Summary
In Commonwealth v. Baker, 160 Pa. Super. 640, 53 A.2d 829 (1947), which upheld a summary conviction for violation of a very similar ordinance, neither the question of statutory authorization for the borough ordinance nor the question of the validity or reasonableness of the ordinance was raised by the defendant.
Summary of this case from Commonwealth v. HanzlikOpinion
April 29, 1947.
July 17, 1947.
Criminal law — Nuisance — Maintenance — Junk yards — Boroughs — Ordinances — Evidence.
In a proceeding to enforce the penalty for violation of a borough ordinance which prohibits the maintenance of a junk yard within the limits of the borough, and which also declares the maintenance of a junk yard within the borough limits to be a public nuisance liable to be abated as provided by law, it is sufficient to show that defendant maintained a junk yard within the borough limits; to sustain a conviction it is not necessary to show that the junk yard was a nuisance in fact.
Before RHODES, P.J., HIRT, RENO, DITHRICH, ROSS and ARNOLD, JJ.
Appeal, No. 1, March T., 1948, from order of C.P., Union Co., Sept. T., 1946, No. 34, in case of Commonwealth v. Samuel Baker. Order affirmed.
Appeal by defendant from summary conviction before a justice of the peace upon information charging violation of ordinance.
Order entered dismissing exceptions and sustaining the conviction, opinion by GILBERT, P.J. Defendant appealed.
Miller Alanson Johnson, for appellant.
Paul M. Showalter and William L. Showers, District Attorney, for appellee.
Submitted April 29, 1947.
The appellant, Samuel Baker, was summarily convicted of violating an ordinance prohibiting the maintenance of a junk yard within the borough limits of Lewisburg. On certiorari, the conviction was sustained by the Court of Common Pleas of Union County and this appeal was taken.
The borough ordinance provided, inter alia, as follows: "Section 2. It shall be unlawful for any person or persons, firm or corporation, to establish, maintain, conduct or allow any junk yard either on public or private property, within the limits of the Borough of Lewisburg, Pa. Section 3. The establishment, maintenance or conduct of any junk yard within the limits of the Borough of Lewisburg is hereby declared to be a public nuisance and liable to be abated as provided by law. . . . Section 6. Any person or persons, firm or corporation, violating any of the provisions of this ordinance shall upon Summary conviction before the Chief Burgess or a Justice of the Peace of the Borough of Lewisburg be sentenced to pay a fine of not less than fifty ($50.00) Dollars, nor more than one hundred ($100.00) Dollars, together with the costs of prosecution, which shall be recoverable as debts of like amount are now by law recoverable, and in default of payment of said fine and costs, shall be committed to the common jail for the County of Union for a period not exceeding thirty (30) days."
Appellant contends that to sustain his conviction it was necessary to show that the junk yard was a nuisance in fact or per se, and since this was not shown the conviction should be set aside.
If this were an action to abate a nuisance under section 3 of the ordinance, there would be merit to appellant's contention, but his conviction was based on the provisions of section 2 of the ordinance and the penalty provided therefor in section 6.
In Pittsburgh v. W.H. Keech Co., 21 Pa. Super. 548, at page 553, President Judge RICE, stated: "So also the corporate officers of a city, having power `to provide for the safety, preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of the corporation and the inhabitants thereof', may by ordinance duly enacted not manifestly unreasonable or oppressive, nor unwarrantably discriminatory prohibit things which were not public nuisances at common law, and the fact that it declares the thing prohibited a public nuisance would be no ground for denying validity to the penal provision of the ordinance. In an action or proceeding to enforce the penalty annexed to the violation of such an ordinance, the only question would be whether the alleged offender had done the prohibited act. He could not defend upon the ground that it was not a nuisance in fact . . .". (Italics supplied.)
At the hearing before the justice of the peace it was shown — and it is not disputed — that the appellant was maintaining a junk yard within the borough limits, and he does not question the validity or reasonableness of the ordinance. Under these circumstances, as stated by the learned court below, "The ordinance prohibited `Junk Yards', and the only proof necessary . . . was the existence of a `Junk Yard' maintained by defendant."
Order is affirmed.