Ex parte Taylor

California Supreme Court Dec 13, 1890 No. No. 20733Published

Before: Fox, McFarland

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Holding. The court held that the city ordinance prohibiting the obstruction of sidewalks was a valid exercise of municipal police power and not in conflict with state law, and further, that the conviction was independently sustainable under state statute.

Issues

Whether a municipal ordinance prohibiting the obstruction of streets and sidewalks is void as being in conflict with state general law.
Whether a municipal corporation has the authority under its charter to regulate and penalize the obstruction of public streets.

Disposition. remanded

Quotations verified verbatim against the opinion

“We are of the opinion that the city of San José had authority, under its charter, to pass the ordinance, that the same is not in conflict with the general law”

“The ordinance does not declare the obstruction of the street to be a nuisance or a misdemeanor, hut, proceeding upon the theory that the state law itself so declares and provides, it simply forbids the obstruction”

Synopsis

Municipal Ordinance — Regulation of Streets — Obstruction of Sidewalk— Constitutional Law. —An ordinance of the city of San José forbidding the obstruction of a sidewalk, and prescribing a penalty for refusal to remove the obstruction upon notice prescribed to be given by certain municipal authorities, such penalty being of the same character, though less in degree, as that prescribed by the general law, is valid, and not in conflict with the constitution or with the general law.

Id. —Legalization of Obstruction — Revocation of Authority — Public Offense. —Municipal corporation'may legalize a partial obstruction of street or sidewalk which would otherwise be a public nuisance; but when it changes its ordinance so as to revoke the authority, and declare the obstruction unlawful, the obstruction is no longer legal, and the continuation of it thereafter constitutes a public offense, for which the party persisting therein is amenable to law.

Id. — Habeas Corpus — Jurisdiction of Justice’s Court.—When the complaint for the violation of a municipal ordinance states facts which constitute a public offense, both under the ordinance and under the general statute, and both the offense and the penalty are within the jurisdiction of the justice’s court, and the judgment is not in excess of that authorized by the general statute, the prisoner committed for such offense cannot he discharged on habeas corpus, whether the ordinance is valid or not.

Prescription — Obstruction of Sidewalk.— No right can he acquired by prescription to maintain an obstruction to a sidewalk in a street of a town or city.

Opinion — Fox

Fox, J. The petitioner is convicted of a violation of an ordinance of the city of San José in relation to streets and sidewalks.

It is claimed that the ordinance is void, because in conflict with the constitution and with general law, by reason whereof the city council had no authority to pass the same.

The city of San José is a municipal corporation existing under a special charter passed before the adoption of the present constitution. By section 9 of that charter the council is authorized and empowered “to pass all necessary and proper laws; .... to lay out, alter, vacate, improve, cleanse, water, and repair streets and sidewalks; .... to define, prevent, and remove nuisances; .... to impose and appropriate fines, penalties, and forfeitures for any and all violations of city ordinances; and for a breach or violation of any city ordinance, may fix the penalty by fine or imprisonment,” etc. The ordinance referred to forbids the obstruction of the streets or sidewalks, and provides a penalty for the violation thereof. It is not contended that the act of the petitioner for which he was arrested and convicted was not a violation of the terms of the ordinance, or that the penalty imposed is in excess of or different from that authorized by the ordinance.

Reference is made in support of the petition to section 6, article 11,.of the constitution. This is the section' which provides that municipal corporations shall not be created by special laws, and that all charters heretofore granted shall "be controlled by general laws. Upon the faith of this provision, it is claimed that a municipal corporation has no authority to determine and declare what shall constitute a nuisance upon a public street, and to provide for the punishment of one who maintains such a nuisance, because the general law has provided for the same. In support of that proposition we are cited to sections 370 and 372 of the Penal Code, and section [933479] of the Civil Code. Section 370 of the Penal Code and section 3479 of the Civil Code declare the obstruction of any public park, square, street, or highway a public nuisance; and section 372 of the Penal Code provides that one who maintains a public nuisance, or willfully omits to perform any legal duty relating to the removal of a public nuisance, is guilty of a misdemeanor, when the punishment for the offense is not otherwise prescribed. Punishment therefor is not otherwise prescribed in that chapter of the general law, but section 19 of the Penal Code declares that “ except in cases where a different punishment is prescribed by this code, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by a fine not exceeding five hundred dollars, or both.” It thus appears that, under the general law, the obstruction of a street or highway is a nuisance; that a person maintaining a nuisance in the street is guilty of a misdemeanor, and is, upon conviction, punishable therefor as prescribed in said section 19. Is the ordinance in conflict with this general law ?

Ex parte Taylor

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Synopsis

Opinion — Fox

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Concurrence — McFarland

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