expended and then seek other relief as the court may deem proper.
It will be noted that the City of Erie is a City of the Third Class of Pennsylvania operating under a Home Rule Charter adopted pursuant to the optional Third Class City Charter Law of July 15, 1957 P.L. 901, 53 Purdon's Statutes 41,101. See also 53 Purdon's Statutes 41,301. Under 2403 of the Third Class City Code of Pennsylvania (53 PS 37,403(16)) a Third Class City is given the power to prohibit nuisances and the carrying on of any offensive manufacture or business. This is not one of the prohibited fields for municipal regulation under 53 PS 1-302(a) and (b). These matters however are more properly for decision by the state courts rather than the federal tribunals.
Complaint has been made by the plaintiffs that this Ordinance does not adequately define a nuisance under Pennsylvania Law. That is a problem for the Pennsylvania courts. Commonwealth v. MacDonald, 464 Pa. 435, 347 A.2d 290 (1975). It will be noted that the Ordinance does not prohibit all uses of the property but only uses for purposes of lewdness and other matters prohibited by the Ordinance. Cf. Commonwealth ex rel. Davis v. Van Emberg, 464 Pa. 618, 347 A.2d 712 (1975).
The plaintiffs further complain that in judicial proceedings the courts may take the view that they are only to consider an abuse of discretion by an administrative body on judicial review and not get to the merits. See Flaherty v. Port Authority, 450 Pa. 509, 299 A.2d 613 (1973). Flaherty was a suit by the Mayor of Pittsburgh to prevent the Port Authority from going ahead with certain plans. An entirely different matter is presented here where the City Council has merely directed the City Solicitor to bring an action before the court under certain circumstances. The Mayor or the City Solicitor himself might have investigated to determine if suit should be brought. But this does not make such consideration a violation of the U.S. Constitution. We cannot believe that the Court of Common Pleas and the other Pennsylvania courts reviewing the matter would be so insensitive to First Amendment problems arising in such a case as not to make its own independent determinations as to whether tests of obscenity under the First Amendment to the Federal Constitution have been met. If that should occur, then this court would probably reconsider the matter of the validity of this Ordinance.
We find that this Ordinance is prima facie Constitutional under the decision of the U.S. Supreme Court in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973) wherein it was clearly held that nothing precludes the states from regulating the exhibition of obscene motion pictures in adult theatres to consenting adults provided that the tests of Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973) are met, i.e., (1) whether the average person applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest, (2) whether the work depicts or describes in a patently offensive way sexual conduct specifically defined by the applicable state law as written or construed and (3) whether the work taken as a whole lacks serious literary, artistic, politic or scientific values. The court further held in Paris Adult Theatre that the states have an interest in protecting the social interests in law, order and morality and are free to do so provided the tests of Miller are met.
Inasmuch as the findings by the City Council do not of themselves result in the infliction of any penalties civil or criminal upon anyone but such penalties can only be imposed after proper judicial proceedings which the court assumes would be after proper notice and hearing by the Court of Common Pleas, we cannot say that this Ordinance runs afoul of the Federal Constitution in any respect. None of the parties have considered or briefed the case of Southeastern Promotions Limited v. Conrad, 420 U.S. 546, 95 S. Ct. 1239, 43 L. Ed. 2d 448 (1975) where an application to a City Board to present the musical show "Hair" in a municipal theatre had been rejected. It was held that this was a prior restraint on expression in violation of the First Amendment lacking Constitutionally required safeguards. The court said at page 553, 95 S. Ct. at page 1244:
"Invariably, the court has felt obliged to condemn systems in which the exercise of such authority was not bounded by precise and clear standards. The reasoning has been, simply, that the danger of censorship and of abridgment of our precious First Amendment freedoms is too great where officials have unbridled discretion over a forum's use. Our distaste for censorship -- reflecting the natural distaste of a free people -- is deep-written in our law."
"In each of the cited cases the prior restraint was embedded in the licensing system itself, operating without acceptable standards. In Shuttlesworth the court held unconstitutional a Birmingham ordinance which conferred upon the city commission virtually absolute power to prohibit any 'parade,' 'procession,' or 'demonstration' on streets or public ways. It ruled that 'a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional'."