Appeal, No. 138, March T., 1952, from decree of Court of Common Pleas of Mercer County, Sept. T., 1950, in Equity, No. 3, in case of Olan Mills, Inc. v. City of Sharon, Myron W. Jones, Mayor, and William E. Stuart, Chief of Police. Decree reversed.
Martin E. Cusick and Cyril T. Garvey, with them Wiesen, Cusick and Madden, for appellant.
Nathan Routman, for appellee.
Before Stern, Stearne, Jones, Bell and Musmanno, JJ.
OPINION BY MR. JUSTICE MUSMANNO
The plaintiff company, which is a Tennessee corporation with main offices in Springfield, Ohio, leased on July 6, 1950, premises in Sharon, Pa., for a period of one and two-thirds months. On July 14, 1950, an employee of the plaintiff corporation was arrested by the Sharon Chief of Police, charged with violating Sharon Ordinance No. 410 which required the payment of $200 per month by all transient retail businesses, and which $200 had not been paid by the plaintiff.*fn*
On July 22, 1950, the plaintiff brought a bill in equity praying for an injunction against the City of Sharon from enforcing the provisions of the involved ordinance, claiming that it was unconstitutional in that it exacts a license fee under the guise of a police regulation. Further, that the license fee is greatly in excess of the cost of enforcing the said ordinance and therefore in effect it imposes a revenue tax rather than a license fee. It claimed also that the arrest was beyond the scope of the ordinance which applies only to the "sale of goods, wares, vehicles or merchandise."
The plaintiff corporation is engaged in the business of catering to the vanity of mankind by reproducing on paper the images of the people who pose before its cameras. These photographic reproductions are then sold to those who contracted to buy them. There can be no doubt that this operation, familiar to the world, constitutes the sale of goods and wares, and therefore comes within the scope of the ordinance here under consideration.
Whether the ordinance in its entirety can be upheld, however, is another question. The spirit behind this municipal legislation is commendable because it is obvious that the ordinance is intended to protect Sharon business people from high pressure competition of transient merchants. To the extent that the ordinance is used as a shield against unreliable fly-by-night operators it is supportable, but to the extent that it becomes a sword against legal and fair competition it is not valid.
The City of Sharon argues that the ordinance represents the exercise of municipal police power stemming from the Act of 1933, ...