Ex parte Johnson

• Decision Date: 29 October 1921
• Docket Number: A-4076.
• Citation: 201 P. 533,20 Okla.Crim. 66
• Parties: EX PARTE JOHNSON.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

201 P. 533

20 Okla.Crim. 66

EX PARTE JOHNSON.

No. A-4076.

Court of Criminal Appeals of Oklahoma

October 29, 1921

Syllabus by the Court.

Within the limits prescribed by the Constitution and statute laws of this state, cities existing under a special charter form of government may have larger powers of self-government than are accorded to cities existing under general laws.

It is within the authority of the state, in the exercise of its police powers, to prohibit moving picture shows on Sunday and such authority may be, by general law or by special charter, delegated to cities in the exercise of local self-government.

It is for the lawmaking body of a municipality or for the people themselves, in the exercise of the initiative and referendum to determine, within the bounds of reason, the necessity or expediency of specific police regulations, subject only to the limitations prescribed by the Constitution and statutes of this state.

Where the Legislature has made or may by general law make a specific police regulation, that fact of itself will not prevent the lawmaking power of a city from making further regulations on the same subject, not inconsistent with general laws. A municipality may move in the same direction as the Legislature, but not contrary to nor in an opposite direction.

The prohibiting of moving picture shows on Sunday is not unconstitutional as class legislation, nor does it confiscate nor impair the value of property without due process of law or deprive the accused of the equal protection of law under the federal Constitution.

In this state persons charged with the violation of a city ordinance where the punishment is or may be imprisonment, or a fine and costs in excess of $20 with or without imprisonment, are entitled to a trial by jury. A municipal court in this state may summarily and without a jury impose a fine and costs not in excess of $20, and may imprison the accused for the payment of such penalty, but not otherwise.

Additional Syllabus by Editorial Staff.

The regulation or prohibition of Sunday amusements, including moving picture shows, by a municipal corporation by ordinance, is not unreasonable, and is a necessarily implied power granted to municipalities under the Constitution.

William Johnson was convicted of operating a moving picture show on Sunday in the city of Bartlesville, and his punishment fixed at a fine of $50 and costs, in default of which he was incarcerated in the city jail, and he petitions for writ of habeas corpus. Writ allowed, and respondent ordered to release petitioner.

Foster & O'Neil, of Bartlesville, for petitioner.

E. L. Fulton, Asst. Atty. Gen., A. O. Harrison, of Bartlesville, and D. A. Richardson, of Oklahoma City, for respondent.

BESSEY J.

William Johnson, the petitioner, was on the 4th day of September, 1921 (Sunday), arrested for violating certain ordinances of the city of Bartlesville, by operating and maintaining a moving picture show in said city on Sunday. On the 6th day of September, 1921, the petitioner was tried on this charge and found guilty, and his punishment was fixed at a fine of $50 and costs, amounting to $6.75, in default of the payment of which the petitioner was committed to and incarcerated in the city jail until such fine and costs should be paid.

At the trial the petitioner pleaded not guilty and demanded a trial by jury, which was by the court denied. Application was made to the district court of Washington county for petitioner's release on a writ of habeas corpus, which application was by that court denied. Whereupon a like application was lodged in this court, which is now under consideration.

The grounds alleged in the application may be summarized as follows:

(1) That the ordinances under which the petitioner was tried and convicted, being ordinance No. 580, and No. 882, amendatory thereto, are void for the reason that the city of Bartlesville, under the law and the provisions of its charter, is without authority to enact an ordinance regulating or prohibiting the operation of moving picture shows in Bartlesville on Sunday.

(2) That the ordinance, as amended, provides for a penalty in excess of the maximum penalty prescribed by statute for work and labor done and performed on Sunday, and is therefore void.

(3) That the ordinance is class legislation, unconstitutional and against common rights, and its enforcement is calculated to and has deprived this petitioner of his liberty without due process of law.

(4) That the petitioner was deprived of his right of a trial by jury.

The ordinance complained of, as amended, is as follows:

"An ordinance prohibiting the operation and running of moving picture shows, inclusive of any vaudeville acts, and likewise the staging and producing of theatrical entertainments on Sunday, providing penalties for violation, repealing all conflicting ordinances, and declaring an emergency.

Be it ordained by the board of commissioners of the city of Bartlesville, Oklahoma:

Section 1. It is hereby declared unlawful for any person, firm or corporation to operate or conduct or to cause to be operated or conducted within the limits of this city, any moving picture show or to exhibit for hire or otherwise any moving pictures, inclusive of any so-called vaudeville acts or performance on the Sabbath day, or the first day of the week, commonly known and designated as Sunday.

Section 2. It is hereby declared unlawful for any person, firm or corporation to stage, exhibit or produce or to cause to be staged, exhibited or produced, any form of theatrical entertainment for hire, or otherwise, within the limits of this city on the Sabbath day or the first day of the week, commonly known and designated as Sunday.

Section 3. Any person assisting in any fashion as servant, agent, laborer or employee, or otherwise, in a violation of the provisions of sections 1 and 2 of this ordinance shall likewise be deemed guilty of a misdemeanor and shall be punished as provided by the terms of this ordinance.

Section 4. Any person, firm or corporation adjudged guilty of the violation of any of the provisions of this ordinance, upon conviction shall be fined in a sum of not more than fifty dollars ($50.00) nor less than five dollars ($5.00), together with the costs of the action.

Section 5. All ordinances or parts of ordinances in conflict herewith are hereby repealed.

Section 6. Owing to the fact that at the present time there is no adequate ordinance in force in this city covering the subject of this ordinance, and to the further fact that certain persons, firms and corporations are about to stage, exhibit and produce certain theatrical entertainments and moving pictures on the Sabbath day,

Now, therefore, for the preservation of the public peace, an emergency is hereby declared to exist by reason whereof this ordinance shall be in full force and effect from and after its due passage, approval and publication as required by law."

Section 3, art. 18, of our Constitution provides that any city containing more than 2,000 inhabitants may frame a charter for its own government, consistent with and subject to the laws of this state, which when approved shall be the organic law of the city.

Section 4, art. 1, of the charter of the city of Bartlesville is, in part, as follows:

"The city shall have all the powers conferred upon cities of the first class by the Constitution of the state of Oklahoma and by the laws of the state not rendered inoperative by the adoption of this charter, and shall have all such legislative, executive, and judicial power as is necessarily incident to or proper in the conduct of its business and affairs and such as will promote the interests and secure the rights of its inhabitants, as fully as if specifically enumerated herein. The enumeration of any particular powers shall in no wise limit the plenary powers above provided for said city."

Section 1, art. 5, of said charter is as follows:

"The board of commissioners shall consist of three members, elected in the manner prescribed by this charter, and, except as otherwise provided herein, shall be vested with all legislative powers of the city."

Within the limitations prescribed by the Constitution, it was clearly the intent of the framers of the Constitution to delegate local self-government to cities under a charter form of government in a larger measure and to a greater extent than is accorded cities existing under general law. Under the general laws of this state municipal corporations are vested with local police powers delegated to them by statute, specifically expressed or necessarily implied. Cities may make and enforce within their limits all such local police, sanitary, and other regulations as are calculated to promote the health, sanitation, comfort, convenience, and welfare of the community, not in conflict with the Constitution and general laws. If cities existing under general laws have these powers, cities existing under special charters may have all these and more, depending upon the provisions of the charter.

It is practically impossible to define with precision the term "police power" because of the vast variety of conditions and circumstances governing its application. Chief Justice Shaw states:

"It is the power to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the Constitution."

It is always easier to determine whether a particular case comes within the general scope of its powers than to give an exact abstract definition of the power itself. 3 McQuillin on Municipal Corporations, §§ 889, 890, 894.

It is well recognized that police regulations appropriate for a rural...