242 F. 321 | D. Minnesota | 1917
This suit is brought by the plaintiff against the members of the Public Safety Commission of Minnesota, the city of Minneapolis, its mayor its chief of police, and its city attorney, seeking to enjoin the defendants from enforcing an order of the Commission which is known as “Order No. 7,” or from enacting any ordinance or regulation enforcing the same, or from threatening to prosecute or from prosecuting for nonobservance of said Commission’s order.
The motion now under consideration is a motion made on behalf of the plaintiff for a preliminary injunction, and has been heard on a verified amended bill, several exhibits which have been introduced, and some little oral testimony on behalf of plaintiff, and on behalf of defendants a return to the order to show cause, consisting of a verified answer, certain affidavits, several exhibits, and some oral testimony.
The bill of complaint sets up, among other things, the official character of the several defendants, and-that plaintiff is, and has been for some time, the proprietor of a saloon and restaurant in the city of Minneapolis located at 25 Washington Avenue North; that he has built up a large and lucrative business, and that he has been conducting the same in accordance with the laws of the state of Minnesota and
The answer of the defendants admits the passage of the act of the Legislature, and states certain facts and circumstances in view of which it was passed, admits the issuance of Order No. 7, and denies the other allegations of the complaint.
Taking up the merits of the motion, the first question is: What is it that is sought to be enjoined by plaintiff? I have already read the prayer for relief contained in the bill. It has reference to Order No. 7. Now there are a number of things in Order No. 7, about which either there is no complaint in this bill, or no showing made upon which preliminary injunction can be based. For instance, there is no complaint here as to that provision of the order covering the closing of saloons until 8 o’clock on the following day, instead of 5 o’clock on the following day; nor is there any complaint, or, if there is, there is no showing for an injunction, on the ground that no women or girls be permitted to enter such saloon, or be served therefrom at any time, because plaintiff’s testimony is that he had no such trade; nor is there any complaint, or, if there is, there is no showing for an injunction, based upon the order so far as it touches dancing performances, because the evidence is that there was no such performance in the plaintiff’s establishment.
The question of delegation of power by the Legislature, and especially legislative power to other branches of the government, to administrative boards or to individuals, has been a question that has caused a great deal of controversy in the courts, not only in the state courts, but also in the federal courts. It has been said that the Legislature makes the law, that the executive executes the law, and that the judiciary expounds or determines what the law is. Of course, that is true as a general statement; but as a matter of fact it is of little help in any particular case, because practically all the cases that arise are border line cases, and the question to be determined is whether the particular act is a legislative act, or whether it is a judicial act, or whether it is an
“Before passing to the question of procedure, we think it necessary to do no more than say that a contention which was pressed in argument, and which it may be was indirectly referred to in the opinion of the court below, that the authority given by the section to the Reserve Board was void, because conferring legislative power on that board, is so plainly adversely disposed of by many previous adjudications as to cause it to be necessary only to refer to them.”
Then they refer to a number of cases, and among others to the case of the United States v. Grimaud, 220 U. S. 506, 31 Sup. Ct. 480, 55 L. Ed. 563, which was a case where Congress had passed an act with reference to the preservation of forests in the United States, and had placed the carrying out of the plan in the hands of the Secretary of Agriculture, with power to make rules and regulations, and providing that violations of those rules and regulations should be followed by punishment. It was claimed that this was giving the Secretary of Agriculture power to make a law. It was held by the Supreme Court that it was simply a delegation to him of administrative power, and although he had made rules and regulations, violation of which was followed by punishment, yet nevertheless this was not a legislative act on his part within the meaning of that term in the oft-stated principle that a legislative act could be passed by Congress only, and not by boards or by individuals.
There are many decisions in the state of Minnesota, also, as to this power of delegation, and a number of them have been referred to in arguments of counsel at this hearing. The tendency, not only in Congress, but in state Legislatures, is more and more to commit to administrative boards, or to individuals, or to some other branch of the government, administrative details. In the case of Alexander v. McInnis, 129 Minn. 167, 151 N. W. 901, the court in its opinion said, quoting from a previous decision of that court:
“The marked tendency of legislation in recent years, not only in this state, but in other states, has been, to a large degree, to break away 1'rom the theory of three separate and independent departments of government, by imposing upon*326 other departments duties and powers of a legislative character, which the courts have been inclined to sustain. Perhaps few, if any, cases are to be found, however, where statutes imposing purely legislative duties and powers upon the courts have been upheld; but the authorities are numerous, sustaining statutes which impose upon the courts powers involving the exercise of both judicial and legislative functions — such as the condemnation of land for public purposes, the appointment of commissioners of election in proceedings for adding territory to municipal corporations, and laying out and establishing highways. The proceedings provided for by the statute under consideration involve the exercise of both legislative and judicial powers. The question of the propriety or. necessity of public ditches to drain marshy or overflowed lands is one of legislative character. The condemnation of land through which such ditches may be constructed, the assessment of damages, and the determination of the legal rights of parties affected are judicial. The exercise of all these powers is involved in proceedings under this statute.”
It must be taken, then, as true in Minnesota that the tendency is more and more to leave administrative details of legislation to either some other department of the government or to boards or to individuals. It need not, however, be decided in this case whether that has been done in chapter 261, Laws 1917. It is possible that this case may be disposed of upon a much narrower basis.
Order No. 7, which is attacked, reads as follows, so far as appertains to this case:
“The Minnesota Commission of Public Safety hereby finds and declares it necessary and proper for the public safety, for the protection of life and property, and as a matter of military expediency and necessity:
“That all licensed saloons in the state of Minnesota be closed at 10 o’clock p. m., and remain closed until 8 o’clock the following day, and that no intoxicating liquors be sold, served, or otherwise disposed of therein between the hours last above stated.”
“That the city council, board of trustees, or other governing body of all municipalities in the state of Minnesota forthwith proceed to enact ordinances executing the provisions of this order and prescribing suitable penalties for violations of such ordinances,” etc.
Narrowly construed? this Order No. 7 is simply an announcement of certain findings or a declaration by the Public Safety Commission that certain things are necessary and proper for public safety, for the protection of life and property, and as a matter of military expediency. If any one can be considered to have been ordered to do anything, it is the city councils, boards of trustees, or other governing bodies of municipalities in the state of Minnesota. It is possible that the grammatical construction of the order will allow that interpretation to be placed upon it, and that it is a direct order to the city council, although I think it is fairlv open to argument that it is not such order, even as to the city council. But, conceding that it is an order to the city council, the council of the city of Minneapolis and the authorities of the city of Minneapolis are not here making any complaint. They are not
But I do not think that an injunction should issue if a much broader construction is given to Order No. 7 than I have indicated. Let us look at the law under which this Commission of Public Safety was established. It is entitled “An act providing for the Minnesota Public Safety Commission, defining1 its powers and duties in event of war and otherwise, and appropriating money for carrying out the purposes thereof.” There are contained in that act ten sections. The first section simply is the creating part of the act, creating the Commission. The second provides for organization of the board. The fourth section grants power to the Commission to make provision for the comfort of certain persons in military and naval service, and to provide and pay for the support and maintenance of any person or persons dependent for support upon Minnesota soldiers in the military service of the state of Minnesota or of the United States, while such soldier is in service. Section 5 provides for the payment by the Commission of SO cents per day additional pay to enlisted members of the Minnesota National Guard, for their period of service on the Mexican Border. Section 6 provides for the payment of National Guardsmen from the time of mobilization until they are mustered into the service of the United States government. Section 7 relates to enlistment, organization, and maintenance of a Home Guard.
It is thus seen that the powers conferred on the Commission are of a broad and varied character. In this case it is section 3 that is particularly attacked. Section 3 grants, in addition to the powers granted in sections 4, S, 6, and 7, certain special powers, five in number, and also certain general powers. The special powers are not attacked in this proceeding. It is the general powers contained in the first paragraph of section 3 that are attacked. That paragraph reads as follows :
“In the event of war existing between the United States and any foreign nation, such Commission shall have power to do all acts and things non-inconsistent with the Constitution or laws of the state of Minnesota or of tha United States, which are necessary or proper for the public safety and for the protection of life and public property or private property of a character as in the judgment of the Commission requires protection, and shall do and perform all acts and things necessary or proper so that the military, civil and industrial resources of the state may be most efficiently applied toward maintenance of the defense of the state and nation and toward the successful prosecution of'such war, and to that end it shall have all necessary power*328 not herein specifically enumerated and in addition thereto the following specific powers.”
That section contemplates several ends to be attained: First, the public safety is to be guarded. Protection is to be afforded to life and public property, and also to private property of such a character as in the judgment of the Commission requires protection, and, further, the Commission is ordered to do all acts and things necessary or proper so that the military, civil, and industrial resources of the state may be most efficiently applied for the maintenance of the defense of the state and nation, and toward the successful prosecution of such war.
The only question that remains in the case is whether or not the Legislature of the state of Minnesota could authorize the Commission to do the acts here in question, namely, to issue Order No. 7. It is claimed that the Legislature could not so authorize the Commission, because it would be a delegation of legislative power. As has been stated here upon the argument by counsel for the defendants, the authorities are almost overwhelming to the effect That a federal court is very loath to declare a state statute contrary to the statq Constitution, when that state statute has not received an interpretation at the hands of the Supreme Court of the state. That doctrine has been announced by the Supreme Court of the United States, not only in the case of Louisville & Nashville Railroad v. Garrett, 231 U. S. 298, 34 Sup. Ct. 48, 58 L. Ed. 229, but also in the case of Prentis v. Atlantic Coast Line, 211 U. S. 210, 29 Sup. Ct. 67, 53 L. Ed. 150, also in the very recent case of Pullman Co. v. Knott, 235 U. S. 23, 35 Sup. Ct. 2, 59 L. Ed.
That being the view that I take of this law and of this order, it follows that the law is not in contravention of the state Constitution, and it follows, also, that the act of the Commission here complained of is not without the purview of the statute, chapter 261, but is within the purview of the statute; and, that being the case, the plaintiff is not entitled to a preliminary injunction, and the motion is denied.