Tinsley v. City of Richmond

• Decision Date: 24 April 1961
• Docket Number: No. 5232,5232
• Citation: 202 Va. 707,119 S.E.2d 488
• Court: Virginia Supreme Court
• Parties: RUTH E. TINSLEY v. CITY OF RICHMOND. Record

Page 488

119 S.E.2d 488

202 Va. 707

RUTH E. TINSLEY v. CITY OF RICHMOND.

Record No. 5232.

Supreme Court of Appeals of Virginia

April 24, 1961.

Martin A. Martin, for the plaintiff in error.

James A. Eichner, Assistant City Attorney (J. E. Drinard, City Attorney, on brief), for the defendant in error.

JUDGE: CARRICO

CARRICO, J., delivered the opinion of the court.

Ruth E. Tinsley was arrested on a warrant which contained the charge that she did on the 23rd day of February, 1960, 'unlawfully refuse to move on when told to do so by Police Officer D. L. Nuckols in violation of Section 24-17 of the City Code.' Richmond City Code, 1957, Section 24-17. Upon her trial in the court below, without a jury, she was found guilty and her punishment was fixed at a fine of $10.00. She sought, and was granted, a writ of error to the judgment of conviction.

The defendant has assigned a number of errors which attack the constitutionality and validity of the ordinance under which she was arrested, tried and convicted. She also contends that the evidence presented against her was insufficient to sustain her conviction.

The material facts in the case are not in dispute.

On February 23rd, 1960, Thalhimer's Department Store, located in a block bounded by Sixth, Seventh, Broad and Grace Streets, in the City of Richmond, was being picketed by large numbers of persons who were carrying placards, and who were circling the store on the sidewalks adjacent thereto. In addition to the pickets, large crowds were on the sidewalks. Demonstrations of a similar nature had taken place previously in the same area, and some students taking part in the demonstrations had been arrested.

A number of police officers, some in uniform, and some not, had been assigned to the area. They had been instructed by their superiors to keep everyone moving on the sidewalks, and in compliance with these orders the pickets, onlookers, and even the police officers not in uniform, were directed to keep moving. Two of the officers, Lt. L. H. Griffin and Patrolman D. L. Nuckols, testified that these actions were taken to keep the sidewalk open for pedestrian traffic and to avoid disorder.

Persons waiting for buses at a bus stop were required to move to a position, in line, near the curb.

A newsboy, selling newspapers on a corner of the block, was required by the police officers to move on, but was later permitted to return when the newspaper company by whom he was employed intervened with the police in his behalf.

Defendant, on this date, was on her way to Thalhimer's to pay a bill she owed there, and then planned to wait outside the store to meet a friend. As she neared the store, someone gave her a handbill which contained an admonition against dealing at. Thalhimer's, so she decided not to go into the store to pay her bill, but instead to wait for her friend outside the store building, at the corner of Sixth and Broad Streets.

Defendant saw the pickets and the large crowds of people on the sidewalks.

She was standing against the window of the store when Officer Nuckols, in full uniform, approached her and asked her to move on. She asked him why she had to move. Again the officer asked her to move. She then pointed out to him some other people who were not moving and again asked him why she had to move. The officer said he hadn't yet gotten to the other people and then ordered her to move. She refused, and the officer arrested her on the charge set forth in the warrant.

The ordinance in question, Section 24-17 of the Code of the City of Richmond, is as follows:

'Any person loitering or standing on the street, sidewalk or curb, shall move on or separate when required to do so by any member of the Police Bureau and shall cease to occupy such position on the street, sidewalk or curb.'

Defendant contends that the ordinance is unconstitutional in that:

1. It is an unlawful delegation of legislative power, because it fails to prescribe standards to guide the conduct of the members of the Police Bureau.

2. It is vague and ambiguous.

These two contentions will be dealt with together, since the arguments advanced by defendant in support of her first contention would, if valid, apply to her second contention, and vice versa.

We recognize the constitutional prohibition that ordinarily, in a statute or ordinance, a legislative body cannot delegate to administrative officers an exercise of discretionary power, without providing a uniform rule of action to guide such officers. We have, however, also recognized a well established exception to this rule. This exception applies in instances where it is difficult or impracticable to lay down a definite or comprehensive rule, or where the discretion relates to the administration of a police regulation and is essential to the public morals, health, safety and welfare.

It is our opinion that in the enactment of the ordinance, the city has validly exercised the powers given it under its charter, and has not unlawfully delegated its legislative power.

Section 2.04 of the charter grants to the City Council the power to adopt ordinances 'for the preservation of the safety, health, peace, good order, comfort, convenience, morals and welfare of its inhabitants,' and for the 'prevention of conduct in the streets dangerous to the public' (Acts of Assembly 1948, p. 183).

In the exercise of these powers the City Council adopted Section 24-17 of the City Code of 1957. It should be noted that the ordinance now in dispute was first adopted in 1909 and has been re-enacted in the various city codes since that time, pursuant to previously existing charter authority.

The ordinance in question is of a regulatory nature and is designed to preserve the safety, peace, good order and convenience of the inhabitants of the City, and to prevent conduct in the streets dangerous to the public.

In order to carry out the purposes for which such a regulatory ordinance is adopted, the legislative body may place in the hands of the officers responsible for its enforcement such discretion as is reasonable and proper to promote public peace and order. Moreover, it would be impossible, in such a case, to delineate in the ordinance itself, each circumstance which would be sufficient to warrant action by such officers. Under these conditions, the failure to set out a specific standard of conduct in the ordinance does not render the ordinance void.

This court has recognized this principle in the case of Taylor v. Smith, 140 Va. 217, 124 S.E. 259, where we said:

'We are of the opinion that a city may, in the execution of its police power, invest its administrative and executive officers with a reasonable discretion in the performance of duties devolved upon them to that end, whenever it is necessary for the safety and welfare of the public. Such a discretion is neither arbitrary nor capricious.' (140 Va., at pages 231, 232).

The court also quoted, with approval, the following from 12 A.L.R. 1435:

'It is also well settled that it is not always necessary that the statutes and ordinances prescribe a specific rule of action, but on the other hand, some situations require the vesting of some discretion in public officials, as for instance, where it is difficult or impracticable to lay down a definite, comprehensive rule, or the regulation relates to the administration of a police regulation and is necessary to protect the public morals, health, safety, and general welfare.'

We have previously upheld the validity of an ordinance similar to the one in question here, in the case of Benson v. City of Norfolk, 163 Va. 1037, 177 S.E. 222.

In the Benson case the City of Norfolk had, in 1907, in exercise of charter powers similar to those held by the City of Richmond, enacted the following ordinance:

'Sec. 483. Authority of police to require persons on street to move on.

'Any person or persons, vending or hawking goods, wares or merchandise, or loitering or standing on any of the streets or ways of the City, shall when required so to do by any member of the police force, move on, or any group of persons standing shall separate and move on, and cease to occupy such position on the street or way, under penalty of not less than three nor more than fifty dollars for each offense, and in addition, in the discretion of the Police Justice, may be confined in jail not exceeding thirty days.'

Benson assailed the constitutionality of the Norfolk ordinance on the grounds, among others not applicable here, that it constituted an unlawful delegation of legislative power in that it failed to lay down rules for the conduct of the police officers in enforcing the ordinance.

We said in the Benson case:

'The general power to regulate the use of the streets, and to do all things necessary or expedient for promoting the general welfare and peace of its inhabitants, and to make and enforce all ordinances would certainly seem to warrant the enactment of the ordinance in question. (163 Va., at page 1039).

. . .

'It is, in our opinion, most salutary that the police officers of a municipality should have reasonable authority and discretion. Indeed, in exigencies, it is vital to the welfare of the community.

'Courts should assume, initially, that they will exercise their discretion and authority in a fair and reasonable way.' (163 Va., at page 1040).

We re-adopt these views and hold them to be controlling in the case now before us.

Legislative enactments of a similar nature have come under review in the courts of other jurisdictions. While there is a division of authority on the question of the validity of such regulations (See 25 Am.Jur., Highways, Section 189, pp. 488, 489 and 65 ALR 2d, p. 1152) we adhere to our holding in Benson v. City of Norfolk, supra, that they are valid.

Typical of the cases approving such regulations is People v. Galpern, 259 N.Y....