State v. Small

• Decision Date: 18 May 1927
• Citation: 137 A. 398
• Parties: STATE v. SMALL.
• Court: Maine Supreme Court

137 A. 398

STATE

v. SMALL.

Supreme Judicial Court of Maine.

May 18, 1927.

Report from Superior Court, Cumberland County.

Proceeding by the State against Ernest L. Small for failure to comply with city ordinance requiring owners, tenants, or occupants of property to remove snow from abutting sidewalks, reported to Supreme Judicial Court on an agreed statement. Judgment for the State.

Argued before WILSON, C. J., and PHILBROOK, DUNN, STURGIS, and BASSETT, JJ., and MORRILL, A. R. J.

H. C. Wilbur, of Portland, for the State.

Leo Gardner Shesong, of Portland, for respondent.

WILSON, C. J. A complaint under an ordinance of the city of Portland requiring owners, tenants, or occupants of property abutting on streets where there are footways or sidewalks to remove the snow from the sidewalk in front of their premises within a limited time after it ceases to fall. The ordinance reads as follows:

"Section 1. The owner, tenant, occupant, or any person having the care of any building or lot of land bordering on any street, lane, court, square, or public place within the city, where there is any footway or sidewalk, shall after the ceasing to fall of any snow, if in the daytime, within three hours, and, if in the night time before 10 o'clock of the forenoon succeeding, cause such snow to be removed from such footway or sidewalk."

For failure to comply, a penalty is provided of a fine of not less than two nor more than ten dollars, and an additional sum of not less than one nor more than ten dollars for every hour the snow shall be permitted to remain on such footway or sidewalk beyond the limit fixed for its removal.

The respondent pleaded not guilty, and the case was reported to this court on an agreed statement with a stipulation, in substance, that, if the ordinance is within the police powers vested in the city of Portland and is reasonable, valid, and a constitutional exercise thereof, judgment is to be entered for the state.

While there is a conflict among the authorities as to whether such municipal by-laws are valid, the weight of authority sustains them as a proper exercise of the police powers. In re Goddard, 16 Pick. (Mass.) 504, 28 Am. Dec. 259; Clinton v. Welch, 166 Mass. 133, 43 N. E. 1116; Carthage v. Frederick, 122 N. Y. 268, 25 N. E. 480, 10 L. R. A. 178, 19 Am. St. Rep. 490; Kenyon v. Fidler, 28 R. I. 164, 66 A. 63; City of Helena v. Kent, 32 Mont. 279, 80 P. 258, 4 Ann. Cas. 235; City of Lincoln v. Janesch, 63 Neb. 707, 89 N. W. 280, 56 L. R. A. 762, 93 Am. St. Rep. 478; Flynn v. Canton Co., 40 Md. 312, 17 Am. Rep. 603; Reinken v. Fuehring, 130 Ind. 382, 30 N. E. 414, 15 L. R. A. 624, 30 Am. St. Rep. 247; State v. McMahon, 76 Conn. 97, 55 A. 591; No. Pac. Ry. Co. v. Adams County, 78 Wash. 53, 138 P. 307, 51 L R. A. (N. S.) 276, note; Dillon, Mun. Corp. vol. 2, § 713.

It is true that such burdens have some attributes in common with taxes for the general repair of streets, and the cases holding such by-laws invalid appear to be decided on the ground that the burdens thus imposed are not equally apportioned. State v. Jackman, 69 N. H. 319, 41 A. 347, 42 L. R. A. 438; McGuire v. Dist. of Columbia, 24 App. D. C. 22; Gridley v. Bloomington, 88 Ill. 554, 30 Am. Rep. 566.

The more generally accepted rule, however, treats such municipal by-laws as police regulations. In re Goddard, supra, and cases above cited. Even if viewed as a form of taxation, it must be of the nature of local assessments, which, by eminent authorities, are also held to be an exercise of the police powers (Reinken v. Fuehring, supra, p. 384; Cooley on Taxation [2d Ed.] pp. 588, 647; Cooley's Const. Law [6th Ed.] p. 726; Tiedeman, Mun. Corp. § 259, at page 500); or at least are not governed by the same constitutional limitations as taxes for general purposes (Ill. Cent. R. R. Co. v. Decatur, 147 U. S. 190, 13 S. Ct. 293, 37 L. Ed. 132; 29 C. J. 742, note 43).

The only question, therefore, for the consideration of the court under the agreed statement is whether the by-law in question is a reasonable exercise of such powers. While a different rule prevails as to legislative acts (State v. Phillips, 107 Me. 249, 78 A. 283), the power of the court to declare a municipal by-law, enacted under general authority, invalid, if unreasonable, is unquestioned (Welch v. Swasey, 193 Mass. 365, 376, 79 N. E. 745; St. Louis v. Theater Co., 202 Mo. 690, 699, 100 S. W. 627; 6 R. C. L. 244). "It is, however, a power to be cautiously exercised." Com. v. Robertson, 5 Cush. (Mass.) 438. When doubt exists, it should be resolved in favor of the validity of the by-law. In re McCoy, 10 Cal. App. 116, 101 P. 419.

As a general rule, there is a presumption in favor of the reasonableness of a municipal by-law, and the burden is on the objecting party to overcome this presumption. If it does not appear on its face, the objecting party must produce evidence to show that it is, in fact, unreasonable in its operation, 19 R. C. L. 808; Laurel Hill Cem. v. San Francisco, 216 U. S. 358, 30 S. Ct. 301, 54 L. Ed. 515; Greensboro v. Ehrenreich, 80 Ala. 579, 2 So. 725, 60 Am. Rep. 130; State v. Trenton, 53 N. J. Law, 132, 20 A. 1076, 11 L. R. A. 410;. Iowa City v. Glassman, 155 Iowa, 671, 136 N. W. 899, 40. L. R. A. (N. S.) 852; Chicago, etc., R. R. Co. v. Carlinville, 200 Ill. 314, 65 N. E. 730, 60 L. R. A. 391, 93 Am. St. Rep. 190: City of Chicago v. Shaw Livery Co., 258 Ill. 409, 101 N. E. 588: Ex...