The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1899-12-12

the necessities and requirements of the
people have correspondingly increased,
and, therefore, the police power of the
State has necessarily grown in magni-
tude and scope. It is described by
Blackstone to mean 1.-The due regulation
and domestic order of the kingdom;
whereby the individuals of State, like
members of a. we'll governed family, are
are bound to conform their general be-
havior to the rules of propriety, good
neighborhood and good manners; and
to be descent, Industrious and inoffen-
sive in their respective stations"
OF the police power, Dillon on Mu-
nicipal Corporations, Section al, says:
ut may be observed that every citizen
holds his property subject to the
proper exercise of this power, either
by the State Legislature directly, or
by public or municipal corporations to
which the Legislature may delegate
it. Laws and ordinances relating to the
comfort, health, convenience, good order
and general welfare Of the inhabitants,
are comprehensively styled police laws
or regulations 1t is we'll settled that
laws and regulations of this character,
though they may disturb the enjoyment
of individual rights, are not unconsp
tutional, though no provision is made
for compensation for such disturbances.
They do not appropriate private prop
erty for public use, but simply regulate
| its use and enjoyment by the owner. II
the citizen suffers injury, it is either
Damnum absque injuria, or, in the
theory of the law, he is compensated for
| it by sharing in the general Dement'S
which the regulations are intended ana
| calculated to secure"
! There is essentially distinction be-
tween this power and that of the right
of eminent domain. 1t is not q taking
of private property for public use, but
a wholesome restraint upon an obnox-
ious use by the owner of his property,
contrary to the we'll known maxim that
every one should use his own prop
erty SO as not to injure that, or the
| health, peace and comfort of another.
| It is thus plain to be seen that the
State, through it's Legislature, or the
! governing body of municipality, 10
which power is delegated by the state,
has the undoubted right to interfere, by
appropriate legislation, with any cit1-
| zen who exercises his trade or profess
| sion in a manner offensive and obnox-
| ious to the health and good order OF
the community; and it cannot be ques-
toned but that the Board of Trustees,
or other legislative power of any mu-
nicipality may not only, for this pur-
| pose, regulate businesses in themselves
lawful, but may prohibit or suppress
or regulate many occupations which
are of themselves offensive to good
morals and in which there exists in the
citizen no inherent right to engage.
| But while this is true, such legislation
must conform to the modes of putting
the same into operation prescribed and
pointed out by the organic law Of the
Government; and any material depart
ure from such modes by the law-mak-
ing power, in an attempt to engraft
upon our statute books laws intended
| to accomplish the purpose here spoken
| Of, render such legislative Acts futile
and nugatory.
The first proposition submitted for So
| luton is whether or not the ordinance
| in question embraces two entirely diff
! ferent and distinct subjects of legisla-
| ton. A careful reading of the Ordi-
nance convince me that such is the fact.
If the language of the provisions of this
ordinance would authorize the prosecu-
ton. conviction and punishment Of one
and the same person for two different
! offenses it seems to me that the OBJ
! lection of counsel for the defendant,
that there are two different and dis
tinct subjects legislated upon in the or
| dinance, is tenable. In the first place,
the ordinance provides that any per-
son, who, upon any trial or contest of
SKILL speed or power of endurance be-
tween horses, shall sell any pool or
pools, or make any book thereon for
money or other articles Of value, is
guilty Of a misdemeanor for which, up
on conviction thereof, he shall be fined
not less than $50 nor more than 5000,
Or imprisoned in the city prison not
exceeding thirty days, or by both such
| fine and Imprisonment. In the second
place, the ordinance provides that any
person who shall knowingly lease or
rent, or allow to be occupied or used,
any building, structure, room, apart
ment, place or any premises whatever
for the purposes specified, mentioned
and prohibited in Section l of this
ordinance, shall also be guilty of mis-
demeanor. punishable, upon conviction,
as in the first instance mentioned. Now,
in the business of pool-selling and
book making in his own building. Is
there anything in the ordinance which
would prevent his prosecution, first for
selling pools and making books, and
then his prosecution for allowing his
building to be used for that purpose?
Are not the elements of the two effenses
essentially distinct and different? My
opinion is that they are. 1t has been
suggested, as an illustration in favor
of the contention of counsel for the
people, that robbery and grand larceny,
under the law, are two distinct offenses;
| yet, with a single exception or two, the
| elements of the two crimes are iden-
| teal. But court, in instructing jury
in case where a person was accused
Of the crime of robbery, and circum-
stances developed by the evidence justi-
fed it, could tell the jury that larceny
was included within robbery, and that
| it they found that neither force nor
fear was used, but that the defendant
did take property from the person of
the prosecutor, Notwithstanding the
| fact that the information charged rob-
| berry, the jury under the law would be
authorized in finding verdict of
guilty of grand larceny. Could it be
| seriously argued, in a case where
person was accused under Section ] of
| this ordinance, that the Judge could in
struct the jury that, if the facts should
show, instead of selling pools and
making books, the defendant allowed or
permitted his house to be used for that
/ 1,o