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March 21, 1962


Appeal, No. 486, Jan. T., 1961, from decree of Court of Common Pleas No. 2 of Philadelphia County, Dec. T., 1959, No. 1411, in equity, in case of Bargain City U.S.A., Inc. v. Richardson Dilworth, Mayor of City of Philadelphia, Donald Wagner, Managing Director of City of Philadelphia, Victor Blanc, District Attorney of City of Philadelphia, et al. Decree affirmed; reargument refused April 5, 1962.


Myron Harris, for appellant.

David Berger, City Solicitor, with him Matthew W. Bullock, Jr., Assistant City Solicitor, and James L. Stern, Deputy City Solicitor, for appellees.

Harold E. Kohn, with him William T. Coleman, Jr., Louis E. Levinthal, and Morris Efron, for amicus curiae.

Arthur Littleton, with him Russell C. Dilks, Benjamin M. Quigg, Jr., W. James MacIntosh, and Morgan, Lewis & Bockius, for amicus curiae.

Alan Miles Ruben, Deputy Attorney General, with him David Stahl, Attorney General, for Commonwealth, amicus curiae.

Before Bell, C.j., Musmanno, Jones, Cohen and Eagen, JJ.

Author: Cohen

[ 407 Pa. Page 131]


In this appeal, Bargain City U.S.A., Inc., appellant, attacks the validity of the Act of August 10, 1959, P.L. 660, § 1, 18 PS § 4699.10, which prohibits the Sunday retail sale of certain specified commodities. Although appellant initially attacked the statute upon a variety of grounds under the federal constitution, these issues have been foreclosed by the decision of the United States Supreme Court in Two Guys from Harrison v. McGinley, 366 U.S. 582, 6 L.Ed.2d 551, 81 S.Ct. 1135 (1961). Appellant now asserts only two bases for the alleged invalidity: (1) that the act violates Article III, § 7, of the Pennsylvania Constitution in that it is a local or special law regulating labor or trade and (2) that the act violates the fourteenth amendment to the United States Constitution because its enforcement has been conducted in a discriminatory manner by the Philadelphia officials charged with the duty of enforcement.

The close correspondence in meaning and purpose between Article III, § 7, of our state constitution and the "equal protection" clause of the fourteenth amendment to the federal constitution was recently accentuated by this Court in its opinion in Rubin v. Bailey, 398 Pa. 271, 157 A.2d 882 (1960), where we unanimously

[ 407 Pa. Page 132]

    refused to overturn the lower court's dissolution of a preliminary injunction restraining the police authorities from enforcing the Act of 1959. In finding no clear constitutional violation, this Court, in an opinion by former Chief Justice CHARLES ALVIN JONES, stated: "Likewise, since it has also been held that the Act of 1959 does not violate the 'equal protection' clause of the Federal Constitution, it would be equally unreasonable for us to conclude that the Act plainly violates Article III, Section 7, or Article XVI, Section 3, of the Pennsylvania Constitution."

While the decision in that case did not go to the merits of the issue, the above language illustrates the approach required in considering Article III, § 7. In this respect, therefore, we begin by recognizing that one of the determinations made finally by the United States Supreme Court in the Two Guys case is that the Pennsylvania statute does not violate the equal protection clause of the fourteenth amendment to the federal constitution.

Appellant seeks to counter the conclusion that Article III, § 7, and the fourteenth amendment correspond in their protections by asserting, first, that this Court must determine the state constitutional question independently and, second, that standards applied by federal courts in testing legislation under the federal constitution are less sweeping than those used by a state court in applying relevant sections of the state constitution. The first contention is not open to argument. State constitutional issues are ultimately decided by this Court, not the federal courts.

That the Act of 1959 does not apply to all sales of commodities or even to retail sales of all commodities is self-evident. It selects the retail sale of a limited number of items for intensified restriction, leaving the sale of other items to the basic provisions of the Act of 1939, June 24, P.L. 872, § 699.4, 18 P.S. § 4699.4.

[ 407 Pa. Page 133]

But a classification in and of itself is not prohibited by Article III, § 7, as we have many times held, e.g., Seabolt v. Commissioners, 187 Pa. 318, 323, 41 Atl. 22 (1898); Commonwealth v. Gilligan, 195 Pa. 504, 509, 46 Atl. 124 (1900) as long as the classification is reasonable and founded upon a genuine distinction, Smith Case, 381 Pa. 223, 233, 112 A.2d 625 (1955). Moreover, Article III, § 7 does not provide for a test of the wisdom of a classification but only of its good faith and reasonableness. Smith Case. In appeal, therefore, we need only decide if the distinctions are reasonable. In this light we are not prepared to agree with ...

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