Appeal, No. 124, March T., 1950, from decree of Court of Common Pleas of Allegheny County, July T., 1949, in Equity, No. 1656, in case of Western Pennsylvania Restaurant Association et al. v. City of Pittburgh et al. Decree reversed; reargument refused January 24, 1951.
Anne X. Alpern, City Solicitor, with her Joseph A. Langfitt, Jr. and J. Frank McKenna, Jr., Assistant City Solicitor, for appellants.
Leonard Boreman, with him Krause & Boreman, for appellees.
Charles Denby and James Craighead Kuhn, Jr., with them Reed, Smith, Shaw & McClay and Wilner & Wilner, for North Side Community Council et al., amici curiae.
Before Drew, C.j., Stern, Stearne, Jones and Chidsey, JJ.
OPINION BY MR. JUSTICE HORACE STERN
The question is whether the City of Pittsburgh may validly enact an ordinance to safeguard the public health by regulating the operation of restaurants within the city. Ordinarily the answer to such a question would clearly be in the affirmative because the city's Charter Act (Act of March 7 1901, P.L. 20, Article XIX, section xxxiii> vests in it the power "To make regulations to secure the general health of the inhabitants....", -- a power which, indeed, it would probably possess even in the absence of such a specific grant: Wartman v. The City of Philadelphia, 33 Pa. 202, 209; Adams v. New Kensington, 357 Pa. 557, 563, 564, 55 A.2d 392, 395.*fn1 In the present instance, however, further consideration of the problem is required because of the enactment by the legislature of the Act of May 23, 1945, P.L. 926, entitled: "For the protection of the public health by regulating the conduct and operation of public eating and drinking places within this Commonwealth; requiring their licensing; imposing certain duties on the Department of Health of this Commonwealth and on the local health authorities; and providing penalties." Generally speaking, the ordinance here in question, which was approved September 8, 1948, covers substantially the same ground and has the same objectives as the State statute.
The Act of 1945 provides that every proprietor of a public eating or drinking place must obtain a license from the health authorities of the city, borough, town, or first class township where such eating or drinking place is located, or from the State Department of Health where the location is in a township of the second class. A license may be issued only upon inspection
of the premises, the facilities and the equipment by the licensor, and upon their being found adequate to the protection of the public health and comfort of patrons. The State Department of Health is authorized to make such reasonable rules and regulations as may be deemed necessary for carrying out the provisions and intent of the act. There are several provisions prescribing sanitary requirements in regard to the health of the employees who handle food or drink, the laundering of towels and napkins, the washing of dishes and glasses, the cleanliness of kitchens, dining rooms, cellars and refrigerators. There is a clause to the effect that "Any proprietor who, after investigation made by the licensor, has failed or refused after a reasonable interval to correct conditions found to constitute a violation of this act, or of the regulations of the department pertaining to public eating or drinking places, shall have his license revoked."
The city's ordinance is entitled "An Ordinance to carry into effect in the City of Pittsburgh the provisions of the Act of Assembly of 1945, P.L. 926, to safeguard the public health within the City of Pittsburgh; defining restaurant... etc.; requiring permits for the operation of such establishments; prohibiting the sale of adulterated, unwholesome or misbranded food or drink; regulating the inspection, grading, regarding and placarding of such establishments, the enforcement of this ordinance; providing for the examination of employees; regulating the construction, reconstruction and alteration of restaurants, and the fixing of penalties." It provides that the director of the city's Department of Public Health shall require inspections to be made of all public eating and drinking ...