*1 1894. O.] r. Austin. use, use, lawful or even for unlawful the defendant would if is carried not be under this section guilty weapon since this the act of statute not to carrying openly, applies it, but to the man- weapon purpose carrying ner of it. No Error. carrying
STATE v. MACK AUSTIN.
Ordinance, validity Municipal Authority of— —:Police Power— Restraint Minors. Legislature may for 1. The declare unlawful minor to enter bar- . room may municipal
2. created transfer bodies duty exercising portion police responsibility of its own necessary'. in such manner as the commissioners deem "Wherethe of a town authorizes the commissioners “tomake charter government regulations for better rules and they may provided necessary, said town as deem the same be land,” prohibiting inconsistent with the laws ordinance minor, except acting agent parent when as the of his an unmarried entering any spirituous, guardian, bar-room room where from sale, liquors kept valid, being malt reasonable vinous or the laws of the State. and consistent with dissents, arguendo.
Avery, J., 1898, of Term, tried at August UNION CRIMINAL ACTION, Court, from a judgment Mayor appeal Superior of the town of Monroe. with the violation of an was
The defendant the trial of the town. Superior Upon verdict, as fol- substantially Court the found jury special who is under No. is that no person “Ordinance lows: bar-room, etc., shall enter any pro- twenty-one years age IN THE SUPREME COURT. v. Austin. the same shall not vided minor who is married apply *2 enters as the who servant agent parent guar- ; dian the defendant was old and not married twenty years and was or servant when he entered the acting agent bar-room.”
The defendant the Court to that requested charge refused, ordinance was invalid. This was and the defend- ant was held guilty, appealed. General, .for the State. Attorney Redwine,
Messrs. Batchelor & Devereux and R. B. for de- fendant. J.: The town of Monroe has and au-
Bun.well, “to make rules and thority for regulations the better of the town” as the commissioners government thereof deem may the same are “'not necessary, provided inconsistent with the laws of the land.” The Code,§3799.
This is an to the express grant officers of this to exercise within the municipal corporation made territory to their control State, subject police power action, restriction their that only expressed being mg.de rules them shall not be incon- regulations by sistent with “the laws of the land.”
Authorities need not be cited to that prove Legisla- ture of the State transfer to' local may municipal legisla- it tive bodies created duty responsibility its own It seems exercising portion police power. be conceded that 'Legislature declare bar-room, unlawful for minor to enter and thus pro- tect them from the evil influences that if affect them might to which their in such exposed temptations presence resorts them. might expose
This concession is admission that the ordinance O.] Austin. r. is not in its to either the question repugnant provisions Constitutions, Federal or State for those fundamental enact- ments their influence on the impose restraining not less than on its creatures —the councils of legislative the towns and cities of the Commonwealth. then,
There being, ground maintaining ordinance under consideration invalid because of its and the unconstitutionality, grant by Legislature, to exercise its municipality police power in such manner as the commissioners deem necessary clear and remains being whether explicit, inquire the enactment is consistent with laws of the is reasonable. In the to this munici grant police power *3 the restriction is that its shall pality ordinance imposed not be inconsistent with “the law’s of the land.” The land,” “the law’sof the expression, can refer to only law’sof this State —the statutes by law’— enforcement of which order are maintained peace good State, this all its w’hich the conduct of throughout by citizens, not, w’hether dwell the cities and towmsor they is controlled. It is not to these local permitted legislative bodies in this State to that exercise portion police entrusted to them about which the upon subjects has seen fit to enact laws v. Ham (Washington mond, C., 76 N. 33; Brittain, C., State v. nor 574), ordinances that tend to obstruct the adopt general policy of the State the exercise its as evinced police power its statutes. In the by treatise of Horr & Bemis on Munici Police Ordinances it is said: pal 88) “According (section existence, the American theory municipal legislation 'to be permitted exercised is a by municipal corporations mere State, of the of the and the ordi delegation powrer nances created virtue of this are by delegated as much a of the scheme of part general legislation IN THE COURT. SUPREME Austix. is, therefore, that they
the laws of the State. It necessary * * * laws of the State. should be consistent with the or indi directly have no repeal, Municipalities State, must and their the laws of the legislation rectly, If of the State. accord with the of the policy legislation the char terms of were the measure within ordinances ter there would often be plainly law or some State with irreconcilable granted power neither State, of the result the settled contrary policy charters, bjr express language, lawful nor intended. Some as are to such restrict the ordinances passed are silent with the laws of the State. Others consistent exists whether expressed but the restriction subject, in its not, application.” and becomes important very between provisions AArecan discern inconsistency under consideration any particular ordinance of its law of or the legislation. the State general policy on the effort Indeed, find in it rather a commendable we what of this local body supplement part legislative has done its legislation that one declares The State the Commonwealth. young sell shall neither norgiveto who deals intoxicating liquors Code, §1077. an unmarried minor liquors. shall not enter that such minor This declares the town. control of that are the bar-rooms subject *4 of the State upon It and does not hinder policy helps are towards prevention this All its tendencies subject. and the infraction of the law of preserva of the must Its enforcement order. tion of and rigid peace good saloons, for only clanger be desired by proprietors such from persons can come to them allowing and trouble Kittelle, 130 v. their of business. State places frequent none of C., saloon-keeper’s 560. It interferes with N. his is, indeed, contrived protection. and rights, part 1894. 0.] r. Austin. It minors from prevents exposure temptation places where forbids should The law which they go.
dealer or sell to a minor intoxicating give liquors validity valid. Its could liquors scarcely assailed with Black show reason. Intoxicating section 42. This rests the same Liquors, upon — State, foundation as law the of the either direct its through legislation municipal “home rule” to shield from agencies, youth temptation. It been held the author that a quoted above) (says law a minor to enter and remain against permitting upon in a retail valid, dealer’s of business is liquor place and the State has to enact and enforce such a law even its of the wishes when disregard parent’s object Ford, are to the child. Goldsticher tendency protect Tex., What has been said above seems a sufficient refutation of the assertion that unreasonable, the ordinance is oppress- ive and It us a wise and whole- seems to discriminating. some restraint made community, youth their interest as well as that of the law-abiding keepers the bar-rooms. It is not oppressive. of our cities and with towns—officers police offences well as of duty arresting preventing have
offenders—should the power prevent from can such au- saloons. derive youths entering They It from such ordinances. is not thority only unlawfully minors, It to all unmarried discriminating. applies is more obnoxious to this than is the section objection of The Code mentioned above and other laws which made to of the land. While control youth it is true that all to municipal corporations grants construed, should be should be and that all doubts strictly against it is also resolved corporation, *5 SCO IN THE SUPREME COURT. v. Aurtix.
true that where, case, as in this is plain grant with, or Courts will not interfere control unequivocal, the acts of the nullify officers except municipality for most reasons. The course would cogent contrary bring about an unseemly depart- intermeddling judicial ment of the with the established government agencies towns legislative councils of department legislative —the and cities—and such could but have the intermeddling effect of the action of and retard- those bodies hampering of such communities. ing development If fraud, is oppression against dishonest}' them Courts will be swift to and to investigate charge matters, correct the evil if found to exist. But other mere involving questions expediency judgment, must be decided in another Wo way. adopt, applicable here, Noe, used Hellen language by Judge DaNIEl Ired., 493: “If a of the citizens of the town majority deem the ordinance impolitic injurious people hands to have the their own corporation, they evil; but we cannot that this ordinance is remedy say is, itself, unreasonable.” against law Error.
No J., I cannot concur Avery, dissenting: opinion Court, and as dissent idea that rests my it, not I deem municipality usurped powers delegated views. proper give expression my cor- whether question presented municipal under a to make poration grant power (1) rules and for the better of said regulations government town as the same be deem they may necessary, provided land; inconsistent with the laws of the to exercise (2) all of the under conferred on towns generally G2, Code,is second volume of The chapter empowered C.]
State Avsttx. r. ordinance to minor, unmarried prohibit when except as the of liis acting agent parent from guardian, enter- bar-room or room where ing any spirituous, vinous or malt for sale. liquors kept
It was not contended on the that argument Legisla ture, in the exercise of its was police not power, authorized infants from prohibit themselves to exposing such evil influences, nor was necessary discuss the question whether the was Legislature empowered by Constitution delegate municipality to enact the ordinance set forth verdict, special unless we dis a cover careful examination that the upon has power been either fair expressly, granted by implication. Dillon 89; Mun. sec. v. Webber, Corp., C., 107 N. 962; 15 Enc., Am. and 1039. The first Eng. contested point, there fore, is whether under the to make permission contained in charter, or under the act, to enact this .authority been incidentally conferred. The Court of Supreme New stated, in -Jersey Griswold, the case of Green, v. Taylor 222, the doctrine which the decision of the upon question involved depends: “"Whenever seeks to alter by-law well-settled and fun law, damental of the common principle or to establish a rule with the interfering individuals or rights the pub lic, the to do so must come from power plain direct enactment. legislative enact Legisláturo laws restraint the natural liberties imposing upon of the people for the benefit of morals, public .the provided no constitu tional of the individual is violated, but l’ight where a which is a municipal corporation, public created agency by branch of the law-making government, undertakes to laws in of common it is pass derogation right incumbent to show not upon municipality clearly n is warranted the Constitution in by delegating IN THE SUPREME COURT. k. Austin. claimed. conferred Dillon says has actually Griswold, v. Dillon, Taylor sec. citing supra, sup-
(1
“An ordinance cannot
legally
port
proposition):
unless the
made which contravenes
a valid
so be
conferred
to do
plainly
by
compe-
and, in cases
to such
relating
tent
grant,
right,
legislative
towns
conferred
of limited
to regulate
to include the
has been held
necessarily
powers
of the cases cited
Dillon to sustain
One
to prohibit.”
The commissioners “make such rules and of its charter regulations of said town as deem they may for the better government the same be not inconsistent with the necessary, provided law, sense, in its land.” The word laws of the law as and common well the Constitu includes statute “laws of the land” has been so tion, and the term expressly Enc., 12 Am. and authority. Eng. by high interpreted Am. 1; and Wright, note Insurance Company Eng. cases, 662, note. The which was language Corporation Qharta all and into Magna transplanted incorporated declared been State Constitutions equivalent our is law of the land. of law” to “due laws) process (not land” was construed the case “laws of the The phrase law, common and statute include both by cited to also. 32. embrace Constitutions Cooley, p. Courts to other com which the right Is the ordinance derogation has conferred time immemorial law from mon ? Au is that which old individual right minor twenty years have or to receive from others or to is entitled to a person TERM, 0.] Austix. r. Enc., do under the 21 Am. and tlie law. protection Eng. ; Neb., 406 Railroad v. 40. The common law Roty, clearly all includes rules of action established for principles of the security rights personal liberty private which are not embodied some property express legisla tion. “Personal consists in the of locomo liberty tion, of situation, or one’s changing moving person direct, whatever one’s inclination without place or restraint unless due course law.” imprisonment Lie., 619; Anderson’s Law 1 Bl. Com., 134. Mr. Black stone further of this of free locomotion that says privilege “a natural, and the law of right strictly England.has cause, never it without sufficient and that in this abridged it cannot ever be at the mere discretion Kingdom abridged without magistrate explicit permission laws.” This is a statement of the well-settled doctrine that even a statute must be construed passed by when extent strictly or abro operates repeal law, which gate any principle protects personal security, personal liberty private property.
Has an infant a of locomotion which the common law and other bound A protects persons respect? *8 sui enter house where generis wares person may any goods, sold, or the of to the groceries subject only right pro to him for misconduct. An infant labors under prietor eject disabilities, as to the to make contracts or a execute will, to hold office and to do acts; certain other but the law his common more restraint locomo imposes upon adult, tion than the movements of such as upon except If, be to when exerted. may parental authority, incident therefore, the had statute Legislature attempted by express minors, to all in the ordi those prohibit except specified nance, from houses of the classes therein entering particular mentioned, the law would been at least have to subject IN THE SUPREME COURT. r. Austin. the Courts should called construction whenever be
strict it. enforce When dut)r imposed in for claimed scrutiny searching Courts'of close in to see that it exists is doubly duty by implication, in been abused exer and not particular some shape drawn it, question purports cise of where legislation if and conferred at under operates, delegated power ' all, of a personal right recognized by derogation seen, as we have law. Such does pass, to make all needful under general grant sec. but not rules regulations (Dillon, 325); confer, but it has omitted posi only hasjdie ordinance not consist the making tively prohibited, land statute or common laws of the ent with (whether elementary principle declaratory law), choose, where he an infant to may subject only go him, or to control parent superior restraints for his terms impose plain the Legislature and not or the welfare public, own protection the Constitution. repugnant conferred upon municipal corporations other powers The Code, law are embodied §§3801 the general under as follows: which are théir markets establish regulate “They may shall be within corporation at what place prescribe manner, in what whether by weight marketable things, sold if flour, meal or the flour sold measure, bemay grain, straw, in'barrels, fodder, or oats hay be not packed same, weighing appoint purpose scales erect direct whom shall be fees and they fix his a weigher, for the be lawful commissioners it shall not And paid. tax whatever town to impose any authorities other iruck, fish farm products, garden carts selling on wagons streets thereof. in the public and oysters *9 865 C.] t. Austix. laws “They may or pass nuisances abating preventing of kind or for the health the citizen.” preserving of
In these two sections we find enumerated all of the n express to ordinances, powers arise pass except under the to taxes and authority to levy repair, improve streets and open sidewalks, public contained sections immediately those preceding following quoted above. Bo that if ordinance, the' for a of violation which indicted, defendant is was not virtue of the passed nuisances, health or preserve or abate prevent there warrant for its express enactment the general statute, as there is no sufficient grant pass it in the charter. The conferred the munici- is not to create pality nuisance by legislation pre- law, known to the viously people town from annoyance crea- by refusing prohibiting tion of what comes within the definition of already legal nuisance. Lim., 2; Const. 741, note Cooley pp. v. Milwaukee, Wall., Yeates Railroad, 497; Salem Mass., 431. Cooley Mott,
In State v. 61 Md., cited by Judge laid, .sustain down, we have substantially proposition the facts were that the an ordi- Baltimore enacted city nance that it should “not be lawful for providing any per- son, work, continue persons body corporate operate use, for the or stone shells purpose burning oyster kiln lime, situated or erected within' the limits of Baltimore, under a The defendant city etc. penalty,” was the indictment with a limekiln operating within the limits of the of Baltimore for the city purpose lime, shells and stone burning oyster etc. 'to the ordinance was claimed under pass a provision charter “to ordinances empowering city pass pre- serve the health and to and remove city prevent
’ 866 IN THE COURT. SUPREME Austin. v. 3802, with section nuisances,” identical being practically the in the order of conferring difference being instead in use of the word “abating” powers The held in the same sense. Court removing, precisely at a to burn a limekiln nuisance se that was per and the limits of the corporation within the city, point to prevent not authorized grant power was nuisance. See to an act not a necessarily remove prohibit Cooley Ark., 526. also, Rock, 41 v. Little Judge Ward Ill., Park, cited case of Fertilizer Co. Hyde also that where the in which Court held effect Legisla town the after the ture lapse gave explicitly and to “to what were nuisances determine two years same,” authorized to was not abate corporation at nuisance, a act which was not nuisance declare a till time mentioned. law, after the expiration main case in a elaborate argument The Court this very to manufacture of private corporation tained fertilizer, to the town any general power despite in the conduct nuisance, unless it should create or prevent has nuisance at common law. It been its business a also, reason, that a similar municipal corporation held to nuisance has no more acknowledged legalize amount to a nuisance to what does not than prohibit Ind., 139; Am. Johnson, 56 Pettie v. Eng. as such. 252. It B. Mun. seems need ; 1185 How. & Enc., Corp., authorities, we do almost indefi as “ might less multiply in the must nuisance” statute to show that word nitely, technical meaning. to its be interpreted according has the authority questioned longer Legislature (no or malt vinous the sale spirituous, this State) prohibit nuisance, declare bar-rooms possibly liquors, sale of without liquors the towns cannot prohibit so. Had the from the do express'authority C.] v. Ai'stis. town ordinance attempted by sale of prohibit spiritu- ous to minors liquors would have only void, been whether the statute on the were force subject because repealed, it, is conferred upon either Iiow, then, does the expressly by implication. corporation acquire whom prohibit boy, upon *11 the law has restraint, a imposed from entering house where a business our statutes is legalized by being conducted? It is doubtless desirable that the of the youth State should be to which guarded against temptations of such are frequenters places which subjected. Legislation will what the Town Commissioners of Monroe legalize have enact, constitutional, to if is deemed attempted can be had for the But probably the violation of asking. con- stitutions or statutes under the of specious plea reforming the world in a obedience to law is neither higher excusable moi’al nor defensible upon upon legal grounds. think,
I for the stated, reasons which I have that neither under the of the charter known as provision commonly welfare clause nor under the to health nuisances can the prevent authorities a of governing a enact valid ordinance to municipality purporting prohibit boy from where twenty business years age entering is conducted under the sanction of the presumably law. the sale intoxicants under ban Legislature may put of the law so that a where completely place illicitly nuisance, sold shall deemed a while such business houses are licensed law town commissioners cannot them, brand without unfit for who boys authority, places stores other and saloons. frequent
It case, vras contended on the of the and not argument reason, without that had the instead enacted a law municipality prohibiting minors from the business houses mentioned in frequenting THE SUPREME COURT. IN Bridgehs. have been the statute would question,
the ordinance and void. passing' upon Without unconstitutional for the sake conceding argument or even question a minor from to that the Legislature prevent intoxi in- where or even entering place being employed essential, order sold, it would be the less none cants a similar law municipality, passed by validity give of the authority the corporation show delegation fair or by claimed either expressly implication. Mun. sec. cited, Leg., therefore
The authorities (Black from cases the Courts of other 42, and numerous States), statutes pass legislative authority support the case have no upon same necessary bearing purport, which absence any attempt delegate town to exercise. attempted I think that below erred Judge instructing to find the defendant verdict special guilty, jury *12 and a new trial be awarded. ought v. BEN. STATE BRIDGERS. Evidence. Larceny Sufficiency — conjecture suspicion gnilt raises 1. Evidence which offence, but with an does not warrant reasonable one guilt, ought jury. of his to be submitted to the conclusion that, larceny, Where, prosecuting on on a trial for witness testified credit, refusing defendant mule to sell the shoes defend- liis some, containing rattling keg on a after the shoes ant down sat right hand hand went out of the store with his for a while with his witness, suspected taking pocket; he, that defendant his shoes, not; did not know whether were taken some bought shoes which were soon testified he defendant miule