69 Minn. 265 | Minn. | 1897
The city charter grants to the common council the following powers, among others:
“To do all acts and make all regulations which may be necessary or expedient for the preservation of heaith and the suppression of disease and make regulations and to prevent the introduction of contagious diseases into the city.” Sp. Laws 1874, c. 1, subc. 4, § 3, subd. 33 (page 35).
“The common council of the city of St. Paul, in addition to its other powers, is hereby authorized to ordain such other and further ordinances, not inconsistent with the laws of the state, which shall be deemed expedient for the good government of the city, the protection of its property, the preservation of peace and good order, the suppression of vice, the benefit of trade and commerce, the preservation of health,” etc. Sp. Laws 1881, c. 93, § 16.
Under this grant of power, the common council passed Ordinance
Having been convicted in the municipal court of St. Paul of violating section 4 of this ordinance, by removing the contents of a cesspool without having obtained a permit so to do from the commissioner of health, and upon such conviction sentenced to imprisonment for ten days in the St. Paul workhouse, of which the respondent is the keeper and custodian, the relator, having alleged that his confinement was illegal, petitioned for, and was granted, a writ of habeas corpus to test the legality of his imprisonment.
The grounds upon which relator’s counsel claims that his imprisonment is illegal may be divided into two, viz.: (1) That the ordinance is void; and (2) that, even if the ordinance is valid, the complaint upon which he was convicted was insufficient.
After judgment the sufficiency of the complaint cannot be reviewed or considered on habeas corpus, but duly on appeal. Habeas corpus takes cognizance only of defects of a jurisdictional character, which render a proceeding not merely voidable, but absolutely void. State v. Sheriff, 24 Minn. 87. If the court had jurisdiction, and the ordinance is valid, so that a good complaint could have been made under it, then the judgment of the court was not void, but merely voidable, although the complaint may have imperfectly stated the facts constituting the offense charged.
It is urged that the ordinance is invalid, for the reason that the city charter gives the common council no authority to require licenses of those engaged in the scavenger business; that there is no express or specific grant of any such power; that the general grant of powers above enumerated merely gives the council authority to regulate such a business; but that power to regulate does not include power to license. As section 4, under which relator was convicted, applies only to licensed persons, it is undoubtedly true that, if the sections of the ordinance relating to licensing are invalid, section 4 would fall with them.
In determining whether the general powers thus granted include the power to license, it is important to consider, first, the definition of “scavengers” contained in the ordinance, and, second, the relation which the scavenger’s business, as thus defined, bears to the public
It is undoubtedly the law that the right to license must be plainly conferred, or it will be held not to exist. The power to make bylaws relative to specified lawful occupations, or the general power to pass prudential by-laws in reference to them, would not, as a general rule, authorize the municipal corporation to exact a license from those carrying on such business. But, in view of the very important bearing which the scavenger business has upon the public health, and the imperative necessity, from sanitary considerations, that such work should be intrusted only to those who are competent and properly equipped to perform it, we are of opinion that the grant of power to make such regulations and to ordain such ordinances as may be necessary or expedient for the preservation of health, and to prevent the introduction of contagious diseases, conferred authority on the common council, as one means of regulating the scavenger business, to require a license from those carrying it on, and to prohibit any one from doing so without a license. Boehm v. Mayor, 61 Md. 259; Chicago v. City, 88 Ill. 221; Kinsley v. City, 124 Ill. 359, 16 N. E. 260.
It must be remembered, however, that the power to exact a license from scavengers cannot be exercised arbitrarily, so as to give any person or persons an exclusive right or a monopoly of the business. The council should exercise their judgment and discretion honestly
No objection is made to section 3, providing for the payment of a license fee of $25, and therefore we have not considered it.
Much of what has been said in regard to the power of the council to require a license is applicable to the provisions of section á, requiring the licensee to obtain a “permit” from the commissioner of health before removing the contents of any privy vault, etc. This does not, and was not intended to, give that officer a veto power over the action of the common council in granting a license. Nor does it give him any arbitrary discretion by which to withhold a permit from a suitable person properly equipped to do the work. City v. Lawton, 61 Minn. 537, 63 N. W. 1112. This provision is not materially different, either in substance or purpose, from those found in many ordinances on other subjects; for example, requiring a permit from some officer, such as building inspector or city engineer, before doing certain work, such as erecting or repairing a building, doing a job of plumbing, making connection with a sewer, and the like. We are not aware that the validity of such provisions has ever been successfully disputed.
The object in requiring a permit from the commissioner of health is to insure that the scavenger is properly equipped to do the particular job in hand; that it will be done at a proper time; and, what is perhaps more important than anything else, that the commissioner of health may know when and where the work is to be done, so that he may supervise it, and see that it is performed in accordance with the rules and regulations on the subject. It is suggested that the commissioner of health might arbitrarily refuse a permit, in which case the applicant’s only remedy would be by
Our conclusion is that none of the objections urged against the validity of the ordinance are well taken, and that the decision of the district court must be affirmed, and the relator remanded to the custody of the respondent. So ordered.