defendant was charged with willfully violating the ordinance, that he pleaded guilty, and that upon special allowance of the court he appealed to the quarter sessions. He thereby waived mere irregularities in the proceedings, and to avoid the effect of his plea was bound to establish the invalidity of the ordinance as a whole, or to show that his act was not prohibited by the valid part of the ordinance. He has done neither of these things, and therefore has no just cause to complain of the action of the court in affirming the judgment of the burgess.

The same result is reached, if we go outside the record and take the statement of his counsel that his act was “ passing advertisements in said borough by placing the same in the vestibules of houses.” This act was in violation of the latter part of the ordinance, which, for the reasons given in Philadelphia v. Brabender, must be held to be a reasonable regulation which the borough had power to make.

Judgment affirmed.