Abbildungen der Seite
PDF
EPUB

the argument of this case, that they are made without lawful reasons. We can comprehend how a man's conscience may condemn as wrong a law of the land. But that sort of a conscience, so tender as to withhold approval of a law, yet which voluntarily takes an oath to administer it according to its true intent and meaning, and then deliberately violates it, is beyond our comprehension. We will not assume, without incontrovertible evidence, of record, that there is such an one. The decree is affirmed, and the appeal is dismissed, at cost of appellant.12

SECTION 10.-VALIDITY OF UNREGULATED DISCRETION

Fru. 168, 644, 655 Well on § 598.gr

WILSON v. EUREKA CITY.

(Supreme Court of United States, 1899. 173 U. S. 32, 19 Sup. Ct. 317, 43 L. Ed. 603.)

In error to the Supreme Court of the state of Utah.

Section 12 of Ordinance No. 10 of Eureka City, Utah, provided as follows: "No person shall move any building or frame of any building, into or upon any of the public streets, lots or squares of the city, or cause the same to be upon, or otherwise to obstruct the free passage of the streets, without the written permission of the mayor, or president of the city council, or in their absence a councilor. A violation of this section shall on conviction, subject the offender to a fine of not to exceed twenty-five dollars."

The plaintiff in error was tried for a violation of the ordinance, in the justice's court of the city. He was convicted and sentenced to pay a fine of $25. He appealed to the district court of the First judicial district of the territory of Utah.

On the admission of Utah into the Union, the case was transferred to the Fifth district court of Juab county, and there tried on the 24th of October, 1896, by the court without a jury, by consent of the parties.

Section 12, supra, was offered and admitted in evidence. Plaintiff in error objected to it, on the ground that it was repugnant to section 1 of article 14 of the Constitution of the United States, in that it delegated an authority to the mayor of the city, or, in his absence, to a councilor.

There was also introduced in evidence an ordinance establishing fire limits within the city, providing that no wooden buildings should be erected within such limits except by the permission of the committee

12 See, also, In re Licenses, 4 Luz. Leg. Reg. (Pa.) 527 (1888). And see cases under mandamus, § 53.

on building, and providing further for the alteration and repair of wooden buildings already erected. *

* *

The evidence showed that the plaintiff in error was the owner of a wooden building of the dimensions of 20 by 16 feet, which was used as a dwelling house. It was constructed prior to the enactment of the ordinances above mentioned. The evidence further showed that plaintiff in error applied to the mayor for permission to move the building 'along and across Main street in the city to another place within the fire limits. The mayor refused the permission, stating that, if the desire was to move it outside of the fire limits, permission would be granted. Notwithstanding the refusal, the plaintiff in error moved the building, using blocks and tackle and rollers, and, in doing so, occupied the time between 11 a. m. and 3 p. m. At the place where the building stood originally, the street was 50 feet from the houses on one side to those on the other, part of the space being occupied by sidewalks, and the balance by the traveled highway. The distance of removal was 206 feet along and across Main street. Eureka City was and is a mining town, and had and has a population of about 2,000. It was admitted that the building was moved with reasonable diligence. The plaintiff in error was again convicted. From the judgment of conviction he appealed to the Supreme Court of the state, which court affirmed the judgment (15 Utah, 53, 48 Pac. 41; 15 Utah, 67, 48 Pac. 150, 62 Am. St. Rep. 904), and to the judgment of affirmance this writ of error is directed.

Eureka City has no special charter, but was incorporated under the general incorporation act of March 8, 1888, and among the powers conferred by it on city councils are the following:

"(10) To regulate the use of streets, alleys, avenues, sidewalks, cross walks, parks and public grounds.

"(11) To prevent and remove obstructions and encroachments upon the same."

The error assigned is that the ordinance is repugnant to the fourteenth amendment of the Constitution of the United States, because "thereby the citizen is deprived of his property without due process of law," and "the citizen is thereby denied the equal protection of the law."

Mr. Justice MCKENNA, after stating the facts in the foregoing language, delivered the opinion of the court.

Whether the provisions of the charter enabled the council to delegate any power to the mayor is not within our competency to decide. That is necessarily a state question, and we are confined to a consideration of whether the power conferred does or does not violate the Constitution of the United States.

It is contended that it does, because the ordinance commits the rights. of plaintiff in error to the unrestrained discretion of a single individual, and thereby, it is claimed, removes them from the domain of law. To support the contention, the following cases are cited: In re Frazee, 63

F0.644

FN. 149,643, 650

Mich. 396, 30 N. W. 72, 6 Am. St. Rep. 310; 13 State v. Dering, 84 Wis. 585, 54 N. W. 1104, 19 L. R. A. 858, 36 Am. St. Rep. 948; Anderson v. City of Wellington, 40 Kan. 173, 19 Pac. 719, 2 L. R. A. 110, 10 Am. St. Rep. 175; Mayor, etc., v. Radecke, 49 Md. 217, 33 Am. Rep. 239; City of Chicago v. Trotter, 136 Ill. 430, 26 N. E. 359.14

With the exception of Mayor, etc., v. Radecke, these cases passed on the validity of city ordinances prohibiting persons parading streets with banners, musical instruments, etc., without first obtaining permission of the mayor or common council or police department. Funeral and military processions were excepted, although in some respects they were subjected to regulation. This discrimination was made the basis of the decision in State v. Dering; but the other cases seem to have proceeded upon the principle that the right of persons to assemble and parade was a well-established and inherent right, which could be regulated, but not prohibited or made dependent upon any officer or officers, and that its regulation must be by well-defined conditions.

This view has not been entertained by other courts, or has not been extended to other instances of administration. The cases were reviewed by Mr. Justice McFarland, of the Supreme Court of California, in Re Flaherty, 105 Cal. 558, 38 Pac. 981, 27 L. R. A. 529, in which an ordinance which prohibited the beating of drums on the streets of one of the towns of that state, "without special permit in writing so to do first had and obtained from the president of the board of trustees," was passed on and sustained. Summarizing the cases, the learned.

justice said:

"Statutes and ordinances have been sustained prohibiting awnings without the consent of the mayor and aldermen (Pedrick v. Bailey, 12 Gray [Mass.] 161); forbidding orations, harangues, etc., in a park without the prior consent of the park commissioners (Com. v. Abrahams, 156 Mass. 57, 30 N. E. 79), or upon the common or other grounds, except by the permission of the city government and committee (Com. v. Davis, 140 Mass. 485, 4 N. E. 577); 'beating any drum or tambourine, or making any noise with any instrument for any purpose whatever, without written permission of the president of the village,' on any street or sidewalk (Vance v. Hadfield, 51 Hun, 620, 643, 4 N. Y. Supp. 112); giving the right to manufacturers and others to ring bells and blow whistles in such manner and at such hours as the board of aldermen or selectmen may in writing designate (Sawyer v. Davis, 136 Mass. 239, 49 Am. Rep. 27); prohibiting the erecting or repairing of a wooden building without the permission

13 See, however, Love v. Judge of Recorder's Court, 128 Mich. 545, 87 N. W. 785, 55 L. R. A. 618 (1901).hub of speeches in publ. place wo parmet & may or 14 See, also, Cicero Lumber Co. v. Cicero, 176 Ill. 9, 51 N. E. 758, 42 L. R. A. 696, 68 Am. St. Rep. 155 (1898); Noel v. People,' 187 Ill. 587, 58 N. E 616, 52 L. R. A. 287, 79 Am. St. Rep. 238 (1900).

of the board of aldermen (Hine v. City of New Haven, 40 Conn. 478); authorizing harbor masters to station vessels and to assign. to each its place (Vanderbilt v. Adams, 7 Cow. [N. Y.] 349); forbidding the occupancy of a place on the street for a stand without the permission of the clerk of Faneuil Hall Market (In re Nightingale 11 Pick. [Mass.] 168); forbidding the keeping of swine without a permit in writing from the board of health (Quincy v. Kennard, 1511 Mass. 563, 24 N. E. 860); forbidding the erection of any kind of a building without a permit from the commissioners of the town through their clerk (Commissioners v. Covey, 74 Md. 262 [22 Atl. 266]); forbidding any person from remaining within the limits of the market more than twenty minutes unless permitted so to do by the superintendent or his deputy (Com. v. Brooks, 109 Mass. 355)."

In all of these cases the discretion upon which the right depended was not that of a single individual. It was not in all of the cases cited by plaintiff in error, nor was their principle based on that. It was based on the necessity of the regulation of rights by uniform and general laws-a necessity which is no better observed by a discretion in a board of aldermen or council of a city than in a mayor; and the cases, therefore, are authority against the contention of plaintiff in error. Besides, it is opposed by Davis v. Com., 167 U. S. 43, 17 Sup. Ct. 731, 42 L. Ed. 71.

Davis was convicted of violating an ordinance of the city of Boston by making a public address on the "Common," without obtaining a permit from the mayor. The conviction was sustained by the Supreme Judicial Court of the commonwealth (162 Mass. 510, 39 N. E. 113, 26 L. R. A. 712, 44 Am. St. Rep. 389), and then brought here for review.

The ordinance was objected to, as that in the case at bar is objected to, because it was "in conflict with the Constitution of the United States and the first section of the fourteenth amendment thereof." The ordinance was sustained.

It follows from these views that the judgment of the Supreme Court of Utah should be, and it is, affirmed.15

15 See, also, Gundling v. Chicago, 176 Ill. 340, 52 N. E. 44, 48 L. R. A. 230 F~.655 (1898) affirmed 177 U. S. 183, 20 Sup. Ct. 633, 44 L. Ed. 725 (1900); Fischer

v. St. Louis, 194 U. S. 361, 24 Sup. Ct. 673, 48 L. Ed. 1018 (1904); Freund, Police Power, §§ 639-655.

As to judicial control of administrative discretion in continental jurisprudence, see Grünhut's Zeitschrift für Privat- u. Öffentliches Recht, vol. 18. pp. 148-163; Id., vol. 19, pp. 327-411; Laun, Freies Ermessen, 1910.

"Anappt to office by the person havg authy therefor, as dusting, avelects can onf be made verbally! +wo Writy when permitted by the Stat. Affect of the public not merely private its being done under the authy of the person porn mot under undirlauthy at shed be authenticated in a way that the public may knows when & en what manner

the duty has been performed.

86

ADMINISTRATIVE POWER AND ACTION.

[ See Dillon § 550-562" "VI on this chap

CHAPTER III
Goodn. 340-345

FORM AND PROOF OF OFFICIAL ACTS'

(Part 1

It is a will settled rule that when me councils or boards of any third arecalled upon to perform leg: acts or acts involoma discret judh tu adm2 public affairs they can only act at duthed meetos duly held. Willon & 501. I meetos duly held sulm

SECTION 11.-ACTION OF OFFICIAL BODIES-THE BODY

MUST BE CONVENED

ca of appt of on. 1.90- offer linequivocal act in presence of tribunal mp taky disband is enough 2 Contra, in absence, permiss" in stat to appl Corally & m be a written comskidor v.quots aufor

PENNSYLVANIA R. CO. v. MONTGOMERY COUNTY PASS.

RY. CO.

(Supreme Court of Pennsylvania, 1895. 167 Pa. 62, 31 Atl. 468, 27 L. R. A.
766, 46 Am. St. Rep. 659.)

WILLIAMS, J.2 *
*
* But in this connection another interesting
question suggests itself. How is the assent of "the local authorities" to
be obtained in any given case, and what is the proper evidence that
it has been given? The township books, in the custody of the town
clerk, are the records of the township, and should afford evidence of
the action taken by the supervisors in all matters of public importance.
A paper in the pocket of a contractor or of some officer of a corpora-
tion is not the proper evidence of action by the township or the school
district. The action needed is not that of the individuals who compose
the board, but of the official body. Thus it was held that a contract
signed by the members of the school board separately did not bind the
district. The best evidence of their official action was their minutes
kept by the secretary. Wachob v. School Dist., 8 Phila. 568. For the
same reason a contract signed by the president and secretary was held
to be invalid. It had not been acted upon by the board when in ses-
sion. School Dist. v. Padden, 89 Pa. 395.

One supervisor may bind the township by an act that is ministerial in
its character. Dull v. Ridgway, 9 Pa. 272; Pottsville Borough v. Nor-
wegian Tp., 14 Pa. 543. Not so, however, when the act is one that
requires deliberation and the exercise of judgment. Cooper v. Lam-
peter Tp., 8 Watts, 125; Union Tp. v. Gibboney, 94 Pa. 534; Som-

Field, 10 Bush (Ky.) 144, 19 Am. Rep. 58 (1873); People v. Murray, 70 N.
Y. 521 (1877) Wigmore, on Evidence, § 2427? roof. 386

1As to whether official declaratory acts must be in writing, see Hoke v.

As to requirement of personal action of officer, see Chapman v. Inhabitants
of Limerick, 56 Me. 390 (1868); Wilcox v. M'Connel, 13 Pet. 498, 512, 10 L.
Ed. 264 (1839); Runkle v. U. S., 122 U. S. 543, 7 Sup. Ct. 1141, 30 L. Ed. 1167
(1887).
sedly bond

As to place of action, seet Lynde v. Winnebago Co., 16 Wall. 6, 21 L. Ed.
272 (1872). Candonmuredereal acts oukide of state of whe he is on but not judicia

2 Only a part of the opinion of Williams, J., is printed.

са

3. A tendency not to insist on integrate unless reg by low. Even when write made oral proof allowed. To proof of appt as an oral act cityca of apps of a sheriff deputy: Writy held the like of receipt of ala 8, Slaw requires ad to bedone in writglie, to ineffect" unless so done then the wnty the ong permiss ble ・of proof

[ocr errors]
« ZurückWeiter »