Cook v. Burnquist

• Decision Date: 16 July 1917
• Citation: 242 F. 321
• Parties: COOK v. BURNQUIST et al.
• Court: U.S. District Court — District of Minnesota

242 F. 321

COOK v. BURNQUIST et al.

United States District Court, D. Minnesota, Third Division.

July 16, 1917

M. H Boutelle and E. S. Cary, both of Minneapolis, Minn, for complainant.

Ambrose Tighe, of St. Paul, Minn., for Safety Commission.

C. D Gould, of Minneapolis, Minn., for city of Minneapolis and its officers.

BOOTH District Judge.

This suit is brought by the plaintiff against the members of the Public Safety Commission of Minnesota, the city of Minneapolis, its mayor its chief of police, and its city attorney, seeking to enjoin the defendants from enforcing an order of the Commission which is known as 'Order No 7,' or from enacting any ordinance or regulation enforcing the same, or from threatening to prosecute or from prosecuting for nonobservance of said Commission's order.

The motion now under consideration is a motion made on behalf of the plaintiff for a preliminary injunction, and has been heard on a verified amended bill, several exhibits which have been introduced, and some little oral testimony on behalf of plaintiff, and on behalf of defendants a return to the order to show cause, consisting of a verified answer, certain affidavits, several exhibits and some oral testimony.

The bill of complaint sets up, among other things, the official character of the several defendants, and that plaintiff is and has been for some time, the proprietor of a saloon and restaurant in the city of Minneapolis located at 25 Washington Avenue North; that he has built up a large and lucrative business, and that he has been conducting the same in accordance with the laws of the state of Minnesota and the ordinance of the city of Minneapolis. The bill of complaint then alleges that on the 16th day of April, 1917, the Legislature of the state of Minnesota passed a certain act, which is chapter 261 of the Session Laws of 1917, entitled 'An act providing for the Minnesota Public Safety Commission, defining its powers and duties in the event of war and otherwise, and appropriating money for carrying out the purposes thereof, ' and the bill sets forth a synopsis of the act. It next sets forth that on or about June 5th said Commission caused to be adopted a certain order designated as 'Order No. 7,' and served the same upon the various local officials and authorities of the state. It then sets out a synopsis of the order. It next sets forth that by various threats and otherwise the members of the Commission required the defendant mayor of the city of Minneapolis to instruct the superintendent of police of the city of Minneapolis, and through him the police force, to enforce and carry out the terms of the order, and that the order has been carried out, and that the city council is threatening to pass an ordinance enforcing the provisions of the order. It then sets out that plaintiff has obeyed this order and closed his establishment at 10 o'clock in the evening, whereas formerly he was accustomed to keep it open until 11 o'clock in the evening, in accordance with the provisions of the state law, and that by reason thereof he has suffered great loss and damage in his business. It then sets forth, first, that the act of the Legislature referred to is in contravention of the Constitution of the United States in certain specified particulars; and, second, that said act, if it is construed as authorizing the Commission to make the Order No. 7, is also in contravention of the Constitution of the state of Minnesota; and, third, that if it is construed as not authorizing the issuance of the Order No. 7, then the act of the Commission in issuing Order No. 7 is without authority of law, and is a usurpation of power; and he prays, as I have already stated, an injunction and other relief.

The answer of the defendants admits the passage of the act of the Legislature, and states certain facts and circumstances in view of which it was passed, admits the issuance of Order No. 7, and denies the other allegations of the complaint.

At the commencement of the argument upon the motion for a preliminary injunction, counsel for plaintiff stated that the plaintiff does not seek a preliminary injunction on the first ground stated, namely, that chapter 261 violates the provisions of the federal Constitution, but that he seeks the injunction only on the second and third grounds. With that understanding the court overruled the objection of the defendants to the jurisdiction of the court as at present organized; they claiming that, if such constitutional question was raised under the federal Constitution, at least, it required, under section 266 of the Judicial Code, the presence of three judges to constitute the court. The defendants also objected to the jurisdiction of the court as at present constituted, claiming that the word 'unconstitutional,' as used in section 266 of the Judicial Code, refers not merely to the federal Constitution but also includes unconstitutionality as regards the state Constitution That objection was also overruled. The defendants also attacked the jurisdiction of the court on the ground that, even if it should be held that the act of the Commission complained of was not within the purview of said chapter 261, still the members could not be enjoined in the present suit, as this would be maintaining a suit against the state of Minnesota. This objection has also been overruled.

Taking up the merits of the motion, the first question is: What is it that is sought to be enjoined by plaintiff? I have already read the prayer for relief contained in the bill. It has reference to Order No. 7. Now there are a number of things in Order No. 7, about which either there is no complaint in this bill, or no showing made upon which preliminary injunction can be based. For instance, there is no complaint here as to that provision of the order covering the closing of saloons until 8 o'clock on the following day, instead of 5 o'clock on the following day; nor is there any complaint, or, if there is, there is no showing for an injunction, on the ground that no women or girls be permitted to enter such saloon, or be served therefrom at any time, because plaintiff's testimony is that he had no such trade; nor is there any complaint, or, if there is, there is no showing for an injunction, based upon the order so far as it touches dancing performances, because the evidence is that there was no such performance in the plaintiff's establishment.

The really vital question in the case is this: Whether an injunction should issue against the defendants to restrain them from taking any steps to prevent the plaintiff from keeping his saloon open between the hours of 10 and 11 o'clock at night. The arguments of counsel upon this motion have taken a very wide range, and perhaps necessarily so. The question of the police powers of the state have been discussed; the nature and character and the extent of these powers; also the question of the delegation or the right of delegation of legislative power by the Legislature to other branches of the government or to administrative boards. It is not necessary, in my view of the situation, to discuss at great length any of these questions. The police power of the state of Minnesota, and indeed the police power of every state in the United States, is exceedingly broad, and the state Constitutions are simply limitations of power, and not grants of power.

The question of what is a proper exercise of the police power may be determined at one time as including certain matters and excluding others, and at another time may be determined as including even those matters that theretofore had been considered as excluded. The proper extent of the exercise of the police power is determined by the necessities of the situation, within constitutional limitations.

The question of delegation of power by the Legislature, and especially legislative power to other branches of the government, to administrative boards or to individuals, has been a question that has caused a great deal of controversy in the courts, not only in the state courts, but also in the federal courts. It has been said that the Legislature makes the law, that the executive executes the law, and that the judiciary expounds or determines what the law is. Of course, that is true as a general statement; but as a matter of fact it is of little help in any particular case, because practically all the cases that arise are border line cases, and the question to be determined is whether the particular act is a legislative act, or whether it is a judicial act, or whether it is an executive or an administrative act. This question of delegation of power is one that has received the attention of the Supreme Court of the United States, as well as the Supreme Courts of the states. The latest decision of the Supreme Court of the United States is that of First National Bank of Bay City v. Attorney General of Michigan et al., 244 U.S. 416, 37 Sup.Ct. 734, 61 L.Ed. . . ., handed down on June 11th of this year, in which was involved the act of Congress, approved December 23, 1913, establishing the Federal Reserve Board (38 Stat. 261, c. 6 (Comp. St. 1916, Sec. 9794)), and particularly section 11 (k) of the act, giving to that board authority 'to grant by special permit to national banks applying therefor, when not in contravention of state or local law, the right to act as trustee, executor, administrator, or registrar of stocks and bonds under such rules and regulations as the said board may prescribe. ' The question arose whether or not that was a delegation of legislative power to the Federal Reserve Board, such as was not authorized by the Constitution of the United States. The Supreme Court in passing upon that question used the following language:

'Before passing to

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