People v. Armstrong

• Decision Date: 18 January 1889
• Citation: 41 N.W. 275,73 Mich. 288
• Court: Michigan Supreme Court
• Parties: PEOPLE v. ARMSTRONG.

41 N.W. 275

73 Mich. 288

PEOPLE v. ARMSTRONG.

Supreme Court of Michigan

January 18, 1889

Certiorari to the recorder's court of Detroit GEORGE S. SWIFT, Recorder.

John Armstrong was convicted of distributing cards, on the streets of Detroit, inviting persons to visit the rooms of the Young Men's Christian Association.

LONG, J.

This case comes from the recorder's court of the city of Detroit by writ of certiorari. The complaint is made under section 12, c. 55, Rev. Ordinances City of Detroit, as amended August 22, 1885, and charges that at the city of Detroit on the 18th day of June, 1888, within the corporate limits of said city, on Woodward avenue, at the corner of Grand River avenue, the defendant, John Armstrong, then and there unlawfully and willfully did circulate and distribute and give away circulars, hand-bills, and advertising cards to the evil example of all others in like cases offending and contrary to the ordinance of said city, etc. The conceded facts proven on the trial are that defendant was distributing cards on the corners of Woodward and Grant River avenues, in the city of Detroit, on the evening of June 18, 1888; that defendant is one of the invitation committee referred to in the cards; that no cards were to be seen upon the ground or sidewalk at or near the place of distributing the same; that cards were given to those only who expressed or appeared to desire the same, and took the same willingly; that the use of the Y. M. C. A. privileges offered by the cards was entirely gratuitous; that cards were offered persons unknown to defendant. The cards were in the following form and size:

RPT.CC.1889026763.00010

(Image Omitted)

The provisions of the charter of the city of Detroit, under which it is claimed the city had power to pass the ordinance under which the complaint is made, reads "That the council shall have power to provide for cleaning of highways, streets, avenues, drains, alleys," etc., "of dirt, filth, and other substances; ***" also "to prohibit and prevent the incumbering or obstructing of streets, drains, alleys, dross-walks, sidewalks, and all public grounds and places, with vehicles, animals, boxes, signs, barrels, posts, buildings, dirt, stone, brick, and all other material and things whatsoever, of every kind and nature; ***" also "to control, prescribe, and regulate the manner in which highways, streets, avenues, lanes, alleys, public grounds, and spaces in said city shall be used and enjoyed; ***" also "to prohibit and prevent the flying of kites, and all practices, amusements, and doings therein having a tendency to frighten teams and horses." The ordinance under which the complaint is made reads: "Sec. 12. Hereafter no person shall himself, or by another party, attach, place, print, paint, or stamp any placard, circular, show-bill, or advertisements, of any description whatever, except such as may be expressly provided by law, on any street or sidewalk, or upon any public place or object, in the city, or upon any fence, building, or property belonging to the city, or upon any telegraph pole, telephone pole, electric light pole or tower, or upon any hitching-post, horse-block, or curb-stone, in any public street or alley in the city of Detroit, and no person shall himself or by another circulate, distribute, or give away circulars, hand-bills, or advertising cards of any description in or upon any of the public streets and alleys of said city." On the trial of the case, defendant's attorney asked for the discharge of the defendant, which the court overruled, and found the defendant guilty, and imposed a fine of three dollars, in default of payment of which fine defendant was ordered to be imprisoned in the Detroit house of correction for a period not exceeding 20 days. The said fine was imposed under authority of section 19, c. 55, of the ordinance, which reads: "Sec. 19. Any violation of the provisions of this ordinance shall be punished by a fine not to exceed one hundred dollars, and costs of prosecution; and in the imposition of any fine and costs the court may make a further sentence that the offender may be imprisoned in the Wayne county jail or the Detroit house of correction until the payment thereof: provided, however, that the period of such imprisonment shall not exceed six months."

The allegations of error contained in the affidavit for the writ of certiorari are: That the ordinance upon which this complaint is based is invalid, in that the common council had no authority under the charter of the city to adopt the same; that the ordinance is invalid, because unreasonable, oppressive, and in contravention of constitutional rights; that the court had no authority to impose any fine or penalty, because the ordinance under which the penalty is claimed to be imposed is unconstitutional, in that it permits and authorizes the imposition of fines and penalties excessive and unreasonable and entirely disproportionate to offenses created and specified; that the court had no authority to impose a penalty, and the judgment is void because the ordinance under which the...