534 



AMERICAN BEE ICuRNAL 



Aug. 22, 1901. 



piece of carpet to disguise it. I am not now certain that 

 this triple-advice was given by the same author, but I am 

 sure that I used it next day in that combination, and with 

 satisfactory results. 



"The straw recipe I used next day on those of the 

 hives that were not badly afflicted, and it worked splen- 

 didly. I liked it especially because it called for no lifting 

 or carrying of the heavy hive. I have often tried that 

 since, and always with success. 



"But the cellar recipe took the cake, of course — that 

 is, as far as effectiveness went. It suited me too, because I 

 wanted to test all these methods, and because I had a cel- 

 lar : and also because it happens to be handy for emergen- 

 cies caused by bee-fracases, as you probably remember, 

 Mr. Bond. 



(To be continued.) 



The People of Rochester, IN. Y., vs. The Bees. 



On page 483 we published a statement from General 

 Manager Secor concerning the lawsuit between the city of 

 Rochester, N. Y., and Mr. W. R. Taunton, a bee-keeper 

 residing there. The National Bee Keepers' Association 

 helped defend Mr. Taunton, and of course won as usual. 



Mr. Secor has forwarded the following copy of the 

 brief submitted by Attorney Frederick L. Dutcher, counsel 

 for the defendant : 



POLICE COURT, CITY OF ROCHESTER, N. Y. i 

 The People, fs. Taunton. i 



Memorandum for Defendant. 



The defendant was arrested upon a warrant based upon an ordi- 

 nance passed by the Common Council of the City of Rochester on 

 April last, which provides in substance that no bees shall be kept or 

 maintained within tjie limits of the City of Rochester, wiihont the per- 

 mission in writinr/ of tlie lot owners oindutj lots within one hundred feet of 

 the hives within which any bees ore desired to be kept ur maintained. 



At the trial, the defendant moved that the warrant be dismissed 

 and the defendant discharged, upon the grounds: 



First. — That the ordinance upon which the warrant is based and 

 which defendant is accused of violating, is uncotistltutioiml and void. 



Secondly.— That the ordinance in question is not fair, impartial 

 and reasonalile, but is uppressim. 



Thirdly.— That the ordinance in question is an nnlamfnl attempt on 

 the part of the Common fonnril to delegate its powers to private individu- 

 als. 



Upon this motion, the defendant will not discuss the question 

 whether the Common Council has pfiwer to ]irohibit the keeping of 

 bees, as that question does not arise under this ordinance. 



In the first place, the question whether the ordinance is unconsti- 

 tutional, or whether it violates some other principle of law. is a ques- 

 tion of law for the Court, and must be decided irrespective of the 

 facts in any particular case. 



In People ex rel. Kemmler v. Durston, 119 N. Y.. at page 578, the 

 Court says: " If it can not be made to appear that a law is in con- 

 flict with the Constitution, by argument deduced from the language 

 of the law itself or from matters of which a court can take judicial 

 notice, then the act must stand. The testimony of expert or other 

 witnesses is not admissible to show that in carrying out a law enacted 

 by the legislature, son)e provision of the constitution may possibly he 

 violated." 



In the Matter of Elevated Jiailroad, 70 N. Y'., at page 8^7, the 

 Court holds that a Court can not take proof of facts for the purpose 

 of showing a statute valid and regular upon its face to be unconstitu- 

 tional. 



So that the question whether the ordinance is fair, impartial and 

 reasonable must be determined from the ordinance itself. 



In Jieaeh on J'uhlic Corporations, Sec. 512, the learned author 

 says: " It is a well-settled principle that a municipal by-law or ordi- 

 nance must be reasonable. The Courts will decline to enforce it, it 

 will be declared void as a matter of law." 



And again at Section 514, the same author says: "It is. of 

 course, a question of law and not of fact for the Court, and not for 

 the jury, whether any specific ordinance is so unreasonable as to be 

 void." 



The ordinance is passed under the so-called police powers of the 

 City, but the police powers of the City are not above the Constitution 

 and are subject to the control of the Courts. 



In J{e Jacobs, 9« N. Y'. 98, at page HO. the Court says: "These 

 citations are sutlicient to show that the police power is not without 

 limitations, and that in its exercise the legislature must respect the 

 great fundamental rights guaranteed by the Constitution. If this 

 were otherwise, the power of the legislature would be practically 

 without limitation. In the assumed exercise of the police power in 

 the interest of the health, the welfare or the safety of the public, 

 every right of the citizen might be invaded and every constitutional 

 barrier swept away. Under the mere guise of police regulations, per- 

 sonal rights and private property can not be arbitrarily invaded, and 

 the determination of the legislature is not final or conclusive. It 

 matters not that the legislature may, in the title to the act or in its 

 body, declare that it is intended for the improvement of the public 

 health. Such a declaration does not conclude the courts, and they 

 must yet determine the fact declared and enforce the supreme law." 



SECOND. 



The ordinance is unconstitutional for two reasons. First, it is an 

 attempt to take property without due process of law; and, secondly, 

 the ordinance denies the equal protection of the law, as guaranteed by 

 the fourteenth amendment to the United States Constitution. 



In stcieart v. Palmer, 74 N. Y'. 183, due process of law is defined 

 as follows: " Due process of law is not confined to judicial proceed- 

 ings, but extends to every case which may deprive a citizen of life, 

 liberty, or property, whether the proceeding be judicial, administra- 

 tive, or executive in its nature." 



In Pe Jacobs, supra, the facts were that the legislature passed a 

 statute prohibiting the making of cigars in tenement houses in New 

 York and Brooklyn. The Court of Appeals set the statute aside as 

 unconstitutional upon the ground that it was depriving persons of 

 propertj' without due process of law. The Court says, at page 104 ; 

 " What does this act attempt to do i In form, it makes it a crime for 

 a cigar-maker in New Y'ork and Brooklyn, the only cities in the State 

 having a population exceeding .500.000, to carry on a perfectly lawful 

 trade in his own home. Whether he owns the tenement house or has 

 hired a room therein for the purpose of prosecuting his trade, he can 

 not manufacture therein his own tobacco into cigars for his own use 

 or for sale, and he will become a criminal for doing that which is per- 

 fectly lawful outside of the two cities named — everywhere else, so far 

 as we are able to learn, in the whole world." 



In the case at bar, the ordinance makes it lawful to keep bees in 

 one part of the city, provided certain consents can be given ; but to 

 keep the bees in another part of the city would be unlawful if the 

 consents were not obtained. 



The Court further says in the case cited, at page 105: "The con- 

 stitutional guaranty that no person shall be deprived of his property 

 without due process of law, may be violated without the physicial 

 taking of property for public or private use. Property may be des- 

 troyed, or its value may be annihilated ; it is owned and kept for some 

 useful purpose, and it has no value unless it can be used. Its capa- 

 bility for enjoyment and adaptability to some use are essential charac- 

 teristics and attributes without which property can not be conceived; 

 and, hence, any law which destroys it or its value, or takes away any 

 of its essential attributes, deprives the owner of his property." 



In Butchers' Union Co. >: Crescent City Co., Ill U. S. 746, Judge 

 Field says: "The common businesses and callings of life, the ordi- 

 nary trades and pursuits, which are innocent in themselves, and have 

 been followed in all communities from time immemorial, must, there- 

 fore, be free in this country to all alike upon the same terms. The right 

 to pursue them without let or hindrance, except that which is applied 

 to all persons of the same age, sex and rundition, is a distinguishing 

 privilege of citizens of the United States, and an essential element of 

 that freedom which they claim as their birth-right." In the same 

 case. Judge Bradlej' says: " I hold that the liberty of pursuit, the 

 right to follow any of the ordinary callings of life, is one of the privi- 

 leges of a citizen of the United States, of which he can not be 

 deprived without invading his right to liberty within the meaning of 

 the constitution." 



In the case at bar. the ordinance attempts to deprive a person of 

 his property and prevent its use at the mere will of a private individ- 

 ual. The duly constituted authorities of the City do not act in the 

 matter at all, but turn over their powers to private citizens who are 

 taking the liberty at their own sweet will to destroy the property 



