The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1895-01-07
NO DRUMS THERE.
SalVatiOnists Silenced in
RedIandS.
Justice Harrison Dissents From the
Opinion of His Learned Brothr en-
on the Bench.

The Salvation Army received a body
blow from the State Supreme Court yester-
day. The case decided was that of John
II. Flaherty, an army drummer, who, some
time ago, came in conflict with the author
tiles of the city of Redlands by violating an
ordinance prohibiting the beating of
drums in The streets. The decision was in
favor of the town. but dissenting opinions
were given by Justices Harrison, De Haven
and Fitzgerald.
Flaherty was convicted Of beating his
drum without permission on the Travelled
streets. It was shown that he had applied
for permission, which had been refused by
the president of the Board of Trustees.
Flaherty's attorneys concluded that the
ordinance was unconstitutional because it
gave too much power to the president Of
the board, and was in violation of the or
ganic law against abrIdging the privileges
of citizens by deprivng them of their
rights without due process of law.
The decision of majority of the JUS
tees was that 'the continuous or daily
beating of drums on the streets of q city
would be an intolerable nuisance. endan-
gering the safely of teams and the occu-
pants of vehicles drawn by animals, as
| we'll as OF pedestrians liable to be injured
by runawavs, and stunning the ears with a
din so constant as to be almost insupporta-
BILE.
ut would be IMPOSSIBLE" the Court
held, ito provide specifically by law the
days on which drum-beating would be
lawful, hence the necessity of giving to a
public officer some discretion in the prem
ises, and hence laws and ordinances based
on that principle have nearly always been
upheld when subjected to legal test. It
is i'm possibe to state the terms and iimita-
tions of what is known as police powers
and courts have not attempted to do it.,
but we find that statutes and ordinances
| similar in character to the one in question
| in the case at bar have been sustained In
| most of the cases to which our attention
has been called.
"The ordinance involved in the case at
bar" the court held. in conclusion, "does
not interfere with parades or travel, but
seeks to promote the comfort, convenience
and safety of travellers by preventing that
which makes travel uncomfortable and
dangerous 1t prohibits no business
which every one has right to pursue"
Justice Harrison, in his dissenting
opinion, said: IF the act complained of
| is lawful and proper in itself and improper
| only as it may effect the public. the power
of the municipality Is limited to regula-
| ton of its exercise and such regulation
| must be indicated by fixed and definite
rules and cannot be LETT to the arbitra-
ment of another officer"
The Justice concludes his opinion as
follows: SIN country under the govern
| ment of laws tho conduct of the citizens
cannot be subjected to the arbitrary will
of any individual. The mildest despotism
has no place in constitutional govern
ment. Beating drum is not nuisance,
or in violation of the rights OF others, and
! it oes not of necessity interfere with the
use of the public streets.
1.-THE authority of the Trustees to regu-
| late the use of the streets or the beating of
drums thereon is not denied, but the regu-
lation must be made by the city, and can
not be delegated by 1t to the president of
| the Board Of Trustees. The ordinance is
invalid, and the prisoner should be dis
| charpad ~