38 Cal. 702 | Cal. | 1869
The return of the officer to whom these writs were directed, shows that the petitioners are in his custody by virtue of final process, issued from the Police Court of the City of Sacramento, which process is set out - in full in the return, and shows that the petitioners have been convicted in that Court of the violation of a city ordinance, entitled “Ordinance No. 91, to prohibit noisy amusements and to prevent immorality,” and sentenced to pay a fine of ten dollars each, and, in default of payment, to be imprisoned for the space of five days in the city prison.
On the part of the petitioners, a discharge from custody is claimed, upon the ground that the ordinance under which they were convicted, is repugnant to the Constitution of this
“Ordinance No. 91. —To prohibit noisy amusements and to prevent immorality. Passed May 11, 1868.
“The Board of Trustees of the City of Sacramento ordain as follows :
“Section 1. It shall be unlawful within the city, in the night time, after twelve o’clock midnight, for any person to play or make a noise upon any musical instrument in any drinking saloon, or beer cellar, or to permit or allow the same by the proprietor, agent or manager thereof.
“Sec. 2. It shall be unlawful for any female person, in the night time, after twelve o’clock midnight, to be in any public drinking saloon, beer cellar or billiard room within said city, where vinous, malt or spirituous liquors are sold or given away, to be drank on the premises. ”
These two sections constitute the entire ordinance. But by a statute of the State, every violation of a city ordinance of the City of Sacramento, is declared to be “a misdemeanor or public offense” (Statutes 1863-4, p. 295); and by still another statute of the State, it is provided that “misdemeanors for which no punishment is specially prescribed,” shall be punished by fine not exceeding $500, or imprisonment not exceeding six months. (Statutes 1850, p. 229, Sec. 143.)
It is claimed, First—That this ordinance is repugnant to the first section of the first article of the Constitution of this State, which reads as follows : “All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness.”
Second—That it is repugnant to the eleventh section of the first article of the Constitution of this State, which reads as follows : “All laws of a general nature shall have a uniform operation.”
Third—That it is repugnant to the first section of the fourteenth article of the amendments to the Constitution of the United States, which reads as follows: “All persons born or .naturalized in the United States, and subject to the
First—I am unable to perceive how this ordinance can be considered as injuriously affecting, in a constitutional sense, the natural rights of persons as enumerated in the first section of the first article of the Constitution of this State. Those rights are : First—The enjoyment and defense of life and liberty; Second—Acquiring, possessing and protecting property; and, Third—-Pursuing and obtaining safety and happiness. It is true that, in a certain sense, it may be said that the ordinance interferes with the enjoyment of life and liberty, if it be enjoyment to a female to be in a drinking saloon, beer cellar or billiard room, where vinous, malt or' spirituous liquors are sold or given away, to be drank upon the premises after twelve o’clock at night. In the same sense, it may be said to interfere with the acquisition of property, or the pursuit of business, if, as contended, it is to be construed as prohibiting -female proprietors of drinking saloons, beer cellars and billiard rooms, who manage and conduct the business in person, or by the help of female servants, from keeping them open after midnight. In the same sense, it may interfere with the pursuit of happiness, if it be happiness for a female to be at the places mentioned after midnight. But it never has been considered that this article of the Constitution was designed to prohibit the Legislature, or the law-makers of a municipal corporation, from all interference with the rights therein enumerated. A construction to that effect would defeat the very ends and objects of the social compact.
Governments are formed for the purpose of securing and protecting men in the enjoyment of their natural rights, and they would fail of accomplishing that object if the power to regulate or prescribe the mode in which such rights are to be exercised be not lodged in the law-making department.
It not being then, the purpose of the Constitution to inhibit all legislation affecting the natural rights of persons, but only such as may tend to their destruction or unreasonable restraint, the next question is, as to who is to be the judge of the necessity or reasonableness of prohibitory laws. Primarily, it lies with the people, when they adopt their Constitution, or establish their form of government. They may then establish such rules as they think proper; but, this being done, the residue of the power must be lodged in the law-making department of the Government. The power to determine what is necessary and appropriate legislation to accomplish the ends of government must necessarily be lodged in' some body or department, and, by the same necessity, that body "must be the Legislature, or the law-making power, subject to such restraints as may be imposed, as in the veto of the Executive, and the power of the Judiciary to annul, by its judgment, such laws as it may deem repugnant to the Constitution. If the Legislature abuse this power— the power to make laws, and to judge of their necessity and reasonableness—the remedy lies, under our form of government, with the people, through the ballot-box; and, if that proves ineffectual, a further remedy lies in revolution, or the right which the people have to change their form of government whenever it becomes oppressive, or fails to afford that security for the rights of men which it was intended to provide.
In view of these fundamental principles, Legislatures have enacted a variety of laws which, undoubtedly, in a general sense, affect the rights of life, liberty, property, safety
The foregoing principles being elementary, I deem it unnecessary to dwell longer upon their consideration, or to cite cases in their support. I have not referred to them because they are doubtful or debatable, but because the necessity has been forced upon me by the line of argument which has been adopted by counsel.
So far, then, as these cases turn upon the first point made by counsel, it only remains for me to examine this ordinance, so far as it affects the petitioners, by the light of the foregoing principles, and declare whether it is repugnant to them, or, on the contrary, is a constitutional contribution to
By the title given to the ordinance, the Board of Trustees have declared that their object, in passing it, was to prevent immorality. To accomplish that object was, as we have seen, not only strictly within their power as a local Legislature for the City of Sacramento, but it was also within their duty.
The only other question is one of fact, whether the presence of females, at the places and at the time named in the ordinance, is of a vicious and immoral tendency. That question of fact, as already suggested, it was the duty of the Board of Trustees to examine and determine. I must presume that they performed this duty, or rather, I must accept the passage of the ordinance as their verdict, that the presence of females, in the places and at the time mentioned in the ordinance, is of a vicious tendency, and hurtful to that sound public morality which, by common consent, is indispensable to the general well-being of society. While it is undoubtedly within the power of the Judiciary to annul or overrule the judgments of legislative bodies, if they are repugnant to the Constitution, yet the Judiciary is not allowed to do so except in very plain cases. Upon a mere question of fact, like the present, the judgment of the law-maker is quite as likely to be accurate and just as that of the law-expounder, and I, at least, do not consider myself privileged to review the finding of a body of men, who are, at least, as well qualified as myself—and, doubtless, much better—to pronounce judgment upon a question of this character. But, were it otherwise, and were I vested with the power to determine the whole question as to the necessity and reasonableness of this ordinance, as a means for the promotion of public morality, I should not hesitate to add my voice to that of the Board of Trustees and affirm their judgment as sound, and their action as not only just and reasonable, but as eminently wise and salutary. In my judgment, the ordinance is not repugnant to the first section of the first article of the Constitution of this State.
The best commentary upon the construction and meaning of the eleventh section of the first article of the Constitution of this State, which declares that ‘ ‘ every law of a general nature shall have a uniform operation,” with which I have ever met, is found in the context of the instrument from which it was borrowed, namely, the sixth section of the first article of the Constitution of Iowa, which reads as follows: “All laws of a general nature shall have a uniform operation; the General Assembly shall not grant to any citizen or class of citizens privileges or immunities, which, upon the same terms, shall not equally belong to all citizens. ” Here the precise language of our Constitution is used, but it is accompanied by other language, as part of the same sentence and expressive of the same idea, which serves to disperse the cloud which, by reason of the “glittering generality” of the language employed, hangs about the meaning of our Constitution. The meaning of the Constitution of Iowa, and, therefore, the meaning of ours, is obvious from the latter clause of the former Constitution. Its meaning, as has been repeatedly declared by the highest judicial tribunal in the State, is not that general laws must act alike upon all subjects of legislation, or upon all citizens and persons, but that they shall operate uniformly, or in the same manner upon all persons who stand in the same category; that is to say, upon all persons who stand in the same relation to the law, in respect to the privileges and immunities conferred by it, or the acts which it prohibits. (Smith v. Judge Twelfth Judicial District, 17 Cal. 554; French v. Teschemacher, 24 Id. 544; Bourland v. Hildreth, 26 Id. 256; Brooks v. Hyde, 37 Cal. 366.) It was not intended by this provision to
The common law and the laws of this State in relation to the competency of witnesses, have always, and still do, distinguish between persons, by providing that some shall be allowed to testify and others not. Under the common law and the laws of this State, some persons are allowed to make contracts, while the capacity to do so is denied to others—and the same person is allowed to make certain contracts, and denied the capacity to make certain other contracts ; and, especially, from the commencement of English jurisprudence down to the present time, have greater disabilities in respect to the acquisition and enjoyment of property, and the power to make contracts and transact business been imposed upon females than upon males. And so, on the other hand, have greater burdens always been cast upon males than upon females, as, for example, military and jury duties. If we enter the field of criminal law, the distinction is still maintained. Certain persons are declared to be incapable of crime, while the contrary is true of the great majority. Criminal laws are found, and they have always existed, which act upon males and not upon females, and others upon females and not males, as laws against rape, the crime against nature, and laws against prostitution and abortion. To give to this provision of our State Constitution, or to the Fourteenth Amendment of the Federal Constitution, in view of such legislation, the construction for which counsel contend, would be to erase three fourths of the statutes of
My conclusion is, that this ordinance is not repugnant to the eleventh section of the first article of the Constitution of this State, nor to the first section of the Fourteenth Amendment of the Constitution of the United States; and I am authorized to add that I have submitted my conclusions tq the judgment of two of my associates—Chief Justice Sawyer and Justice Sprague.— and that they have met with their approval.
The petitioners are, therefore, remanded to the custody from whence they came.