Opinion
September 8, 1958.
November 14, 1958.
Criminal law — Sunday blue laws — Employes of department store — Constitutional law — Establishment of religion — Police power — Discrimination — Uncertainty of statute — Costs — Acts of June 24, 1939, P.L. 872 and April 22, 1794, 3 Sm. Law.
1. Where it appeared that defendants, employes of a full scale department store, worked for hire on a Sunday in departments of the store other than the food, drug, and restaurant departments; that defendants were summarily convicted for violation of § 699.4 of The Penal Code of June 24, 1939, P.L. 872; and that defendants petitioned the court below for leave to appeal, contending that the Act of 1939 was unconstitutional in that it is (1) a law respecting the establishment of religion, (2) not a valid exercise of police power, (3) discriminatory because (a) it is part of a scheme to establish unfair, discriminatory and unreasonable classifications, and (b) applied so as to result in illegal discrimination between persons in similar circumstances, material to defendants' rights, and (4) is so vague and indefinite as to violate the Fourteenth Amendment of the United States Constitution; and that the court below denied the appeals, holding that the act was constitutional; it was Held that the orders of the court below denying the appeals should be affirmed.
2. Where it appeared that the defendants further contended that, even if § 699.4 of the Act of 1939 is constitutional and their convictions were valid, no costs could be collected from them; and that the court below held that defendants were liable for the costs involved in that § 4 of the Act of 1794 had not been repealed and was applicable to § 699.4 of the Act of 1939; it was Held that the orders of the court below directing payment of the costs by defendants should be affirmed.
Before RHODES, P.J., HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN, and WATKINS, JJ.
Appeals, Nos. 405 and 406, Oct. T., 1958, from orders of Court of Quarter Sessions of Lehigh County, Jan. T., 1958, Nos. 109 and 120, in case of Commonwealth v. Milton Bauder, and Same v. Helen Mills. Orders affirmed.
Same case in court below: 14 Pa. D. C. 2d 571.
Appeals by defendants from summary convictions before an alderman for violations of Sunday Blue Laws.
Order entered denying appeals, opinion by HENNINGER, P.J. Defendants appealed.
Harold E. Kohn, with him Morris Efron, George J. Joseph, Harry A. Kalish, William T. Coleman, Jr., Philip P. Kalodner, and Dilworth, Paxson, Kalish, Kohn Dilks, for appellants. Paul A. McGinley, District Attorney, for appellee.
GUNTHER, J., filed a dissenting opinion, in which WATKINS, J., joined.
Argued September 8, 1958.
The orders of the court below are affirmed on the opinion of President Judge HENNINGER as reported in 14 Pa. D. C. 2d 571.
Substantially for the reasons expressed in Commonwealth v. Taber, 188 Pa. Super. 415, 145 A.2d 908, and for the admitted discrimination which I consider arbitrary and in violation of the equal protection clause of the federal Constitution, I dissent.
WATKINS, J., joins in this dissent.