The daily intelligencer. [volume] (Seattle, Wash. Territory [i.e. Wash.]) 1876-1881, 1879-05-14

SouSio0aSA III CouuSCtIOu with Tue Ron.
erai laws Of the Territory defining
public nuissnces, aud such nuisances
are pointed out in section l3 of an act
defining nuisances, &c, enacted by the
Legislative Assembly of Washington
Territory in 1875. Under the language
of said section. as quoted, am OF the
opinion that the ordinance asked for in
ssid ministerial resolution cannot be
legally enacted.
There is another provision. however,
in said section 81 Of said city charter
which authorizes said city ito prevent
any riots, noise, disturbance or disor-
derby assemb.ages, and to
preserve peace and order therein" Can
the city, under the words in said section,
"preserve peace and order therein, I"
enact the ordinance requested Usder
the general law Of the Territory it is
no crime OF offense to carry on any
business on Sunday that might b car
Yied on on any other day in the week.
In most Of the city charters of the
States there is what 10 called 80 gen.
ersl welfare" clause, which provides
that the municipality may enact laws
and regulations not Inconsistent with
the laws OF the State under which they
are created. - shall he needful for the
good order and government of the city.
In States where Sunday laws 50 called
are in force, it has been held BY the
Courts that under such general welfare
clause the municipal governments might
authorize IN ordinance prohibiting the
kseping open Of stores and other places
Of bdsiness on Sunday. The only lam
guage In our charter that could be
construed into general welfare clause,
BY very liberal construction, are the
words quoted from section 81 "to pre-
serve peace and order therein" and the
words in section Is, "has power to
adopt proper ordinances for the gov
eminent OF the city" The law-nsking
power Of tho Territory has not expressly
granted to tho city government the
power to shy at what time or when any
legitimate business should be carried on
within the municipal limits. The same
power has also refrsined from passing
any law requiring any person to cease
from his usual svocation on Sunday.
The legislative power has seen fit. as' far
- the Territory ct large 10 concerned.
to leave the observance of Sunday to
the moral sense of the Inhabitants.
I therefore conclude that the power
conferred under the words I" to preserve
peace and order therein, " and the words
"to adopt proper ordinances for the
govsrnmsnt Of the city," 10 restricted
By reference 70 other provisions Of the
charter and the general laws and policy
Of the Territory ct large.
In 1877 the city charter WAS amended
20 ~ to authoriss the Council Ito
license. tax. regulate and restrAin
places where liquors were sold." but
BY said amendment the city was not
authorized TO grant such license prior
to January, 1880. In my opinion the
power "to regulate and restrain" a.
given in this section, was intended a.
an incident Of tho power to license
and tax" and therefore the Council
cannot exercise the power to regulate
and restrain" such places until after
January. 1880.
Hence it is my opinion that the City
Council has not the power to regulate
in any way the observance of Sunday
within tho city limits in the manner
asked for in said resolution, ,or in any
other manner than it 10 authorized to
regulate the conduct Of business on any
other day in the week under express
provisions OF the charter. / base this
opinion on the common sense rule. -
laid down by Judge Dillon, that ANY
fair. reasonable doubt concerning the
existence Of power 10 resolved by the
Courts against the corporation. and the
power II denied"
Respectfully.
w. Fl. WHITE,
Attorney for the City of Seattle.