State v. Sugarman

• Decision Date: 17 July 1914
• Docket Number: No. 18701[9].,18701[9].
• Citation: 126 Minn. 477,148 N.W. 466
• Parties: STATE v. SUGARMAN et al.
• Court: Minnesota Supreme Court

126 Minn. 477

148 N.W. 466

STATE

v.SUGARMAN et al.

No. 18701[9].

Supreme Court of Minnesota.

July 17, 1914.

Appeal from Municipal Court of Minneapolis; W. W. Bardwell, Judge.

Abe Sugarman and others were convicted of violating an ordinance of the City of Minneapolis, and appeal. Reversed, and new trial granted.

Syllabus by the Court

Both under the express and implied authority of its charter the city council of the city of Minneapolis may enact ordinances to secure unobstructed passage on its streets. The purpose of the ordinance here involved was to keep the streets open for public travel.

The ordinance, in providing that, when three or more persons stand together so as to obstruct free passage, a police officer may arrest if, after requesting the persons to move on, they neglect or refuse to do so, does not confer an arbitrary power upon the officer. The gravamen of the offense is obstructing free passage, and not disobeying an officer. When the obstruction exists, the officer must warn, and, if the obstruction still remains, he must arrest.

The evidence was sufficient to support a conviction under proper instructions.

Prejudicial error was committed in refusing to correct an omission in an instruction after attention was called thereto before the jury retired.

No reversible error was made in receiving or excluding evidence offered at the trial. John R. Coan and Mead & Bryngelson, all of Minneapolis, for appellants.

Daniel Fish and John T. O'Donnell, both of Minneapolis, for respondent.

HOLT, J.

The defendants were convicted in the municipal court of the city of Minneapolis for a violation of this city ordinance:

‘Three or more persons shall not stand together or near each other in any street or on any footwalk or sidewalk in said city, so as to obstruct the free passage for foot passengers, and any person or persons so standing shall move on immediately after a request to do so made by the mayor, chief of police, or any police officer or watchman.’

The appeal questions (1) the validity of the ordinance, (2) the sufficiency of the evidence, and (3) certain rulings on the trial and instructions of the court to which appellants took exception.

The main attack is directed against the ordinance. It is contended that the city had no power to enact it; that the power conferred in the first part of section 5, c. 4, of the charter upon the city council to enact such ordinances ‘for the government and good order of the city * * * as it shall deem expedient’ is limited to the subjects enumerated in the 47 subdivisions thereof; and therefore, unless authority is found in one of those, none exists.

[1] Unquestionably, authority has been given villages of less than 3,000 inhabitants to adopt ordinances, under the general welfare clause, regulating the use of streets so as to secure free and safe travel thereon. Village of Fairmont v. Meyer, 83 Minn. 456, 86 N. W. 457, where, however, this clause was found not at the beginning of the section, but in one of the subdivisions (subdivision 28, § 1224, Gen. St. 1894). It would seem incredible that villages have been granted the power to regulate the use of their streets, and it has been withheld from the most populous city in the state. The regulation of traffic upon the crowded thoroughfares of a large city is so imperative that a court should hesitate to deny that this is among one of the police powers granted to the same. In State v. Larrabee, 104 Minn. 37, 115 N. W. 948, where an ordinance relating to the running of vehicles upon the streets was involved, the court and eminent counsel assumed its enactment authorized. It is true, the powers of municipalities are confined to those specifically conferred, and these are, generally speaking, not extended by construction; but certain matters are so intimately connected with the exercise of municipal government and control that we do not necessarily look for express legislative authority on the subject. It is implied. As to authority to enact the ordinance in question we assert that not only may express authority for its enactment be found in the charter, but, we believe, also implied.

The purpose of the ordinance must be kept in view. It is to secure to the public the use of the streets for unobstructed travel. Streets and highways are dedicated, secured and maintained primarily for public transit, and must be so preserved. All other uses thereof must be subordinated or yield to the right of free and unobstructed passage. This ordinance must be considered as in aid of this primary use of the streets, and not as a prohibition or regulation of assemblies therein, except as these interfere with public travel.

Express authority to enact this ordinance may be found in these provisions of the charter: Section 1, c. 1, gives the city ‘all the general powers possessed by municipal corporations at common law, and in addition thereto’ it shall possess all powers specifically granted; the government and good order clause in the beginning of section 5, c. 4, already referred to; and the power over public nuisances directly conferred after the 47 specifications mentioned. In State v. Merrill, 37 Me. 329, under the charter authority ‘to ordain and publish such acts, laws and regulations, not inconsistent with the Constitution and laws of this state as shall be needful to the good order’ of the city, it can, subject to these restrictions and certain statute regulations, says Howard, Justice, ‘establish all suitable ordinances for administering the government of the city, the preservation of the health of its inhabitants, and the convenient transaction of business, within its limits, and for the performance of the general duties required by law of municipal corporations.’

The foregoing may cover implied power, as well as does also the following from section 458, McQuillan, Municipal Ordinances:

‘It is undoubtedly true that the police power extends to all reasonable regulations relating to the keeping the sidewalks, streets and public ways free from obstructions and nuisances and to all proper restraining regulations relative to the use thereof.’

To the same purpose may be cited 3 Abbott, Municipal Corporations, §§ 865, 870; Tiedeman, Municipal Corporations, §§ 290, 300; Commonwealth v. Davis, 162 Mass. 510, 39 N. E. 113,26 L. R. A. 712, 44 Am. St. Rep. 389; also found in Davis v. Massachusetts, 167 U. S. 43, 17 Sup. Ct. 731, 42 L. Ed. 71; Barker v. Richardson, 19 Pa. St. 412; Love v. Phalen, 128 Mich. 545; and City of Chariton v. Simmons, 87 Iowa, 226, 54 N. W. 146. The clause ‘government and good order of the city,’ found in the first part of section 5, c. 4, should not be restricted to the subjects thereinafter specifically enumerated. There is no specific restriction, and the regulation of traffic on the congested streets of a large city is so bound up with the good order thereof that the authority, wherever found in the charter, should be held to grant the power so to do. The only decision opposed to this view is the City of Red Wing v. Chicago, M. & St. P. Ry. Co., 72 Minn. 240, 75 N. W. 223,71 Am. St. Rep. 482, of which mention will be made hereafter. It might also be said that the power given to prevent public nuisances, as above indicated, is sufficient authority for the enactment of the ordinance. Obstructions of public streets, whether by inanimate objects or by persons, would seem to come within the definition of a public nuisance, section 8759, Gen. St. 1913. Implied authority also exists, as appears from the foregoing authorities, under the necessities of the case. The city is specifically charted with the care and maintenance of the streets for public travel, and, as a necessary incident, it would seem, proper regulations are indispensable so that travel may not be impeded or obstructed. The power to make rules and enforce them is required both for the convenience of travel and the protection of the streets. Common observation of the conditions in the business centers of our large cities so clearly demonstrates this that nothing further need be said. We conclude that the city council had power to enact the ordinance, not only from the express grant in the charter, ‘but also as incidental and necessary to the proper enjoyment of such powers as are expressly conferred.’ City of St. Paul v. Traeger, 25 Minn. 248,33 Am. Rep. 462. No former decision of this court is to the contrary, save one. State v. Hammond, 40 Minn. 43, 41 N. W. 243, is not authority for the...