Brim v. Jones

• Decision Date: 16 March 1895
• Docket Number: 534
• Citation: 39 P. 825,11 Utah 200
• Court: Utah Supreme Court
• Parties: ALFRED G. BRIMM, ROAD SUPERVISOR, APPELLANT, v. THOMAS W. JONES, RESPONDENT

39 P. 825

11 Utah 200

ALFRED G. BRIMM, ROAD SUPERVISOR, APPELLANT, v. THOMAS W. JONES, RESPONDENT

No. 534

Supreme Court of Utah

March 16, 1895

APPEAL from the District Court of the Third Judicial District. Hon Samuel A. Merritt, Judge.

Action by Alfred G. Brimm, as road supervisor, against Thomas W Jones. This action was begun in the justice court, Echo precinct, Summit county, Utah. There was a demurrer to the complaint, which was overruled, and judgment was afterwards duly entered for the sum of $ 10 and $ 9.50 costs. Thereupon defendant appealed to the district court, where the demurrer was sustained and the complaint dismissed. From the judgment dismissing the complaint, plaintiff appeals.

Reversed.

Mr David B. Tewksbury (Messrs. Williams, Van Cott & Sutherland, of counsel), for appellant.

Messrs. Richards & Richards, for respondent.

Respondent claims that the section of the statute under which this action was brought is void, because it contravenes the 14th amendment to the constitution of the United States, which provides that no state shall "deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." This provision of the constitution applies to the territories as well as to the states. U. S. Rev. Stat. § 1891. The act is unconstitutional, as being within the constitutional inhibition found in the 14th amendment, and also it is not within the general police power of the territory. "Under the mere guise of police regulations, personal rights and private property cannot be arbitrarily invaded, and the determination of the legislature is not final or conclusive." In re Jacobs, 98 N.Y. 98; S. C. 50 Am. Rep. 648; People v. Budd, 117 N.Y. 1; S. C. 15 Am. St. Rep. 460. The act is unconstitutional because it deprives a certain class of persons of their property without due process of law and denies them the equal protection of the law. Hurtado v. California, 110 U.S. 558; Cooley's Const. Lim. p. 433; Pearson v. Yewdall, 24 L.Ed. S.Ct. pp. 436-7 note; Bank v. Cooper, n. 24 Am. Dec. 537-545; Miller on the Const. pp. 661-665. This is not an open question in this territory. In the cases of Jensen v. U. P. Ry. Co., and Shaw v. Utah Northern Ry. Co., 6 Utah, 253, this court decided that the following act was unconstitutional: Any corporation operating a railway or railroad within this territory, which shall injure or kill any live stock, by running any engine * * * over or against any such live stock shall be liable to the owner or owners of such live stock for the damage sustained * * * by reason of such injuring or killing. Cottrell v. U. P. Ry. Co., 21 P. 417; Railroad Co. v. Parks, 32 Ark. 131; Zeigler v. Railroad Co., 58 Ala. 595; Railroad Co. v. Lackey, 78 Ill. 55; Oregon Ry. & Nav. Co. v. Smalley, 23 P. 1009.

See, also: Birmingham Mineral Ry. Co. v. Parsons (Ala.), 13 Southern, 602; R. G. W. Ry. Co. v. Chambertin (Col.), 34 P. 1113; R. G. W. Ry. Co. v. Vaughn, 34 P. 264; State v. Devine (N. C.), 4 Southeastern, 447; Ohio & Miss. Ry. Co. v. Lackey, 78 Ill. 55; Health Dept. v. Rector, 17 N.Y.S. 510; East Kingston v. Towle, 48 N.H. 57. A city ordinance of Los Angeles, making it a misdemeanor for a contractor to employ any person to work more than eight hours a day, or to employ Chinese labor where the work was to be performed under any contract with the city, was held unconstitutional and void and not a valid exercise of the police power. Ex parte Kuback, 85 Cal. 274. A statute which makes the affidavit of the owner of stock killed or maimed on a railroad track conclusive evidence of the amount of damages sustained by the owner does not provide due process of law, and is therefore unconstitutional. Savannah, etc., Co. v. Geiger, 21 Fla. 669. A statute which makes the treasurer's deed conclusive evidence of the regularity of all prior tax proceedings is void, because it deprives the owner of his property without due process of law, so far as respects the essential prerequisites for the exercise of the taxing power. McCready v. Sexton, 29 Ia. 356. A statute which provides that the rates of charges for passengers and freights recommended and published by a state railroad commission shall be final and conclusive evidence as to what are equal and reasonable, and that there can be no judicial inquiry as to the reasonableness of such rates, deprives a railway company of its property without due process of law. Chicago, etc., Ry. Co. v. Minnesota, 134 U.S. 418. Numerous instances where statutes have been held unconstitutional because they deprived persons of their rights without due process of law are given in note to Bardwell v. Collins, 20 Am. St. Rep. 556; State v. Ellet, n. 21 Am. St. Rep. 780.

In the Slaughter-house cases, 16 Wall. 62, it was said that "the police power is, from its nature, incapable of any exact definition or limitation;" and in Stone v. Mississippi, 101 U.S. 818, that "it is easier to determine whether particular cases come within the general scope of the police power than to give an abstract definition of the power itself which will be in all respects accurate." Slaughter-house cases, supra; Stone v. Mississippi, supra; Smith v. Bivens, 56 F. 356. In the case of New Orleans Gas Light Co. v. Louisiana Gas & Heat Pro. & Manfg. Co., 115 U.S. 650, Mr. Justice Harlin delivered a most carefully considered and able opinion, wherein was reviewed the previous decisions of the court relating to the police power of the states, so that the police power only comprised such subjects as pertain to the public health, the public morals and the public safety, and that it is confined within the limits of these three subjects. See, also, Barbier v. Connolly, 113 U.S. 32; Soon Hing v. Crowley, 113 U.S. 703; U. P. v. DeBusk, 3 L. R. A. 350; Mathews v. St. Louis S. F. Ry. Co. (Mo.), 24 Southwestern, 591; Denver T. & G. Ry. Co. v. DeGraff, 2 Colo. App. 2; U. P. Ry. Co. v. Arthur, Id. 139. In Yick Wo v. Hopkins, 118 U.S. 356, the court had under consideration the following ordinance of the city of San Francisco: "It shall be unlawful, from and after the passage of this order, for any person or persons to establish, maintain, or carry on a laundry within the corporate limits of the city and county of San Francisco, without having first obtained the consent of the board of supervisors, except the same be located in a building constructed either of brick or stone." This ordinance was held unconstitutional as being in violation of the provisions of the fourteenth amendment.

SMITH, J. KING, J., concurs. BARTCH, J., dissents.

OPINION

SMITH, J.:

The sole question raised upon the appeal in this case is whether or not section 2087, Comp. Laws Utah 1888, is valid and constitutional. The section reads as follows: "Any person who drives a herd of horses, mules, asses, cattle, sheep, goats or swine over a public highway where such highway is constructed on a hillside, shall be liable for all damage done by such animals in destroying the banks or rolling rocks into or upon such highway." The court below decided that this section was invalid and void, and the respondent claims that it is in violation of that portion of the fourteenth amendment to the constitution of the United States which provides: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction, the equal protection of the laws." It is contended that this statute deprives the class of persons described in it of the equal protection of the laws, and deprives them of property without due process of law. An exhaustive argument is made in behalf of both the appellant and respondent in this case, and we have examined all the cases cited on either side. "The question whether a law be void for its repugnancy to the constitution is at all times a question of much delicacy, which should seldom, if ever, be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful of the solemn obligations which that station imposes; but it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other." This was the language of Marshall, C. J., in Fletcher v. Peck, 10 U.S. 87, 6 Cranch 87, 3 L.Ed. 162. It is by this rule then that we must determine whether the statute in this case violates the constitution. The claim on behalf of the respondent is that the act is class legislation, and denies to drovers named in it that protection of the law which it extends to other citizens. We cannot agree with the respondent that this law is objectionable upon the ground stated.

In the case of Allen v. Press Co. (Minn.), 41 N.W 936, S. C. 12 Am. St. Rep. 707, Justice Mitchell, of Minnesota, delivering the opinion of the court, says: "Laws public in their object may be confined to a particular class of persons, if they be general in their...