Anderson v. City of Wellington

• Decision Date: 10 November 1888
• Citation: 40 Kan. 173,19 P. 719
• Parties: ISAAC ANDERSON v. THE CITY OF WELLINGTON
• Court: Kansas Supreme Court

19 P. 719

40 Kan. 173

ISAAC ANDERSON v. THE CITY OF WELLINGTON

Supreme Court of Kansas

November 10, 1888

Error from Sumner District Court.

PROSECUTION for a violation of a certain ordinance of the city of Wellington. At the September term, 1887, of the district court, Isaac Anderson was found guilty, and fined $ 10 and the costs of the prosecution, and was ordered to be committed to jail until the fine and costs were paid. He appeals. The material facts are set forth in the opinion.

Judgment reversed and case remanded for further proceedings.

Halsell & Ray, and Ready & Ready, for appellant.

Isaac G. Reed, city attorney, and McDonald & Parker, for The City.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.

On the 15th day of August, 1887, the following ordinance was duly passed and approved by the mayor and council of the city of Wellington, then and now a city of the second class, to wit:

"ORDINANCE No. 422.

"AN ORDINANCE for the regulation of street parades, and the prevention of public disturbances and breaches of the peace.

"Be it ordained by the Mayor and Councilmen of the city of Wellington, Kansas:

"1. It shall be unlawful for any person or persons, society, association or organization, under whatsoever name, to parade any public street, avenue or alley of the city of Wellington, Kansas, shouting, singing, or beating drums or tambourines, or playing upon any other musical instrument or instruments, or doing any other act or acts designed, intended or calculated to attract or call together an unusual crowd or congregation of people upon any of said public streets, avenues or alleys, without having first obtained in writing the consent of the mayor of said city, authorizing such parade. In case of the absence of the mayor from the city, such consent may be granted by the president of the council, city clerk, or city marshal, in the order named: provided, that the provisions of this section shall not apply to funerals, fire companies, regularly organized companies of the state militia, or United States troops.

"2. Any person or persons violating any of the provisions of section one of this ordinance shall be deemed guilty of a misdemeanor, and upon conviction in the police court of the city of Wellington shall be fined in any sum not less than five dollars nor more than one hundred dollars, or imprisonment for a period not exceeding ninety days, or both such fine and imprisonment, in the discretion of the court.

"3. This ordinance shall take effect and be in full force from and after its publication once in the official newspaper of the city of Wellington, Kansas."

The ordinance, duly signed and attested, was, on the 17th day of August, 1887, published in the Wellington Morning Quid-Nunc, a paper printed and published in said city, and known and recognized as the "official newspaper" thereof; and the issue of said newspaper which contained said publication was printed, delivered and distributed throughout the city before and by the hour of 7 o'clock A. M. of said day. At about 8 o'clock in the evening of the same day, the appellant and others, calling themselves the "Salvation Army," assembled at their hall or "barracks" in the city, and under the command of their female "captain" (Shiltz), who had seen and read the published ordinance in the morning, proceeded to parade Washington avenue and other public streets of the city, singing, shouting, and playing tambourines, etc., to attract an unusual crowd thereon, and expecting to be arrested therefor. And thereupon the arrest of the appellant and a number of his male and female associates was made, and appellant and two other males (the females in consideration of their sex having been released from arrest) were tried and convicted in the police court, from which appeals were taken to the district court, where convictions were again had; and appellant, Isaac Anderson, brings his case here. He attacks the validity of the ordinance, and claims it is void, because (1) it is not within the power of the city council to enact such an ordinance; (2) the ordinance undertakes to make that criminal which in its nature is not criminal; (3) because it gives to the officers named, not the right to regulate, but to prohibit, street parades; (4) because it is unreasonable and oppressive, and does not act upon all classes alike, and is not fair, general, and impartial. It is also objected to because it had not been legally published; and because it contains more than one subject; and because it attempts to revise and amend another ordinance without referring to the same, and repealing it, in violation of § 746, Comp. Laws of 1881, p. 165.

As to the power of the council to pass such an ordinance, our attention has been called to §§ 31, 50, 67, ch. 19, Comp. Laws of 1885. These in general terms authorize the council to enact such ordinances as are not repugnant to the constitution and laws of the state, and such as it shall deem expedient for the good government of the city, the preservation of peace and good order, and to restrain and prohibit noises, disturbances and disorderly assemblies in any street, house or place in the city. This is about the extent of the legislative grant of authority. The ordinance in question makes it unlawful for any persons, society, association or organization to parade any public street, avenue or alley of the city of Wellington, shouting, singing, or beating drums or tambourines, or playing upon any musical instrument designed, intended or calculated to attract or call together an unusual crowd of people upon such street, avenue or alley, without having first obtained in writing the consent of the mayor of said city, authorizing such parades. Funerals, fire companies, regularly organized companies of state militia and United States troops are excepted from the operation of the ordinance. Persons convicted of the violation of the ordinance may be fined in any sum not less than $ 5 nor more than $ 100, or punished by imprisonment not exceeding ninety days, or by both fine and imprisonment.

The power to pass a city ordinance must be vested in the governing body of the city by the legislature in express terms, or be necessarily or fairly implied in and incident to the powers expressly granted, and must be essential to the declared purposes of the corporation -- not simply convenient, but indispensable. (Dillon, Mun. Corp., 3d ed., p. 115, and authorities cited.) Any fair and reasonable doubt concerning the existence of the power is resolved by the courts against the corporation, and the power is denied. Powers encroaching upon the rights of the public or of individuals must be plainly and literally conferred by the charter. (Breninger v. Belvidere, 44 N.J.L. 350; Horr & Bemis, Munic. Police Ord., p. 18.)

In addition to this, the ordinance must be reasonable; not inconsistent with the laws of the state; not repugnant to fundamental rights; must not be oppressive; must not be partial or unfair; must not make special or unwarranted discriminations, and must not contravene common right. These restrictions upon the power of the common councils of cities in this country have been frequently imposed, and almost universally recognized in all the courts of last resort that have expressed opinions upon the subject. The object of this ordinance, and the danger apprehended and to be avoided by its enactment and enforcement as expressed by its terms is, to...