In re Garrabad

• Decision Date: 11 April 1893
• Citation: 54 N.W. 1104,84 Wis. 585
• Parties: IN RE GARRABAD.
• Court: Wisconsin Supreme Court

84 Wis. 585

54 N.W. 1104

IN RE GARRABAD.

Supreme Court of Wisconsin.

April 11, 1893.

Application by Joseph Garrabad for a writ of habeas corpus, and to be discharged from the custody of the sheriff.A demurrer to the return of the sheriff was overruled, and petitioner by certiorari brings up the order for review.Order reversed, and petitioner discharged.

The other facts fully appear in the following statement by PINNEY, J.:

This is a proceeding by certiorari to review the decision of C. L. Dering, court commissioner of Columbia county, in the matter of his refusal to discharge the petitioner, Joseph Garrabad, from custody, and remanding him to the imprisonment of which he complains.It appears from the return of the sheriff of Columbia county to the writ of habeas corpus issued by the commissioner that on the 27th day of February, 1893, the petitioner was placed in his custody, and was held therein, under and by virtue of an execution or so-called “commitment,” issued by V. Helman, a justice of the peace of the city of Portage, in said county, reciting that the city of Portage had recovered a judgment before said justice against the petitioner for the sum of $5, together with $13.85 costs of suit, for the violation of an ordinance of said city. to wit, No. 124, entitled “An ordinance to regulate street parades and insure public safety,” and commanding the sheriff or any constable of the county to levy the same on the goods and chattels of the said petitioner, except such as the law exempts, and, in default thereof, to take his body, and him convey and deliver to the keeper of the common jail of Columbia county, to be there kept in custody for the term of 20 days, unless said judgment with costs was sooner paid, or he should be discharged by due course of law.The ordinance in question provides that “it shall be unlawful for any person or persons, society, association, or organization, under whatsoever name, to march or parade over or upon” certain streets (therein named) in the city of Portage, “shouting, singing, or beating drums or tambourines, or playing upon any other musical instrument or instruments, for the purpose of advertising or attracting the attention of the public, or to the disturbance of the public peace or quiet, without first having obtained a permission to so march or parade, signed by the mayor of said city.In case of illness or absence of the mayor or other officer hereby designated of the city, such permission may be granted and signed by the president of the council, city clerk, or marshal, in the order named: provided, that this section shall not apply to funerals, fire companies, nor regularly organized companies of the state militia: and provided, further, that permission to march or parade shall at no time be refused to any political party having a regular state organization.Any person violating any of the provisions of this ordinance shall, upon conviction thereof, be fined in a sum not less than two dollars or more than ten dollars.”The second section provided that the marshal should accompany such person or persons receiving permission while upon the portion of the streets described, to preserve order, warn the owners of horses upon said portions of said streets, and to carefully preserve the public safety; and when such permission is given by any officer other than the marshal, that he should forthwith notify the marshal of the granting of the same.The sheriff further returned that “the central part of the business portion of the city of Portage is contained within the limits defined in the ordinance, and the streets therein referred to were narrow, and cross and enter each other at various angles, and there was a great deal of traffic over the same, and that the petitioner had been duly and lawfully convicted of a willful violation of said ordinance upon trial duly and legally had.”The petitioner demurred to the return, and the commissioner overruled the demurrer, and ordered that he be remanded to the custody of the sheriff, to be confined in the county jail of said county, according to the terms of said execution.Rogers & Hall, for relator, Garrabad.

W. S. Stroud, for court commissioner, C. L. Dering.

PINNEY, J., (after stating the facts).

The city charter of the city of Portage(Laws 1882, c. 132, § 31) confers upon the common council of the city power to pass ordinances and by-laws on certain subjects, under and by virtue of the delegation of the police powers of the state to the common council and city officers for the government of the city, and the preservation of order and public safety.In respect to such ordinances or by-laws it has long been the established doctrine that they must be reasonable, not inconsistent with the charter nor with any statute, nor with the general principles of the common law of the land, particularly those having relation to the liberty of the subject or the rights of private property.Dill.Mun. Corp. § 319, and cases cited in notes.The particular objections urged to the validity of the ordinance in question fall within the scope of the fourteenth amendment to the constitution of the United States, which provides that “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.”These provisions apply equally to all persons within the territorial jurisdiction of the United States, without regard to any differences of color or nationality; and the equal protection of the laws is a pledge, it is held, “of the protection of equal laws.”Yick Wo v. Hopkins, 118 U. S. 369, 6 Sup. Ct. Rep. 1064.

It is objected that the ordinance is void on its face, by reason of its operating unequally and creating an unjust and illegal discrimination, not only (1) by the express terms of the ordinance itself, but (2) it is so framed as to punish the petitioner for what is permitted to others as lawful, without any distinction of circumstances, whereby an unjust and illegal discrimination occurs in its execution, and which, though not made by the ordinance in express terms, is made possible by it; (3) in that it vests in the mayor, or other officers of the city named in it, power to arbitrarily deny persons and other societies or organizations the right secured by it to others to march and parade on the streets named.The general subject and scope of the ordinance is marching or parading by “any person or persons, society, association, or organization” over the streets named, “shouting, singing, or beating drums or tambourines, or playing upon any musical instrument or instruments, for the purpose of advertising or attracting the attention of the public, or to the disturbance of the public peace or quiet,” without having obtained permission as prescribed in the...