In re Stratham

In this proceeding it is duly shown that George U. Stratham is held in custody, pursuant to arrest and upon a complaint filed in the police court of the city of Los Angeles, charging him with the commission of a misdemeanor by willfully and unlawfully soliciting custom and patronage for the transportation of persons and baggage for hire in the Southern Pacific depot in said city and upon property used and occupied in conjunction with said depot, contrary to the provisions of an ordinance of the city.

The ordinance in question is No. 39551, new series, of the city of Los Angeles. This ordinance was passed by the city council on November 17, 1919, approved on the twenty-first day of November, 1919, and duly published on the twenty-fifth day of November, 1919. It was adopted as an emergency ordinance and as such, by its terms, became effective on the date of its publication, notwithstanding the referendum provisions of the city charter. The previous ordinances of the city upon the same subject had been expressly repealed by an ordinance approved on the twenty-third day of September, 1919, and from that time until the adoption of Ordinance No. 39551 there was no ordinance of the city in force regulating the solicitation of custom

On behalf of petitioner it is contended that at the time of the adoption of Ordinance No. 39551 there did not exist any urgency for the passage of the ordinance as an emergency ordinance, that it was not necessary for the immediate preservation of the public peace, health, and safety, that it was not, in fact, an emergency ordinance, and that, therefore, its operation was, by law, suspended for a period of thirty days from the date of publication thereof; also that Ordinance No. 39551 is void for the reason that a similar ordinance (No. 39385), adopted by the council, had been approved on the twenty-third day of September, 1919, and had been suspended by a referendum placed thereon by the voters of the city and had been thereafter repealed by the council, and that the subsequent Ordinance No. 39551 was enacted by the city council as an emergency ordinance in bad faith and with the intent to evade the effect of the referendum petition.

It is further claimed that said Ordinance No. 39551 is unconstitutional and discriminatory in that it- provides that it shall be unlawful for any person engaged in the described business to cause any vehicle owned or operated by him to remain upon any railroad depot grounds or premises in said city while awaiting employment, except such person have the written consent of the owners, etc., of such depot

[1] The legislative body, presumably upon a sufficient investigation and knowledge of the situation existing, has determined that facts existed constituting an emergency, such that the peace and safety of the community, and particularly the traveling public, required that appropriate legislation be immediately enacted. The facts recited in the ordinance are facts which reasonably might be held to constitute such emergency. This being so, the courts will not, in a proceeding like that now before this court, undertake to investigate the truth of the statement of facts as set forth in the ordinance and substitute their decision for that of the city council. [2] We are here concerned only with the jurisdiction of the police court, whose authority is challenged on the ground that the facts charged in the complaint against petitioner did not, at the time of their' occurrence, constitute a public offense. [3] While it has been held that the mere declaration of the council that the ordinance is [passed for the immediate preservation of the public health, peace, and safety is neither conclusive nor yet sufficient, it was further pointed out that “the nature of the ordinance itself will, in most instances, be determinative, and where a sudden emergency has arisen, a statement of the nature of the urgency finds proper place to support the declaration.” (In re Hoffman, 155 Cal. 114 , [ 132 Am. St. Rep. 75 , 99 Pac. 517 ].)

[4] It may be conceded that, ordinarily, when an ordinance which has been suspended by a referendum has been repealed by the council, the council cannot enact another ordinance in all essential features like the repealed ■ ordinance ; although, even then, if there is an emergency involving the immediate safety of the public welfare, and the coun

[5] We think that the terms of the ordinance do not create any unlawful discrimination between persons who have, and others who have not, written consent of the owners of depots and depot grounds, to maintain booths, or keep vehicles standing upon such depot property. In the case of In re Barmore, 174 Cal. 286 , [ 163 Pac. 50 ], the supreme court upheld the validity of an ordinance of the city of Los Angeles which wholly prohibited soliciting of patronage for transportation of passengers or goods in certain public places, including railroad stations. Having the power to prohibit, the city has equally power to regulate and restrict the conduct of such business when permitted. In so regulating traffic on such premises, it is only necessary that the prescribed rules and restrictions be reasonably adapted to promote the welfare of the traveling public. Now, it is common experience, and nothing is suggested to the contrary, that the convenience of passengers arriving at transportation stations is promoted, and their business facilitated, by having a single agency at hand to which they

The writ is discharged, and the said George U. Stratham is remanded to custody.

Shaw, J., and James, J., concurred.