Concurring and Dissenting Opinion by
Mr. Justice Musmanno :The Braits own and operate a men’s clothing store at 46 South 52nd Street in Philadelphia. Immediately in front of the store, the defendant Oscar Manlin maintained on the sidewalk from 1932 to 1954 a newsstand which, conversely to the story of the Ugly Duckling, grew from an attractive little boy’s cart into a misshapen, ugly monstrosity of a shack which measured 9 feet 43,4 inches in length, 6 feet 3 inches in height, and 4 feet 1 inch in width. It sprawled over 40% of the sidewalk, obstructing the view of the Braits’ show windows and impeding the movement of customers desiring to patronize the store.
Besting on various levels and racks and hanging from hooks and other contrivances of this ungainly *336structure were displayed newspapers, 300 different kinds of magazines, alleged comic books, paper back editions of standardized books, and sheets, known as racing forms. In 1954 Manlin left his shack behind him and took up full time employment elsewhere. Other people have operated the business since he left.
In November, 1956, the Braits filed a suit in equity to enjoin Manlin and a man named Theodore Berman (who was then operating the stand but has since dropped out of the picture), from carrying on a business at the place indicated. Manlin opposed the action by averring that the right to maintain a kiosk at 46 South 52nd Street is his exclusively and that he may sell that right to others. He testified at the trial that he is presently in the market for bidders to purchase this alleged privilege from him.
The Court below was apparently impressed with Manlin’s arguments and refused the injunction sought by the Braits, although it ordered a reduction in the size of the newsstand, and limited sales to Philadelphia newspapers. The plaintiffs appealed from the decree denying injunctive relief and the defendant appealed from that part of the decree which prohibited the vending of out-of-town newspapers, magazines, and books.
No one can dispute that newspapers are essential to the life of a community because, without knowledge as to what is transpiring, the people meet in a windowless and unlighted hall to assert their rights as citizens of a democracy. Nor may the sale of newspapers be limited to local newspapers. A newspaper is a newspaper and, regardless of point of origin, its sale, consistent with security and health regulations, may not be enjoined anywhere.
But while books also come under the protection of Freedom of the Press, their sale at newspaper stands is something different. While they are indubitably essential to the intellectual and cultural progress of the *337people, they are not so momentarily and immediately needed that pedestrians must purchase them as they hurry along the streets on their important errands of the hour or day.
The spontaneous need of the public for books is not so vital that it cancels out the rights of a property owner who is entitled to space in front of his business establishment for the accommodation of prospective customers who would like to observe his window displays before purchasing.
Today an ever-increasing quantity of books are becoming encyclopaedic in size. At the oral argument one of Manlin’s attorneys was asked if he would contend that on the basis of the right to sell, Manlin could put on display sets of the Encyclopaedia Britannica. The attorney replied that he would not assert that kind of a privilege because an encyclopaedia is not a current book, but who is to determine whether a book is current or not?
It was also argued, in behalf of the defendant, that the only books sold at the Manlin kiosk were pocket books which are paper back editions of hard cover books. However, it must be apparent to anyone that many of the so-called paper books are themselves assuming such proportions that it is absurd to think that anyone, outside of a kangaroo, would have a pocket large enough to comfortably carry such books.
It cannot be denied that the public has an easement of passage over the sidewalks at South 52nd and Chestnut Streets, nor can it be controverted that the public has the right to buy newspapers at this point. Thus, if newspapers may be purchased here, perforce they must be sold here. But Manlin is not selling newspapers on the sidewalk at South 52nd and Chestnut Streets. He asks this Court to decide this lawsuit in his favor on the proposition that he has the right to dictate who shall sell newspapers there. If the law *338were to recognize such a right, it would he a body blow to Freedom of the Press. Under such a right, an aggressive and rapidly moving entrepreneur could dominate a large part of the city through the process of quickly installing stands at various corners and then holding off newspaper publishers from delivering papers to such corners unless they would meet such demands as he might make. It is enough merely to state such a hypothesis in order to demonstrate its incompatibility with the concept of Freedom of the Press.
To uphold Manlin’s position would mean that a vendor of newspapers at a certain corner could give up his stand and then, years later, return to dispute the right of another vendor to sell newspapers at that same corner. To allow such control after voluntary abandonment would be to introduce grave disorder into the regular sale and distribution of newspapers, a business acknowledged by law to be a matter of public necessity.
In comparing the respective rights of the parties in this controversy the chancellor said: “No injunction should be issued because the injury to Braits, if any, is slight, whereas the damage to the defendant caused by a restraining order might well be substantial and irreparable — certainly out of all proportion to the benefits which the plaintiff might derive from the issuance of such order.” But it is not a matter of comparison of rights. Manlin has no authority at all on the sidewalk except that which he enjoys with the whole public. He may walk on the sidewalk, he may linger on it, he may window-shop from it, he may sell newspapers from it but he may not stake out from it a large space and call it permanently his own.
And then, even if it may be assumed that because a news-vendor has sold newspapers at a particular corner for a long time he has priority over a newcomer who challenges his place, he certainly cannot dictate *339who is to sell newspapers at that corner after he has abandoned it.
The final decree issued by the court below carried the astonishing provision that Manlin could maintain the establishment on the sidewalk at South 52nd and Chestnut Streets through his “agents, employees or licensees.” In other words he was given a permanent proprietary right in the sidewalk, a proposition which finds no support or even shadow of support in all the lawbooks of the land. If Manlin can sell a so-called privilege or right in a business on a public sidewalk, what is to prevent him from asserting a privilege to cut flowers in a municipal conservatory to vend at a profit? Why may he not have a right to sell the shade under oak trees growing in Fair-mount Park?
The lower court in its adjudication did not specify how long Manlin’s shadow was to cast its obscuration over the Brait property, so that, according to the lower court, it could go on indefinitely. Thus, Manlin, who does not live at 46 South 52nd Street, does not work there, owns no property there, possesses no easement there, would yet have a continuing proprietary right there. This would be an authority, since it was not limited in time, which would know no sunset and suffer no eclipse. No matter where Manlin might go, no matter how long he might live, he would always have the right to dominate the sidewalk at 46 South 52nd Street with his kiosk and its variegated contents.
The Majority of this Court has properly stated that Manlin has no such right, and of course, I concur in that conclusion. Unfortunately, however, the opinion filed by the Majority does not stop there. It goes on to assert that no one has the right to maintain a newsstand at 46 South 52nd Street, and then, like the North Wind, which does not heed its strength, it proceeds to blow all the newsstands in Philadelphia off the streets and sidewalks. The Majority’s ruling in this respect is *340alarming and shocking. It will invite chaos and turbulence into the orderly business of newspaper vending in Philadelphia; it will encourage a multitude of lawsuits because every property owner whose sidewalk is shadowed by a newsstand, large or small, will now be authorized to oust the newsvendor; it will set off fights between rival newsvendors for the more lucrative street corners; it will raise legal clouds of ambiguity and fogs of uncertainty over all the sidewalks in the cities of Pennsylvania. These sorry results are additionally melancholy to behold because they are entirely unnecessary, wholly uncalled-for, and not dictated by the slightest semblance of threat to existing institutions.
This Court has said many times that it will not go beyond the severely circumscribed boundaries of a lawsuit, as definitively marked by the pleadings and the evidence. In this case, however, the Majority has enlarged the scope of the lawsuit as a river breaks down its banks and inundates the surrounding country. The controversy which arose over the newsstand at one precise spot in Philadelphia will now spread like unrestrained storm waters to every newsstand corner in the City. If it does not, it will only be because of the restraint which will be exercised by the parties involved, and not because of any bridle placed by this Court upon the passions of ardent competitors.
There was only one question involved in this appeal and that was whether Manlin had the right to monopolize a piece of land to which he had no title whatsoever and from which he has now been absent for five years. That question, incidentally, the Majority has utterly failed to answer. It has not even discussed it. Instead of addressing itself to that issue, it proceeds to enunciate a decision which is wholly extraneous to the proceedings, and, worse yet, decides that extraneous question in a wholly illogical and unconstitutional fashion. The Majority Opinion says: “The decision in *341this case, thus, boils down to a very narrow issue. Has the use of stationary newsstands been sanctioned by the City of Philadelphia as being necessary for the dissemination of news and information to our citizenry?” But the sanction of the City of Philadelphia for the use of stationary newsstands is not necessary under any statute and certainly not under the constitution.
The Majority Opinion says: “A purely private use of the public highway with no reasonable benefit to the public generally not only may be prevented by the municipality, but is not even permissible.” This is a wholly irrelevant observation. Of course, no one may use the public highway for a private purpose unrelated to a reasonable benefit to the public. But that is not this case! We have here a public use of the highway for the decided benefit of the public.
The constitutional right to print a newspaper obviously includes the right to sell it, and the right of the public to buy the newspaper encompasses the right to obtain it without intervening physical barriers. The Majority concedes to newsvendors the right to sell newspapers on the city’s sidewalks but would deny them the facility, lacking an agreement with the land proprietor, to maintain a newsstand from which to sell them.
The Majority’s decision runs counter to a pronouncement of the Supreme Court of the United States on the subject under discussion. In the case of Hague v. C.I.O., 307 U. S. 496, the highest Court of the land declared: “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of *342the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.” (Emphasis supplied).
To deny the use of newsstands in Philadelphia is to abridge the rights of the citizens to be informed because, without newsstands, the distribution of newspapers to the transient public is made almost impossible. The Majority Opinion ignores realities. It draws the blinds of the windows facing the streets of Philadelphia where, it is quickly evident, the newspapers of today are so large and bulky that no person, short of a Goliath, can carry on his person at a busy street corner enough newspapers to satisfy the needs of the passing and hurrying throngs unless he is being constantly re-supplied with additional quantities. And where would those additional quantities come from? Prom a truck coming by every 10 or 15 minutes? And what would this do to traffic?
The daily Philadelphia newspapers are enormous compendiums of the world’s news, supplemented by pictures, editorials, cartoons, columnar comment, together with advertisements, sporting pages, family pages, theatre, radio, television features, etc., etc. The Philadelphia Inquirer for Tuesday, November 5, 1959, contained 54 pages, the Philadelphia Bulletin for Monday, November 4, 1959, contained 72 pages. The Sunday editions of these papers are miniature libraries. The Philadelphia Inquirer of Sunday, November 1, 1959, contained 142 pages, plus 56 pages of magazine. The Sunday Bulletin contained 110 pages plus 72 pages of magazines. How tall would a newsvendor have to be and how long would his arms have to stretch to handle *343more than a score or two each of these editions? And then what kind of a colossus would have to be recruited to manually vend the New York Times? The New York Times of Sunday November 1, 1959 contained 264 news pages and 248 pages of magazines pages.
Whether one likes it or not, some kind of a structure is indispensably required from which to sell the newspapers of today in a large city. The size of the newsstand, of course, is a matter of individual application. Once it goes beyond the needs of the transient newspaper buyers and takes on the aspect of a sprawling mercantile establishment, it transgresses constitutional rights and the abutting landowner may go into court for relief. Certainly a newsstand which, because of size, shape, location, maintenance or for any other reason, becomes a nuisance, can be enjoined as a nuisance. But to say that newsstands may not be permitted without the consent of the adjacent property owners is to curtail freedom of the press.
We have seen that, because of the magnitude of the Philadelphia and New York newspapers, it is physically impossible for a newsvendor to sell them from his person. Thus, unless he has something on which to rest the huge bulk of his newsprint, it will be impossible for the newsvendor to sell newspapers, and if the property owner may prevent the erection and maintenance of a suitable stand, the inevitable result will be that the public will be deprived of the privilege of purchasing newspapers at that particular point. This would create a situation which the Constitution would look upon with grave disapprobation and would give rise at once to Court action to compel the property owner to permit the use of a reasonable device to support the newspapers while they are in the process of being sold.
*344Considering tlie size of newspapers, as already discussed, the density of the traffic at 52nd Street and Chestnut Street, and the impossibility of having fresh newspapers hauled to the intersection at sufficiently frequent intervals to keep the newsvendors there constantly supplied so as to satisfy the passing public, it is obvious that a newsstand at 52nd and Chestnut Streets is a public necessity. It, of course, should not be any larger than is absolutely necessary to hold newspapers for immediate sale, and if the vendor transgresses in this respect the property owner should have immediate redress in court.
It would appear, in the hurly-burly existence of this unphilosophical age, that consistency is no longer the jewel it used to be, so that one should not be too much disappointed if he finds the Majority Opinion in this case laying down propositions which it later flatly contradicts. For instance, it says: “Whether and how such newsstands shall be permitted is for the city and not the courts to decide.” Then, after making that statement, it proceeds to decide that newsstands shall not be permitted in Philadelphia. Although it says that the Courts should not decide whether and how newsstands should be permitted in Philadelphia, it proceeds to cite Chicago legislation as a demonstration of the “detailed regulation which should characterize an enactment covering” newsstands in Philadelphia.
Still ignoring the shining gem of consistency, the Majority Opinion quotes Pennsylvania legislation which already authorizes the use of newsstands on the streets of Philadelphia and then says that legislation to that effect is imperatively required.
The Majority Opinion calls to our attention the Act of Assembly (April 16, 1838, P. L. 626) which empowers Philadelphia to pass ordinances to regulate reasonable occupation of the sidewalks. The Majority Opinion reminds us of a decision of this Court which *345affirms this right on the part of Philadelphia to legislate regarding sidewalks: Walnut & Quince Street Corp. v. Mills, 303 Pa. 25. The Majority Opinion then tells us how, acting under that authority, the City of Philadelphia, by Section 9-205 of the Code of General Ordinances of the City of Philadelphia (1956) provides that: “ ‘the display, offering for sale and sale of books, magazines and newspapers, and the placing and maintenance of stands for such articles’ ” shall be exempt from restrictions on the use of sidewalks.
The Majority Opinion then goes on to say: “And subdivision (3), while prohibiting the display or sale of any goods, wares or merchandise, or the placing or allowing of any stands to remain on the sidewalks of the streets designated therein, incorporates by reference the express exemption of the sale of newspapers, hooks and magazines and the placing and maintenance of stands therefor, as provided in subdivision (2) (b).” (Emphasis supplied.)
And then, after laboriously and extensively citing all these authorities which definitively declare that the law specifically exempts newsstands from prohibition against stands on the city sidewalks, the Majority asks itself: “The question we now face directly is whether the exemption contained in these ordinances constitutes the requisite municipal sanction and a sufficient surrender of the public easement for a public use.”
But what further sanction is required? What else can the City Council of Philadelphia do which it has not already done to show that it authorizes and permits newsstands on city sidewalks? The Majority says: “Such authority must be by legislative grant in clear words or by unavoidable implication.” How clearer can words be than those in the cited code?
An exemption is often of greater authoritative effect than an outright grant because the exemption as*346sumes that the right therein saved is one which antedates the announcement of a numerous prohibition. For instance, The Vehicle Code which restricts speed on the Pennsylvania highways to a certain maximum of miles per hour exempts police cars and ambulances from those limits because, obviously, the security of the State and the life and health of its citizens are inherent rights which surpass regulations governing everyday activities. Thus, also, the exemption of newsstands from the limitations on the use of sidewalks are obvious constitutional rights which are mentioned only as a reminder and not because they need to be expressed in order to denote legality.
There are many other exemptions from restrictions on the use of sidewalks which do not require specific legislative grants in order to become legal. Certainly the Majority would not require specific legislative grants to establish the legality of using sidewalks for fire hydrants, fire and police boxes, mail boxes, traffic signals, subway entrances and stops, utility poles, wastepaper receptacles, bus stop areas and markers.
The Majority cites with approval the case of Tua v. Brentwood Motor Coach Co., 371 Pa. 570, and then, continuing to drop overboard the pearls of consistency, ignores the very language which it quotes from that decision. In that case, Justice Stearne, speaking for the Supreme Court, said: “In evaluating the social desirability of having neAvs stands on street corners, it is appropriate to consider the legislative pronouncement of the Council of the City of Pittsburgh contained in Ordinance No. 375, December 24, 1934, which was introduced into evidence. The following sections are pertinent: ‘Section Two. It shall not be lawful to put or place any box or boxes, barrel or barrels, or other articles that may tend to obstruct the free use of any sidewalk upon any of the sideAvalks Avithin the limits of the city, except articles temporarily placed thereon *347for the purpose of loading or unloading, removing or storing away.
“ ‘Section Three. The provisions of this ordinance shall not apply to the sale, storage, or display of newspapers or periodicals.’
“While the ordinance was obviously intended to expedite pedestrian traffic on sidewalks and was not directly concerned with the hazards created by such articles, it is at least evidence that the legislative body of the city was aware of the existence of stands like the one here involved and sanctioned their continued use. It is extremely unlikely that the city would have done so had it believed that such use involved an unreasonable risk. In any event, the importance of the press and of an efficient means of distributing newspapers among the populace of a large city are too apparent to require lengthy exposition.”
Although the Majority Opinion approves the statement of Justice Stearne that “the importance of the press and of an efficient means of distributing newspapers among the populace of a large city are too apparent to require lengthy exposition,” the Majority Opinion nevertheless goes into a lengthy exposition which is not only self-contradictory, but throws the whole subject of sidewalk regulation into dire confusion.
In the eight years I have been on the Supreme Court I do not know of an Opinion which posed so many authorities in behalf of a certain position and then decided exactly to the contrary. A reading of the Majority Opinion is like watching the master of a ship who charts a course which points with unequivocal, geographical, navigational precision towards the North Pole, and then, with an arbitrariness suggestive of a shattering of the compass, decides to sail his ship in the direction of the South Pole.
*348The Majority Opinion, I am sorry to say, has settled nothing. On the contrary, it has opened up a Pandora’s Box of problems and questions which will throw Philadelphia newsvendors into consternation, a consternation from which the public can draw no benefit and, in fact, will subject them to annoyance as well as deprivation of the right to buy their newspapers untrammeledly and freely, as becomes a city dedicated to the cause of freedom.
The Majority Opinion ends with the statement: “Since defendants do not have permission to maintain the newsstand either from the City or from the fee-owner, the maintenance of such a newsstand constitutes a trespass upon plaintiffs’ property and may be enjoined.” Does this mean that Manlin may maintain a newsstand in front of the Braits’ property, if he gets a permit from the City, even though the Braits’ object? Does this mean that if Manlin gets a permit from the City, he may monopolize the sidewalk at 46 South 52nd Street, even though he does not personally sell newspapers there? Does this mean that, possessing a City permit, he may even, as an absentee landlord, barter the rights to the sidewalk, as against the property rights of the Braits? Does the Majority Opinion mean that the owner of every property abutting on a sidewalk may now upset the newsstand in front of his property and keep away newsvendors with every force he can muster? Does the Majority Opinion mean that City Council must reenact the ordinances which are already on the books, and, if other ordinances must be passed, how are they to be worded? The Majority Opinion says that the legislative grant must be conveyed in “clear words.” What are those clear words? They certainly do not appear in the Majority Opinion.
Thus, to that part of the Majority Opinion which will make a potential Donnybrook Fair of every newsstand site in Philadelphia, and possibly in other Pennsylvania cities, I vigorously dissent.