Aug. 22, 1901. 



AMERICAN BEE JOURNAL 



535 



lielonging to another. Can tliere be any question but that this is talk- 

 ing propertj' withont due process of law? 



Secondly. — The ordinance is unconstitutional because it denies 

 the equal protection of the law, as guaranteed by the fourteenth 

 amendment of the United States Constitution. Upon this point, we 

 will call the attention of the Court to the case of Yh-k Wo v. /Ii>jil.iiix. 

 lis U. S. 3.56. In this case, the Board of Supervisors of the City and 

 County of San Francisco passed an ordinance which provided that it 

 should be unlawful for any person to establish, maintain or carry on 

 a laundry within the corporate limits of the City of San Franci.sco. 

 without first having obtained the consent of the Board of Supervisors, 

 except the same be located in a building constructed either of brick 

 or stone. It will be noticed that in the San Francisco ordinance the 

 consent of otlicials was required, while in the' ordinance which we are 

 discussing, only the consent of private individuals is required. An 

 ordinance which requires the consent of otlicials is certainly more 

 reasonable and proper than one which requires the consent of individ- 

 uals. Public otlicials are bound not only by the dictates of their 

 consciences, but also by the weight of their judicial oath, and are 

 responsible to the people for their actions; while private individuals 

 can act at their own sweet will. In spealiing of this ordinance passed 

 by the Board of Supervisors of San Francisco, the Supreme Court of 

 the United States says, during the progress of its opinion : " We are 

 not able to concur in that interpretation of the power conferred upon 

 the supervisors. There is nothing in the ordinances which points to 

 such a regulation of the business of keeping and conducting laun- 

 dries. They seem intended to confer, and actually do confer, not a 

 discretion to be exercised upon a consideration of the circumstances 

 of each case, but a naked and arbitrary power to give or withhold con- 

 sent, not only as to places, but as to persons. The power given to 

 them is not confided to their discretion in the legal sense of that 

 term, but is granted to their mere will. It is purely arbitrary and 

 acknowledges neither guidance nor restraint."" And, again: ''It 

 does not prescribe a rule and conditions, for the regulation of the use 

 of property for laundry purposes, to which all similarly situated may 

 conform. It allows without restriction the use for such purposes of 

 buildings of brick or stone; but as to wooden buildings constituting 

 nearly all those in previous use, it divides the owners or occupiers into 

 two classes, not having respect to their personal character and qualifi- 

 cations for the business, nor the situation and nature and adaptation 

 of the buildings themselves, but merely by an arbitrary line, on one 

 side of which are those who are permitted to pursue their industry by 

 the mere will and consent of the supervisors, and on the other those 

 from whom that consent is withheld, at their mere will and pleasure. 

 And both classes are alike only in this: that they are tenants at will, 

 under the supervisors, of their means of living." And, again : " For 

 the very idea that one man may be compelled to hold his life, or the 

 means of living, or any material right essential to the enjoyment of 

 life, at the mere will of another, seems to be intolerable in any coun- 

 try where freedom prevails, as being the essence of slavery itself." 

 And. again; "The same principle has been more freely extended to 

 the (|Uasi-legislative acts of inferior municipal bodies in respect to 

 which it is an ancient jurisdiction of judicial tribunals to pronounce 

 upon the reasonableness and conseciueut validity of their by-laws."" 

 And, again : "Though the law itself be fair on its face and impar- 

 tial in appearance, yet, if it is applied and administered by public 

 authority with an evil eye and an unequal hand, so as practically to 

 make unjust and illegal discriminations between persons in similar 

 circumstances, material to their rights, the denial of equal justice is 

 still within the prohibition of the Constitution." And, again : ■' The 

 discrimination is therefore illegal, and the public administration 

 which enforces it is a denial of the equal protection of the laws and 

 a violation of the fourteenth amendment of the Constitution. The 

 imprisonment of the petitioners is therefore illegal, and they must be 

 discharged." 



. No authority is needed except the case cited. A reading of the 

 complete opinion of the Supreme Court of the United States will 

 show that that high judicial authority condemned in the most severe 

 terms ordinances like the one which we are discussing, as being not 

 only not reasonable, but a denial of the equal protection of the law. 



THIKD. 



The ordinance is void, because it is not fair, impartial and reason- 

 able, but is oppressive. 



In JSeaeli on Public Corjioratiotu, Sec. 90, the author says: "A 

 city, although fully authorized to enact ordinances, can not pass 

 unreasonable ones. The ordinance of a city must be reasonable. It 

 must not be oppressive; it must not be partial or unfair." The same 



author says, at Section 512: "It is a well-settled principle that a 

 municipal law or ordinance must be reasonable." 



In Dillon on Municipal CoriMnitions, Sec. 319, the author says : 

 '' In this country, the courts have often affirmed that general inci- 

 dental power of municipal corporations to make ordinances, but have 

 always declared that ordinances passed in virtue of the implied power, 

 must be reasonable and consonant with the general powers and pur- 

 poses of the corporation, and not inccmsistent with the laws or policy 

 of the state."' 



In the ease of Yicic Wo v. Ifopkinx. supra, also held that munici- 

 pal corporations must be reasonable. 



Can it be said that the ordinance which we are discussing is rea- 

 sonable ? 



It does not provide that citizens living within one hundred feet 

 must give their permission to keep bees, but that the owners of lots 

 wherever they may live must give such permission. These owners 

 might live in New York, Buffalo, or in Europe, and have no personal 

 interest in the matter, and yet their permission is required. Again, 

 under this ordinance, permission might be obtained, and then, imme- 

 diately afterwards, the lots within one hundred feet of the place 

 where bees are to be kept might be sold, and permission would have to 

 be obtained of the new owners. 



Under this ordinance, a person who owns a lot in the outskirts of 

 the City, a mile from any dwelling, might not be permitted to keep 

 bees, while a person living in a thickly populated district can keep 

 bees, if he get the requisite permission. In other words, under this 

 ordinance, the owner of a lot in the center of a city or adjoining a 

 school-house, may be permitted to keep bees, while a person owning 

 a lot in the outskirts of the City would not be permitted to keep bees. 

 In fact many illustrations might be given, and will readily suggest 

 themselves to the mind of the Court, of the purely arbitrary character 

 of this ordinance and the unjust manner in which it may operate. 

 The private citizen, from "mere caprice or ill-temper or bad feeling 

 against the bee-owner may deprive him of the use of his property. 



In fact, the right depends wholly upon the personal inclinations 

 and caprice of adjoining lot owners. 



FOIRTH. 



The ordinance in question is an unlawful attempt to delegate the 

 powers conferred by law upon the Common Council to private indi- 

 viduals. 



Article Two, Section 12, of the City Charter, provides that the 

 Common Council " has authority to enact ordinances not inconsistent 

 with the Laws of the State, for the go\ernment of the City and the 

 management of its business, for the preservation of good order, peace 

 and good health, for the safety and welfare of its inhabitants and the 

 protection and security of their property."' 



This statute plainly contemplates that the discretion as to whether 

 a certain thing is or is not a nuisance must be vested in the Common 

 Council ; but in the ordinance in question, that body has not deter- 

 mined that bees are a nuisance, or that they should only be kept in 

 certain prescribed portions of the City, but the Common Council has 

 turned its powers and its discretions entirely over to private individu- 

 als. That the Conmion Council has not passed upon the question as 

 to whether or not bees shall be kept, is illustrated by the fact that 

 with the requisite permission of adjoining lot owners, bees can be 

 kept in every lot in the City of Rochester. There is an ordinance in 

 force which provides against intoxication in public places; but sup- 

 pose an ordinance should be passed which would provide that a per- 

 son might be intoxicated in a public place, provided he could get the 

 written permission of every person owning property within a certain 

 distance of the place where he desired to get drunk— could such an 

 ordinance be supported in the Courts' And yet, such an ordinance 

 would be precisely like the one in question. 



In JSirdsiill c. Clark. 73 N. Y. 73. the Court holds that public 

 powers of trusts devolved by law or charter upon the Common Coun- 

 cil or governing body of a municipal lorporation, to be exercised by 

 or when and in such manner as it shall judge best, can not be dele- 

 gated by such body to others. 



The ordinance is not a determination by the Common Council that 

 the preservation of good order, peace and health, the safety and wel- 

 fare of the inhabitants of the city, and the protection and security of 

 their property demands that bees shall not be kept; but the ordinance 

 leaves such questions entirely to the determination of private individ- 

 uals. Under the ordinance, there is absolutely no restriction to the 

 keeping of bees in any part of the city, providing the bee-owner can 

 j obtain the consent of his adjacent lot owners. There can be no ques" 



