"ORDINANCE No. 91.-To prohibit noisy amusements and to prevent immorality. Passed May 11, 1868. "The Board of Trustees of the City of Sacramento ordain as follows: "SECTION 1. It shall be unlawful within the city, in the night time, after twelve o'clock midnight, for any person to play or make a noise upon any musical instrument in any drinking saloon, or beer cellar, or to permit or allow the same by the proprietor, agent, or manager thereof. "SEC. 2. It shall be unlawful for any female person, in the night time, after twelve o'clock midnight, to be in any public drinking saloon, beer cellar, or billiard room, within said city, where vinous, malt, or spirituous liquors are sold or given away, to be drank on the premises." Under this ordinance Nellie Smith and Annie Keating were convicted. They sued out a writ of habeas corpus, returnable before Justice Sanderson of the Supreme Court, and upon the return of the writ it was in their behalf contended that the ordinance was repugnant to the first section of the first Article of the State Constitution. Mr. Justice Sanderson upon this point, Chief Justice Sprague and Justice Sawyer approving, said (38 Cal., p. 704): "Governments are formed for the purpose of secur ing and protecting men in the enjoyment of their natural rights, and they would fail of accomplishing that object if the power to regulate or prescribe the mode in which such rights are to be exercised be not lodged in the law making department. In short, there could be no government without such power, for without it all men would be in a state of nature-that is to say, without any restraint upon their conduct except their own wills and the forcible opposition of their fellows. Hence, when men who come together for the purpose of adopting a form of government and establishing a system of laws stipulate that the rights of life, liberty, property, and the pursuit of safety and happiness are inalienable, or shall remain inviolate forever, they are not to be understood as meaning that those rights shall not be at all interfered with by the law-making power. On the contrary, their language is to be interpreted in view of the object which has called it forth, or as meaning that those rights are not to be interfered with, except so far as the ends and objects of government may require. This section is not to be read by itself, but as a part only of the Constitu tion; and thus read, the obvious import of the whole is, that in order that these rights may be made secure, and that we may be protected in their enjoyment, we agree that the Government about to be established may pass all needful or reasonable rules and regulations for their security and enjoyment, without any power, however, to destroy or unnecessarily restrict or impair their reasonable exercise. Hence, this provision of the Constitution is not to be understood as putting life or liberty entirely beyond the reach of the Government if, from misconduct, the general welfare of the community demands its sacrifice or restraint; or as allowing every one to acquire, possess, and enjoy property after his own unregulated manner and according to his uncontrolled will, but in such a manner and by such means as the general welfare of the community may require him to observe; or as allowing every one to seek safety and happiness in his own way, or according to his own notion, but by such ways and methods as the general good may demand. In short, while the exercise of these rights cannot be denied to any one, it may be regulated. The Constitution recognizes them as inalienable, and provides that they shall remain inviolate, but, at the same time declares that they must be exercised according to the maxim, sic utere tuo, ut alienum non laedas, which lies at the foundation of the social compact. While every man is free and independent, and may enjoy and defend life and liberty, still he must do so in a way which does not interfere with the same right in other persons; while he may acquire, possess, and protect property, he must do so in a way and by means which will not prevent others from doing the like; while he may pursue and obtain safety and happiness, he cannot be allowed to do so in a manner which may endanger or unreasonably impair the safety and happiness of others; or, generally, while every one is to be secure in the exercise and enjoyment of all these rights, he may be restrained or prohibited from exercising them in any manner which will interfere with a reasonable exercise of the same rights by other persons. Hence it is, that the Legislature is not only allowed, but required, among other things, to pass laws for the protection of life, liberty, property, and the pursuit of safety and happiness. Hence come all our laws against what are called crimes: crimes against the Government and people-as treason; against the persons of individuals—as murder and manslaughter; against property-as larceny, robbery and arson; against public justice-as perjury and bribery; against the public peace and tranquility-as routs and riots; against public morality, health and police-as bigamy, incest, prostitution, and public nuisances. There cannot be legislation upon these topics, or any of them, without interfering, in a certain sense, and to a certain extent, with the natural rights of persons; but so long us such legislation is reasonable and necessary to accomplish any of the ends of the social compact, it cannot be considered as repugnant to the Constitution. Instead of being repugnant, such legislation is indispensable to the preservation and inviolability of the very rights in question. Every act which may tend to impair their exercise beyond what is needful for the general good may be prohibited. Of these, there are some which, by the common consent of mankind, are bad and mischievous in themselves-the mala in se of the common law-and others which may become so under certain relations and conditions, and which, therefore, the Legislature may prohibit, as necessity or occasion may require the mala prohibita of statute law. It is not to be supposed that the entire field of public offense has yet been covered by apt legislation. Vice is ingenious, and disguises itself in a variety of forms, for the purpose of evading existing laws. Things once regarded as harmless become vicious when contemplated from the level of a higher civilization, and legislation, if not in advance, must keep even pace with public sentiment, and to that end the requisite power is not denied to the Legislature. "It not being then, the purpose of the Constitution to inhibit all legislation affecting the natural rights of persons, but only such as may tend to their destruction or unreasonable restraint, the next question is, as to who is to be the judge of the necessity or reasonableness of prohibitory laws. Primarily, it lies with the people, when they adopt their Constitution, or establish their form of government. They may then establish such rules as they think proper; but, this being done, the residue of the power must be lodged in the law-making department of the Government. The power to determine what is necessary and appropriate legislation to accomplish the ends of government must necessarily be lodged in some body or department, and, by the same necessity, that body must be the Legislature, or the law-making power, subject to such restraints as may be imposed, as in the veto of the Executive, and the power of the Judiciary to annul, by its judgment, such laws as it may deem repugnant to the Constitution. If the Legislature abuses this power-the power to make laws, and to judge of their necessity and reasonableness-the remedy lies, under our form of government, with the people, through the ballot box; and, if that proves ineffectual, a further remedy lies in revolution, or the right which the people have to change their form of government whenever it becomes oppressive, or fails to afford that security for the rights of men which it was intended to provide. "In view of these fundamental principles, Legislatures have enacted a variety of laws which, undoubtedly, in a general sense, affect the right of life, liberty, property, safety, and happiness, by way of restraint. Of such are laws regulating the slaughter of animals, the interment of the dead, the erection of buildings in cities and towns of inflammable materials, the manufacture and keeping of gunpowder and other explosive compounds, the vending of poison and other noxious drugs, the sale of intoxicating beverages to certain classes of persons, as Indians, and even to all classes of persons-as in the case of the prohibitory liquor laws of Maine and Massachusetts. Not of the least importance among such laws are those which are designed to promote the public health, by creating Boards of Health, with extraordinary powers over persons and property; by establishing quarantine and taking other summary measures to prevent the spread of contagious diseases; also, laws designed to promote public peace and good order, and public decency and morality, particularly in cities and incorporated townssuch as laws against nuisances, noisy and barbarous amusements, indecent exposure of the person, and the keeping and frequenting houses of ill fame. Among the most notable of these prohibitory laws, and the one which goes, perhaps, to the extreme of legislative power in the direction under consideration, is that which prohibits the transaction of secular business on the Lord's day. The constitutionality of some of this legislation has been debated and doubted; but I believe the general opinion now is, that none of it is opposed, but, on the contrary, that all of it is not only consistent with, but essential to the most perfect enjoyment, in a constitutional sense, of the natural rights of persons. "The foregoing principles being elementary, I deem it unnecessary to dwell ionger upon their consideration, or to cite cases in their support. I have not referred to them because they are doubtful or debatable, but because the necessity has been forced upon me by the line of argument which has been adopted by counsel. "So far, then, as these cases turn upon the first point made by counsel, it only remains for me to examine this ordinance, so far as it affects the petitioners, by the light of the foregoing principles, and declare whether it is repugnant to them, or, on the contrary, is a constitutional contribution to their support; and on that head, in view of what has already been said, but little remains to be added." govern SEC. 2. All political power is inherent in the people. Popular Government is instituted for the protection, security, and ment. benefit of the people, and they have the right to alter or reform the same whenever the public good may require it. NOTE. Every law must have a uniform operation upon all citizens, persons, or things of any class upon which it purports to take effect. It must not grant to any citizen or class of citizens privileges which upon the same terms shall not equally belong to all citizens. Brooks vs. Hyde, 37 Cal., p. 366. In commenting upon this section Justice Sanderson, in Ex Parte Smith & Keating (38 Cal., p. 710), says: All "The best commentary upon the construction and 48-VOL. II.-POL. |