105 Cal. 558 | Cal. | 1895
Lead Opinion
The petitioner is under sentence of imprisonment for a violation of an ordinance of the city of Redlands, and seeks to be discharged on habeas corpus
The ordinance is entitled “An ordinance to promote safety and security to public travel by prohibiting the beating of drums and certain other noises on the traveled streets or avenues of the city of Eedlands, without special permission therefor, and authorizing such permission in certain cases”; and in the body of the ordinance it is made an offense punishable by fine or imprisonment for any person to, among other things, “ beat a drum” upon any traveled street of the city “without special permit in writing so to do first had and obtained from the president of the board of trustees of said city, which permit the president of said board may grant whenever, in his judgment, the issuance of the same shall not conflict with the aforesaid purposes of this ordinance, and not otherwise, provided, that such permit shall specify the time when, and the street or avenue where, any of said instruments shall be so used as aforesaid.” Petitioner was convicted of beating a drum on the traveled streets of said city without a permit, contrary to the said provisions of said ordinance. It appears from the petition that petitioner had been in the habit of beating a drum on the streets daily; and that upon his application to the president of the board for a permit “ to engage in beating a drum, as he had been heretofore doing,” the permit was refused, although, as appears from the petition, he was given a permit to beat his drum upon a certain occasion. He claims the right to beat his drum—not on special occasions only, as other people—but every day, without a permit, and despite the ordinance.
There is no need of discussing the general power and right of a city to prohibit such noises on the streets as those made by the beating of drums. We do not understand counsel for petitioner as contesting such power. At all events it certainly exists. But the point urged by petitioner is that the ordinance is void, because it gives a certain officer authority to "give permits
The continuous or daily beating of drums on the streets of a city would be an intolerable nuisance, endangering the safety of teams and the occupants of vehicles drawn by animals, as well as of pedestrians liable to be injured by runaways, and stunning the ears with din so constant as to be almost insufferable. On the other band there is usually no objection to such noises on a few special occasions, either when there are patriotic celebrations generally participated in by all the people, or processions of a part of the people united in civic societies, political parties, etc. These occasions are comparatively few and usually well known, so that people are prepared for them; and the processions and drums are generally preceded by policemen who give notice of the approaching uproar. But how can these occasions be provided for? By an ordinance which shall anticipate and state in detail beforehand every occasion on which the noises may be made? Such a thing is practically impossible. No human foresight could conjure up all the circumstances under which the people might want a band (with a drum) on the streets. It would not do to name legal holidays alone; that, for obvious reasons, would be too narrow a provision. Neither would it do to single out, in addition to legal holidays, certain other enumerated days, as, for instance, the first Monday of every month; the president of the United States or some other distinguished man whose advent should be'celebrated with drums might come on Tuesday. Neither would it be possible to schedule the kinds or characters of occasions
In dealing with this and similar questions—such as repairs of wooden buildings within fire limits, carrying concealed weapons, using public buildings and grounds, ringing bells on buildings where many operatives are employed, haranguing on the streets by lecturers, preachers, etc., singing or playing on musical instruments on the streets, and the like—our federal, state, and municipal governments have always recognized the practical impossibility of providing in advance for proper exceptional cases, and the necessity of giving to a public officer some discretion in the premises; and laws and ordinances based on that principle have nearly always been upheld when subjected to judicial test. Laws are not made upon the theory of the total depravity of those who are elected to administer them; and the presumption is that municipal officers will not use these small powers villainously and for purposes of oppression and mischief. Of course it is impossible to state in terms the extent or the limitation of what is known as the police power; and courts have not attempted to do it. Whether or not that power has been exceeded in particular cases must be determined as the cases arise; and, to find the law applicable to a particular case, we must look to see what courts have held in similar cases. And we find that statutes and ordinances similar in character to the one in question in the case at bar have been sustained in most of the cases to which our attention has been called. We will notice a few of them. ,Statutes and ordinances have been sustained prohibiting awnings without the consent of the mayor and aldermen (Pedrick v. Bailey, 12 Gray, 161); forbidding orations, harangues, etc., in a park, without the prior consent of the park commissioners (Commonwealth v. Abrahams, 156 Mass. 57), or upon the common
In this state it was held in Ex parte Casinello, 62 Cal. 538, that an ordinance giving to the superintendent of public streets the power to determine where, either on a public street or on private premises, any person could deposit “ any glass, broken ware, dirt, rubbish, garbage, or filth,” was a salutary and valid “ police regulation.” In the case of In re Guerrero, 69 Cal. 88, it was held that the city council had authority to make the issuance of a license for the sale of liquors conditional upon the appellant's obtaining a permit from the board of police commissioners. In Ex parte Tuttle, 91 Cal. 589, an ordinance prohibiting the selling of pools on horseraces except within the inclosure of a racetrack where the race is to be run was upheld, and it was declared not to be void because its effect might be “ to confer a special privilege or benefit upon those who own or control the racecourses.” In Ex parte Fiske, 72 Cal. 125, an ordinance was upheld which prohibited the repair of a wooden building within certain fire limits without permission in writing signed by a majority of the fire wardens, and approved by a majority of the committee on fire department and the mayor. In that case we, said as follows: “ It is clear, however, that a literal compliance with the regulation prohibiting the repairing of a wooden building might work, in some instances, useless hardships. The repair of a leaking roof or a broken window would be necessary to the comfort and health of a family, without enhancing the danger which the framers of the ordinance sought to provide against; and repairs of a more extensive character might be made to particular houses standing in particular localities, without increasing the fire risks. And it is equally clear that no general rule could be established beforehand
The foregoing authorities, in our opinion, clearly establish the validity of the ordinance here in question.
Counsel for petitioner rely on some cases, particularly State v. Dering, 84 Wis. 585, 36 Am. St. Rep. 948, and In re Frazee, 63 Mich. 396, 6 Am. St. Rep. 310, which, at first blush, seem to conflict with the general current of authorities as above presented. But upon closer examination they will be found to go upon a distinction or principle, whether sound or not, that is not applicable to the case at bar. They are based upon the theory that the lawful inherent rights of men cannot be entirely suppressed or destroyed by statute or ordinance, but can only be regulated, and that all regulations of such rights must be uniform, etc. The cases cited all deal with ordinances regulating the right of the people to have processions or parades in the streets; and it is this right that is discussed, although the accompaniment of music is mentioned in some of the ordinances. In State v. Dering, 84 Wis. 585, 36 Am. St. Rep. 948, the petitioner “ was convicted of parading the streets.” Row, the public have an undoubted right to travel on the street; that is what a street is for. And to march along a street in a procession is merely to exercise the right to travel on it. Therefore, if the cases under review be sound, this right can only be regulated, and cannot entirely be suppressed; and the regulation must be uniform, although it is difficult to understand how the crowded streets of a city could be practically regulated in this respect without vesting some discretion in the police
In the ordinance involved in the case at bar there is no attempt to suppress processions or parades. It does not interfere with travel, but seeks to promote the comfort, convenience, and safety of travelers, by preventing that which .makes traveling uncomfortable and dangerous. Its provisions do not affect private premises, but refer solely to public traveled streets. It prohibits no business which every one has a right to pursue. As the wants and comfort and pleasure of the public require that the thing prohibited, although in the abstract injuri
In our opinion the ordinance here involved is valid, and the petitioner should be remanded.
The writ is dismissed, and the petitioner remanded to the custody of the marshal.
Garoutte, J., Van Fleet, J., and Beatty, C. J., concurred.
Dissenting Opinion
The authority of the city to make police regulations is given by the constitution, and, although it is derived directly from the people, instead of mediately through the legislature by means of the municipal government act, yet it is a legislative power, and, like any other legislative power, is to be exercised by the body to which the power has been intrusted. The power to make laws is a sovereign power, and its exercise by the legislative body of a municipality,
Accordingly, it has been held that an ordinance conferring upon the mayor the right to determine whether a stationary steam-engine should be removed was void, as conferring upon him a power which could only be exercised by the city council (Mayor of Baltimore v. Radecke, 49 Md. 217; 33 Am. Rep. 239); that an ordinance providing that no person should erect any building within the city limits without having obtained permission from the board of aldermen is void, since it does not prescribe a uniform rule of action for governing the exercise of their discretion (State v. Tenant, 110 N. C. 609; 28 Am. St. Rep. 715); that an ordinance forbidding the erection of livery stables in any block without the consent of the owners of land in the block is invalid (City of St. Louis v. Russell, 116 Mo. 248);
There are many cases in which ordinances containing such a provision have been upheld, but in these cases the effect of such a provision upon the ordinance was not considered by the court, the only question presented to it for its consideration being the validity or invalidity of the ordinance upon other grounds. In these cases the act of the court in sustaining the ordinance cannot be regarded as an affirmance of the power to include this provision. Ordinances relating to health and security from fire, which prohibit certain acts without a permit from officers in charge of those departments, have been sustained upon the ground that the safety of the citizen from disease and fire were of a peculiar character, demanding the supervision of officers particularly skilled in reference thereto, and to whose judgment the matter could be more appropriately referred. The principles applicable to these ordinances, and under which they may be upheld, have, however, no application to the ordinance under discussion. There is another line of cases in which ordinances have been upheld which reserved to the city council, or to the legislative body itself, the power to ex
The ordinance under consideration falls within the rule hereinbefore referred to, and should be declared invalid. It confers upon the president of the board of trustees the power to suspend its operation in favor of any individual, whenever he may elect, and to deny the same favor to another who may be equally entitled to its suspension. It, in fact, confers upon him the power to determine the extent to which the ordinance shall be operative, which is in reality the power to determine whether there shall be such an ordinance. The only
In my opinion the ordinance is invalid, and the prisoner should be discharged.
De Haven, J., and Fitzgerald, J., concurred.