City Of Richmond v. Laundry

• Decision Date: 12 January 1911
• Citation: 111 Va. 758,69 S.E. 932
• Parties: CITY OF RICHMOND v. MODEL STEAM LAUNDRY.
• Court: Virginia Supreme Court

69 S.E. 932

111 Va. 758

CITY OF RICHMOND

v.MODEL STEAM LAUNDRY.

Supreme Court of Appeals of Virginia.

Jan. 12, 1911.

1. Constitutional Law (§ 240^*) — Equal Protection—Police Regulations—Validity.

An ordinance prescribing a penalty for using a furnace for melting metals or glass, or for using a stationary steam engine, in which fuel other than anthracite coal is used, without a permit from the city council, fixing the location, height of stacks, etc., is invalid, as violating Const. U. S. Amend. 14, in that it vests in the city council arbitrary power and unreasonable power; no conditions upon which the permit may be granted or rules securing impartial exercise of the power being prescribed.

[Ed. Note.—For other cases, see Constitutional Law, Dec. Dig. § 240.*]

2. Municipal Corporations (§ 63*)—Determination of Question.

A municipal ordinance which permits exercise of arbitrary and unreasonable power will be held invalid, without awaiting actual exercise of such power.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1378; Dec. Dig. § 63.*]

Error to Hustings Court of Richmond.

The Model Steam Laundry was tried for violating an ordinance of the city of Richmond, and the city brings error from a judgment declaring the ordinance void. Affirmed.

H. R. Pollard and Geo. Wayne Anderson, for plaintiff in error.

R. E. Peyton, Jr., and Sands & Swartwout, for defendant in error.

WHITTLE, J. The defendant in error was fined by the police justice of the city of Richmond for violation of the following ordinance:

"No furnace for melting iron or other metals, or making glass, and no stationary steam engine, designed for use in any mill for planing or sawing boards, or turning wood, or for any other purpose, or in which other fuel than anthracite coal is used to create steam, shall be erected, or put up to be used in this city, unless a permit therefor shall have been first granted by the city council, prescribing the place where the building in which such steam engine or furnace is to be used, is located, or where the same shall be erected; the materials and construction thereof, with such regulations as to height of stacks or chimneys, as to prevent the use of the same from being offensive to the occupants of adjacent property; and such protection against fire as they may deem necessary for the safety of the neighborhood. Every person erecting, setting up, or using any such furnace or steam engine without the said permit, or in violation of any of the conditions, provisions, restrictions or regulations thereof, shall be deemed guilty of a misdemeanor, and upon conviction thereof before the police justice, shall be fined not less than five nor more than twenty dollars, and each day's continuance of such misdemeanor shall be a separate offense."

On appeal to the hustings court, the ordinance was held to be in contravention of the fourteenth amendment of the Constitution of the United States, in that it vests in the city council arbitrary and unreasonable power.

Careful consideration of the condemned ordinance shows that it prescribes no fixed rules for the conduct of the businesses with which it undertakes to deal, applicable alike to all citizens who may bring themselves within its terms; but every person desiring to engage in such occupations must first obtain a permit from the city council, whose powers are undefined and absolute; and in default thereof shall be deemed guilty of a misdemeanor. The ordinance prescribes no conditions upon which the permit may be granted, and furnishes no rules by which an impartial exercise of the power vested in the council may be secured. The discretion of that body is in no way regulated or controlled, and is purely arbitrary.

It is no answer to these objections to say "that it is time enough to complain of the ordinance when the power of the city council shall have been arbitrarily exercised." The test of the validity of a law is not what has been done, but what may be done under its provisions. As far as our investigation of the authorities has gone, they are practically unanimous in declaring invalid ordinances of this character as obnoxious to theequality and uniformity clause of the Constitution.

The case of Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220, is a controlling authority on the subject. For...