Ullman v. District of Columbia

21 App. D.C. 241 | D.C. Cir. | 1903

Mr. Justice Morris

delivered the opinion of the Court:

1. It is conceded by the defendant that the prosecution in this case was instituted under the regulation of July 1, 1898, which has been cited. Yet reference is made to some other similar regulations and to various acts of Congress authorizing the Commissioners of the District to make police regulations, as if to raise an uncertainty as to the regulation under which he was actually prosecuted, inasmuch as the informations do not identify the regulation. It is not apparent that this point requires any consideration by us.

2. In the second place, the point is made that, inasmuch as the act of Congress of January 26, 1887 (24 fetat. 368), which authorizes the Commissioners of the District to make police regulations for the government of the District, and among other things specifically “ for causing full inspection to be made at any reasonable times of the places where the business of pawn-broking, junk-dealing, or second-hand clothing business may be carried on,” and which in its second section requires “ that the regulations herein provided for shall, when adopted, be printed in one or more of the daily newspapers published in the District of Columbia, and no penalty prescribed for the violation of such regulations shall be enforced until thirty days after such publications,” it is incumbent on the prosecution to show that due publication had been made of the regulation on which this prosecution is based, and no such showing has been made. But one conclusive answer to this is that the record does not show that the point was made in the court below, and therefore should not be made here for the first time. Another answer is, that, after the lapse of so much time from the apparent date of this regulation, the court will presume that due publication was made of it, until the contrary is shown. Publication, of course, is an essential prerequisite to the enforcement of any penalty under ordinances or regulations formulated under the act of January 26, 1887; but after the lapse of so much time it would be unreasonable to require that in every case of prosecution such publication must be shown affirmatively. It will be presumed to have been made; but the presumption is one which may be rebutted by proper proof. See State v. Atlantic City, 34 N. J. L. 99; Atchison v. King, 9 Kans. 376; 1 Dillon on Municipal Corporations (4th ed.), Sec. 334, and notes.

3. But the main argument on behalf of the. appellant is that the regulation of July 1, 1898, is in excess of the power granted by tbe acts of Congress tbat have been cited; and tbat. tbe regulation is unreasonable.

Keeping in view tbe purposes for wbicb these and other similar regulations bave been enacted, to tbe principal of wbicb, although not the only one, we bad occasion to call attention in tbe case of Fulton v. District of Columbia, 2 App. D. C. 431, we cannot find tbat tbe regulation in question is unreasonable on its face. It is not controverted tbat reasonable regulation of tbe business in wbicb tbe appellant is engaged is within tbe purview of legislative and municipal authority. To keep a record of transactions is now usual, we may say, almost universal, in all classes of business; and tbe appellant admits that be does actually keep a record, and be maltes no complaint tbat it is a hardship for him so to do. Nor does be complain of tbe requirement tbat bis record should be open to tbe inspection of tbe police. His grievance is tbat be is required to keep a record, of such articles as are mentioned in tbe information. But tbe same reason exists for keeping a record of these as of any other articles; and it is no more difficult to make an entry of twenty-eight cents than one of twenty-eight dollars. We know from experience tbat it is tbe small affairs of business tbat need to be most sedulously guarded; and tbe reason for police inspection is tbe same in this transaction as in others of greater magnitude. Tbe regulation makes a reasonable exception in regard to rags, bones, old iron and paper; but why sheets of copper, and metal bells, and-water spigots, and lead pipes, and gas jets should be regarded as among trifles of wbicb a junk-dealer should not be required to make a record, even though be paid only twenty-eight cents for them, we are somewhat at a loss to understand.

Of course, tbe reasonableness of tbe regulation as to such articles is a matter tbat could be tested by testimony; and it was open to tbe plaintiff in error to offer testimony in regard to it. He is entirely right in bis contention tbat be was entitled so to do. But be offered none tbat was competent in law or admissible under tbe rules of evidence. Tbe two questions wbicb were propounded to himself when lie was a witness on his own behalf, and -which were excluded, were clearly inadmissible. Whether he deemed it necessary to keep a record of these articles or not, which was the tenor of one of the questions, is a plainly irrelevant matter. And whether the police officer had ever complained to him of his failure to keep a record, which is the purport of the second question, was likewise a matter the relevancy of which it would be impossible to establish.

As to the other witness who was called on his behalf, the questions propounded to him and excluded by the court were equally objectionable. He was asked whether the ordinance liad been enforced in reference to such articles as here mentioned while he ivas on the police force. But the failure to enforce an ordinance at one time is no valid reason in law for not enforcing it at another time. Such failure might well be due to causes other than the hardship or unreasonableness of the ordinance. And the inquiry whether it was feasible, practical or possible to keep the required record, was merely a call for an expression of opinion without any statement of fact or grounds upon which to base it.

It is to be noticed that the only reason which the plaintiff in error himself gave upon the witness stand for the alleged impossibility to comply with the regulation was that “ it was not possible to do so, as he handled sometimes many hundreds of pounds of iron and such odds and ends of articles,” as he purchased in this case. But there was here no iron at all: and, as we have seen, old iron is specifically excluded from the category of things of which a record is required to be kept. And to call the articles by the designation of “ odds and ends ” does not make them so. He does not say within what time he-handled all this iron and all these so-called “ odds and ends.” If it was difficult or impossible to keep the required record, it would seem that it ought not to have been difficult or impossible to sIioav the fact. But no fact Avhatever -was shovm or offered to be shown. We have nothing but the mere assertion of the plaintiff in error, corroborated perhaps by a similar assertion on tbe part of bis witness, tbat it was impossible to keep tbe required record.

We find no error in tbe record. Tbe judgments appealed from will therefore be affirmed, with costs; and tbe cause will be remanded to tbe police court for execution of said judgments according to law. And it is so ordered. Affirmed.