In re Anderson

• Decision Date: 03 July 1903
• Docket Number: 13,259
• Parties: IN RE ANDERSON ET AL
• Court: Nebraska Supreme Court

96 N.W. 149

69 Neb. 686

IN RE ANDERSON ET AL

No. 13,259

Supreme Court of Nebraska

July 3, 1903

ERROR to the district court for Douglas county: LEE S. ESTELLE DISTRICT JUDGE. Affirmed.

AFFIRMED.

John O Yeiser and Charles B. Prichard, for plaintiff in error.

Frank H. Gaines, James C. Kelby, John A. Story and George C Martin, contra.

OPINION

POUND, C.

Section 50, chapter 12a, Compiled Statutes, 1901 (Annotated Statutes, 7499), governing cities of the metropolitan class, provides, among other things, tat the mayor and council may by ordinance regulate and prohibit "the distribution or posting of advertisements or handbills in the street or public grounds, or upon the sidewalks." Pursuant to this statutory authority, the city of Omaha adopted an ordinance, known as No. 3413, in the following terms:

"It is hereby declared unlawful for any person or persons to circulate or distribute upon any of the public streets, alleys, sidewalks, or public grounds of the city of Omaha, or to scatter about, or to hand to any person on any public street, alley, sidewalk or public grounds of the city of Omaha any such dodgers, hand-bills, or circulars. It is further declared unlawful for any person, firm or corporation to employ any boy or other person to circulate or distribute any such dodger, handbill, or circular upon any public street, alley, sidewalk, or public grounds of the city of Omaha. Any person, firm or corporation violating any of the provisions of this section shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in any sum not less than two dollars ($ 2) or exceeding twenty dollars ($ 20)."

Complaint was made under this ordinance charging Sid Anderson and Si Johnson with unlawfully circulating and distributing upon the sidewalks and other public places in the city of Omaha printed dodgers, handbills and circulars. The police court found them guilty of distributing circulars on the sidewalks contrary to the ordinance, sentenced them to a fine of $ 2 and costs, and committed them to the city jail in default of payment. Thereupon application was made to the district court on their behalf for a writ of habeas corpus, and, upon hearing, they were remanded to the custody of the chief of police. Error is prosecuted from this judgment.

As the petitioners were convicted of distributing circulars upon the sidewalk, we need not, perhaps, consider the validity of that portion of the ordinance which makes it unlawful to hand to any person dodgers, handbills or circulars on the public streets. We may say, however, that that portion of the ordinance must obviously be construed in connection with the remainder, and that from the whole context, it is evident that general distribution of printed matter in the form of dodgers, handbills or circulars to the public generally, or to considerable numbers of persons, is intended, and not a mere casual handing of one or more papers of that character to one or two individuals. So construed, we think, the whole ordinance is valid and constitutional. When a municipal corporation is expressly authorized by legislation to enact a certain ordinance in execution of the police power, such ordinance stands on the same basis as a statute, and its reasonableness or unreasonableness is not a matter for the courts, except as such question would bear on the constitutionality of a statute of the same nature. 1 Dillon,...