The Saint Paul globe., 1897-04-28
he IS NOT FREE YET
SCAVENGEF MORIARITY'S WRIT OF
HABEAS CORPUS DISCHARGED
BY JUDGE LEWIS.
HEALTH OFFICERS POWER
ERS NOT DOUBTED BY THE
COURT.
Reference Is Made to That Cause
CeIebre in the Memorandum of
Judge Lewis.

Judge Lewis filed his decision yes
terday in the habeas corpus proceed
ings instituted by Michael J. Moriarity
to test the validity of the ordinance
which forbids licensed scavengers to
remove the contents Of vaults or cess
pools without first securing a permit
| from the commissioner Of health. The
ordinance is sustained, the writ Of
habeas corpus is discharged and Mr..
Moriarity is remanded to the custody
Of the bailiff Of the police court. The
decision which sets forth the facts is
as follows:
Michael j. Moriarity, the petitioner, is a
duly licensed scavenger and on March 8, 1897
was convicted in the municipal court OF remoV-
ing the contents of a cesspool without first
having obtained a permit so TO do from the
commissioner of health contrary to the form Of
ordinance No. 1885, which provides, among
other things, that mo unlicensed person"
ETC., shall, within the city Of St. Paul, re-
move. or cause to be removed, the contents Of
any. privy, vault cesspool sink or private
drain without a permit first obtained from the
commissioner of health, and having been COM
mitted under such conviction to the custody
of the respondent, Thomas Mcmahon, Peti-
toner Morarity sues out writ or habeas
corpus claiming his Imprisonment Illegal on
the ground that this ordinance is void, and
particularly the fourth paragraph thereof re-
ferred to above.
Petitioner urges that this section of the or
dinance is void because in effect it delegates
to the health commissioner power to license,
a power which the common council under the
charter cannot delegate; and further that IT
is unreasonable and void in that it prescribes
no rule by which its provisions may apply to
all alike, and permits of tho exercise OF an ar
bitrary discretion.
While in terms this section of the ordinance
is so broad as TO be open to the objections
urged in its application are limited to the
construction given it in the case of the city of
St. Paul VS.. Ransom NJ. Lawton, 81 Mimi, 537.
In the case cited the supreme court, for the
purposes Of a new trial, construed a provi-
sion Identical in terms with that now under
consideration, as vesting no arbitrary power
in the health commissioner, and say in effect
that a licensed person seeking to do scayen-
ger work must first obtain permit and that
the health officer has no arbitrary discretion
by which he can withhold the permit from
suitable person properly equipped to do the
work.
In our opinion the fourth paragraph Of this
ordinance is clearly void except in the light Of
such construction, and such construction re-
lieves the ordinance from the objections to
its validity.
into and placed upon paragraph by the su-
preme court we must adopt the Interpretation
in the case under consideration, and therefore
hold that the relator, Michael J. Moriarty,
a duly licensed scavenger, violated the provl-
sions Of this ordinance in having removed
the contents of a ceSspool without first obtain
ing permit to do the work. And we may
add that this construction Of the law leaves
the health commissioner discretion in
proper case where the work has been ordered
done except to issue permits without discrim-
ination to suitable persons properly equipped
to do the work
Therefore, it is hereby ordered that the writ
of habeaS corpus herein be and the same Is
hereby discharged and the relator be and is
hereby remanded to the custody of the re-
spondent to be dealt with as in said COM
mitment adjudged and according to law.