Walsh v. City of Union

• Citation: 11 P. 312,13 Or. 589
• Parties: WALSH v. CITY OF UNION.
• Decision Date: 24 June 1886
• Court: Oregon Supreme Court

11 P. 312

13 Or. 589

WALSH v. CITY OF UNION.

Supreme Court of Oregon

June 24, 1886

R. Eakin, for appellant, City of Union.

Wm. M. Ramsay and J.W. Shelton, for respondent, Walsh.

LORD, J.

We think the ordinance was ultra vires. Under the charter the city was empowered and authorized to pass an ordinance to punish any person or persons who should create any "noise or disturbance" in any street in the city, etc.; and under an ordinance enacted in pursuance of such power to punish those who should create any disturbance in the streets of the city, etc., it is not doubted but what the conduct alleged in the complaint would be an offense punishable under it. No provision of the charter has been referred to which authorizes the defendant to take jurisdiction and punish for the crime of an assault with a dangerous weapon, and, in the absence of such provision, we do not think the power can be derived expressly or impliedly from the power "to prevent and restrain disturbances." The defendant has a right to pass an ordinance to prevent disturbance, and to punish for conduct which creates such disturbance. Nor is this objection made upon the ground that an offense committed against two jurisdictions cannot be punished by each of them. It is based on the ground that the city has no power to pass such an ordinance, and it is therefore void, and consequently the city recorder's court was without jurisdiction in the premises.

The judgment must be affirmed.