Evening journal., 1913-09-24
Guilty, But Judge Won't Fine For
Paving Law Violation; Penalty Excessive

ment full power and authority TO
compel the paving and repairing of
footways, and to regulate and pre-
scribe the code OF paving (or repair
ingl footways and the material to be
used therein Il will be seen that no
power is granted by the statute TO en-
force any resolution OF that Depart
mont regulating the mode Of repair
ing of footways, by fine or imprison-
ment or both.
'Thc general doctrine. however. is
that municipal corporation which
mas the power 10 pass an ordinance,
has, as a necessary incident thereto,
implied power to provide for It's en-
forcement by appropriate and reason
able fines against those who offend Il.
Is the fine provided In the resolu-
tion reasonable?
"McQuillin. on Municipal Corpora
tions, Vol 2, Sec 720) lays down the
rule. which is supported by an abund-
ance Of authority, as follows;
There must be a Limitation in
the amount OF the penalty. This
may be provided either in the
state statute or the charter au-
thorizing the ordinance, OF II may
be in the ordinance itself aud IL
in the latter. the courts may de-
termine whether the amount so
fixed is reasonable. The term
reasonable. as used here, means
what is reasonable under the cir
cumstances. taking into account
the character of the offense.
What would be a reasonable pen
atty cannot from the nature of
things admit OF general rule ap-
plicable to all cases. but must in
every case be determined by the
nature of the offense intended TO
be prohibited.
There does not seem to be limit
to the amount Of this penalty. lt
might reach $500 or It might reach
! 81 900. II a man repairing had laid
500 square yards OF pavement Or
/ 900 square yards of pavement. Nor
does the penalty Of one dollar per
square yard seem reasonable under
the circumstances. taking into ac-
count the character Of the offence
This offcnse is not in the law
conadered as very serious OIL
fence, on the contrary il is regarded
as a minor offense. such an offensC
as Is called light, or unimportant 0l
trivial offense.
THE method by which the amount
of the fine is to be ascertaincd is ais,
objectionable II Is not al all cleai
to my mind. that one man should
be fined S1l and another man Sl2'
for exactly the same offence. mcrcl,
because the latter does more worl
than the former The offences are
the same. and I fail TO see how thl
offences can be considered greater
in the one case than In the other
Just the reason why the penalty fo
the offenEe must be ascertained b.
the square yard and lineal foot OF th
offense I cannot see. II rs cXtraor
binary. novel and startling to sa.
and prescribe that person us
be fined according TO the squar
yard or the lineal foot OF his offcnst
"The constitution of this sta q
the Bill Of Rights Cart. j, Sec. II
provides as follows:
! Excessive bail shall not be re-
Quired, nor excessive fines i'm
posed. nor cruel punishmonts in-
, hicted.
Everything in the Bill Of. RICH
q, is reserved out Of the general pOH
= ers of the Government. therefore.
4. must follow that neither the legisl
T. tive or judicial branch Of the Cover
/ ment violate this section.
n Is the fine prescribed In this res
% luton excessive
81 find the general doctrine 10
y that courts will not interfere wit
o the legislative discretion unless q
fine is fagranily disproportioned
> the offense. such, IL imposed, as wou
o shock the sense Of mankind
u am clear that this is such a I'm
for in the hearing OF the cases wh'
y the fine reached in one Of tho cas-
the sum of s125. I was very mu'
= shocked to think that I was asked
I. impose such a fine upon man 4
a the mere failure TO take out a pc
nit to do work.
For the reasons given above 7 a
clearly Of the opinion that the res
luton above quoted is invalid so I
as Section thereof Is concerned.
"The three defendants Brady. NJ
Closkey and Connolly must be a
judged guilty. and the penalty in
OF the cases will not be imposed
the reason that the fine is unreaso
,bIo and cxraoafvo