The opinion of the court was delivered by: FOGEL
STATEMENT OF THE ISSUE AND HISTORY OF THE CASE
This case presents the following issue for resolution, apparently one of first impression in the federal courts:
This action was brought on June 20, 1974, by plaintiff Philadelphia Newspapers, Inc., publisher of the Philadelphia Inquirer (hereinafter referred to as PNI), against defendant officials of the Borough of Swarthmore, Pennsylvania (hereinafter referred to as the Borough), seeking declaratory and injunctive relief against enforcement of Borough Ordinance No. 715, passed on March 8, 1971, insofar as it prohibits the placement of newspaper boxes along streets and on sidewalks within the Borough.
An initial hearing was held on June 21, 1974, at the conclusion of which a temporary restraining order was issued ordering the Borough to replace two newspaper boxes located at Rutgers Avenue near the Post Office, and at the intersection of Yale Avenue and South Chester Road, which it had removed a short time before this action was instituted. By consent of the parties, this temporary restraining order was to remain in effect until the subsequent hearing, which the parties agreed could be a final one because of the identical character of the factual and legal issues pertinent to the grant or denial of temporary and permanent relief. Accordingly, a final hearing was held on July 15 and 16, 1974, and the temporary restraining order was continued in effect, again with the consent of the parties, pending final decision of this Court.
Before turning to the merits of the case, a brief discussion of the basis for our jurisdiction is in order.
Jurisdiction is founded on 28 U.S.C. § 1343(3), which grants to the District Courts original jurisdiction "[to] redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States. . . ." The substantive counterpart is § 1343(3) is 42 U.S.C. § 1983, which establishes a cause of action against "[every] person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution. . . ."
PNI alleges deprivation by defendant officials of rights secured under the First and Fourteenth Amendments to the Constitution of the United States.
The term "Street", as used herein, refers to the public easement or right of passage as shown on the Borough map or plan of streets. A standard Borough street consists of a paved roadway, 25 feet wide, with a sidewalk strip 12 1/2 feet wide on either side. "Property line": The legal side lines of a public street or highway. "Sidewalk strip": The portion of a street or highway on either side of the roadway, normally consisting of the curb, the unpaved grass plot, the paved sidewalk, normally four feet wide, and the remaining unpaved space extending to the property line.
Section 2. PUBLIC USE OF STREETS
With the exception of public signs, barriers, poles, meter stands and similar municipal equipment and fixtures, and the further exception of temporary obstructions incidental to loading and unloading, and to construction work, it shall be unlawful to obstruct the free public use of the streets of the Borough, or to make any commercial use thereof. Encroachments upon, under or over public streets are unlawful, and may be removed by the Borough officers and their agents, regardless of how long such encroachments have existed. This section shall not prohibit the Borough Council from making exceptions in the cases of awnings, signs or other devices where the encroachment is temporary in nature, the minimum amount necessary to accomplish the owner's purpose, and does not inconvenience the public or interfere with free passage.
The provisions of this ordinance are severable. If any of its provisions shall be held to be invalid, the remaining provisions shall not be affected thereby. The Council hereby declares that said provisions would have been enacted notwithstanding deletion of the invalid provisions.
Any person who shall violate any of the provisions of this ordinance shall be subject to a fine or penalty not exceeding $300.00 for each such offense, and in default of payment thereof, to imprisonment up to ten days. In assessing penalties the Justice of the Peace shall take into consideration whether or not the violation was wilful or unintentional.
This ordinance was modified by Resolution of May 13, 1974, which provides as follows:
In Re: SIDEWALK ORDINANCE NO. 715, APPROVED MARCH 8, 1971.
WHEREAS, Subsection 74 of Section 1202 of the Borough Code empowers boroughs to enact such ordinances, by-laws, rules and regulations as may be expedient for the proper management, care and control of the borough, and its trade, commerce and manufactures; and
WHEREAS, the Council of the Borough of Swarthmore believes that the prosperity of persons earning their living in the Business District, as delineated in the zoning ordinance, would be promoted, without detriment to the public welfare, if temporary, limited use of public sidewalks in front of their establishments for display of goods and advertising of services and facilities were permitted;
NOW, THEREFORE, the Council does hereby resolve that it shall be lawful for any tenant, owner or occupant of premises in the Business District of the Borough, so long as this Resolution remains in effect, to utilize not more than three feet of the public sidewalk adjoining his said premises for the orderly advertising and display of goods, wares and merchandise, and services and facilities available in or from said place of business. The portion of sidewalk so utilized shall be closest to the store front, and not wider than the width of such store, office or shop along such street.
Any owner, occupant or tenant who makes use of such portion of the public sidewalk pursuant to this authorization shall thereby be held to agree to the following rules and regulations, upon which the privilege is conditioned:
1. The privilege is revocable, in whole or part, by mo- [omitted from Exhibit "B" to the Complaint] Council, at anytime, and without prior notice, or obligation to furnish reasons for such revocation.
2. The Borough is not hereby surrendering its jurisdiction over the public sidewalks as same exists by law, and as set forth more particularly in Ordinance No. 715, approved March 8, 1971. Rather the Borough, in passing this resolution, is granting a special exception, as authorized in Section 2, of said ordinance which section concludes with the following words:
"This section shall not prohibit the Borough Council from making exceptions in the cases of awnings, signs or other devices where the encroachment is temporary in nature, the minimum amount necessary to accomplish the owner's purpose, and does not inconvenience the public or interfere with free passage."
3. The Borough Council may adopt further rules and regulations, from time to time. Publication thereof in a newspaper circulating in the Borough shall immediately bind all parties subject to the terms of this Resolution.
4. No permanent signs, stands, equipment or enclosures shall be erected upon or suspended over any portion of the public sidewalk. All equipment and displays shall be taken indoors each afternoon or night upon the closing of the business or establishment involved, and the sidewalk shall be left broom clean and in proper state of repair at all times. In addition, the owner, tenant or occupant shall comply with all orders of the Chief of Police and of the Fire Marshal.
5. It is a further condition of this authorization and exception that each person availing himself thereof agrees to carry suitable liability insurance to protect him as well as the Borough against all claims of personal injury or property damage arising out of such utilization of the sidewalk for the purposes described in this resolution.
PASSED, this 13th day of May, 1974.
PNI asserts that the Ordinance of March 8, 1971 (hereinafter the Ordinance), and the Resolution of May 13, 1974 (hereinafter the Resolution), construed together, are unconstitutional to the extent that they prohibit the placement of newspaper boxes on the public sidewalks of the Borough, while permitting certain other uses of the streets and sidewalks which are not entitled to the protection of the First and Fourteenth Amendments.
Several other preliminary jurisdictional matters must be discussed before we reach the merits of plaintiff's claim.
First, we are satisfied that a single federal judge can decide the constitutionality of a municipal ordinance, without the necessity of convening a three-judge court pursuant to 28 U.S.C. §§ 2281, 2284. Moody v. Flowers, 387 U.S. 97, 87 S. Ct. 1544, 18 L. Ed. 2d 643 (1967).
Second, a more difficult problem arises with respect to the declaratory and injunctive relief sought by plaintiff. The ordinance and modifying resolution have penal sanctions, but there is no pending prosecution thereunder against PNI. The two newspaper boxes which were the subject of the temporary restraining order were first placed in the Borough during the first week of April, 1974. Plaintiff received the ...