
    The People ex rel. Maggie Cartmill et al., Relators, v. The City of Rochester, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed March, 1887.)
    
    1. Municipal Corporation—Ordinance—Charter of city of Rochester —Laws 1880, chap. 14, § 40—What is not violation of.
    The charter of the city of Rochester (Laws 1880, cha¡). 14, § 40) confers upon the common council the power to make such ordinances as it may deem desirable within said city for the following purposes, among others, viz.: Subdivision 1. To prevent vice and immorality; to preserve public peace and good order; to prevent and quell riots, disturbances and disorderly assemblages. Subdivision 16. To prevent disturbing noises in the streets. Subdivision 5. They are authorized to abate or remove nuisances of any kind. An ordinance of said city, passed under the authority of the provisions of the charter before recited, provides that no person shall make, aid, countenance or assist in making any noise, disturbance, or improper diversion in any of the streets, etc., of the city, and that no assemblage or crowd of persons shall collect in such streets, etc., to the annoyance or disturbance of any of the citizens or others, under a penalty of ten dollars for each offense. Held, That forming in procession and singing religious songs upon the streets was not a violation of the ordinance, there being no disturbance proved or any immoral or indecent demonstration.
    2. Same—Commission of the acts on Sunday does not create offense— Scope of ordinance.
    
      Held, That the fact that these acts were committed upon Sunday created no offense, as the ordinance had relation to all days of the week.
    3. Same—What matters irrelevant to question.
    
      Held, That the expediency or propriety of the methods of the association to which the parties committing such acts belonged was not pertinent on the inquiry as to the violation of the ordinance.
    4. Same—Judgment—When unauthorized.
    The charter provides that where by its provisions the common council have authority to pass ordinances on any subject, they may prescribe any penalty not exceeding $150 (except when a penalty is therein otherwise provided for) for a violation thereof, and may provide that the offender, on failing to pay the penalty recovered, shall be imprisoned as therein provided, which penalties may be sued for and recovered in the name of the city • The ordinance before referred to provides that every execution issued upon a judgment recovered for a violation thereof, except as therein otherwise provided, shall command the amount to be made of the property of the defendant, if any such can be found, and if not, then to commit the defendant for a period not exceeding a term therein prescribed. Held, That a judgment decreeing a penalty or imprisonment in the alternative, and not imposing as a condition of the latter that no property could be found, was unauthorized.
    5. Judgment of police court—Reviewable by certiorari—Code Civ. Pro., §2120.
    As no appeal from the judgment of the police court is provided by the statute, the proper remedy for a review of the determination is by certiorari. Code Civ. Pro., § 2120.
    Certiorari to review a judgment of the police court of the city of Rochester convicting the relators of a violation of an ordinance of said city relating to nuisances.
    
      W. Henry Davis, for relators; Joan Powers, city attorney, for resp’t.
   Smith, P. J.

The relators were convicted of violating a penal ordinance of the city of Rochester relating to nuisances, by creating a noise and disturbance upon a public street of said city. The ordinance under which the conviction was had provides that no person shall make, aid, countenance or assist in making any noise, disturbance or improper diversion in any of the streets, public squares, lanes, alleys or other public places in the city of Rochester; nor shall any assemblage or crowd of persons collect in such streets, public squares, lanes or alleys, or on any of the bridges, to the annoyance or disturbance of any of the citizens or others, under a penalty of ten dollars for each offense. The charter of the city (Laws 1880, chap. 14, § 40) confers upon the common council power to make such ordinances as it may deem desirable within said city, for the following purposes, among others, viz.: (Subd. 1.) “To prevent vice and immorality; to preserve public peace and good order; to prevent and quell riots, disturbances and disorderly assemblages.” (Subd. 16.) To regulate the ringing of bells and the crying of goods and other commodities for sale at auction, and otherwise, and to prevent disturbing noises in the streets; and subdivision 5 of said section gives authority to “abate or remove nuisances of any kind.”

The relators were members of what is known as the “ Salvation Army. ” On the occasion in question (a Sunday afternoon) seven of the members of that organization, including the relators, were walking in single file on the sidewalk, on North avenue, towards and near their barracks. Three of them were singing the words of what one of the witnesses termed a religious song, “We will Walk in the Light of God,” and one of them was carrying a small flag. Their object, as some of them testified, was to draw into their barracks those who were on the streets and in the saloons, in order to convert them and persuade them to leave their evil ways. While they were thus engaged, they were arrested by a person who was not shown to have held any official position that authorized him to make the arrest, and who admitted on the stand that he had no warrant. They were then taken before the police justice, by whom they were tried. Larragy, the person who arrested them, testified that they were “ acting in a disorderly manner,” but it is obvious from his testimony, that what he regarded as disorderly, was that which he characterized by the double appellation of “singing and hollowing” on the streets, he not stating that there was any hollowing other than the singing. He did testify that he heard one of them say we will fight, but which of them said it he did not state.

He also testified that there was “a crowd following them, any place from twenty-five to fifty, or one hundred or one hundred and fifty,” a statement in which he was not corroborated by any other witness, while several witnesses for the defense testified that there were very few persons on 'the street before the arrest was made. If there was a crowd, there is no evidence that it was disorderly, or that it disturbed any one. There was no proof that there was anything indecent, or immoral, in the appearance or conduct of the relators, or in the words which they sang, nor that any person was disturbed or annoyed by their singing, unless it was the one who arrested them. It was not shown or claimed that there was any collision, tumult, or disturbance of any kind before the arrest, except that one of the witnesses testified that the horse he was driving was disturbed by the flag, but to what extent, or how the disturbance was manifested by the animal, did not appear. It is apparent, therefore, from all the testimony, that the relators were simply marching upon the sidewalk, carrying a flag and singing, according to their custom, to induce those who happened to see or hear them, to follow them to their barracks. And the question is presented, whether such conduct amounted to a nuisance within the meaning of the ordinance and the provisions of the charter above referred to.

The provision of the ordinance that no person shall make any noise in the public streets is not to be construed literally. • It was not intended to wrap the streets of a commercial city in unbroken silence, or to suppress or diminish the roar of travel and traffic with which they almost incessantly resound. Nor was it intended to interfere with individual liberty of action, m any respect, except so far as may be necessary to preserve the public peace and order, and to prevent public annoyance or disturbance. If the ordinance in question goes beyond that limit, it exceeds the authority given by the charter to the common council. The provisions of the charter, in pursuance of which the ordinance was enacted, are designed to prevent public disorder and disturbance. The same clause which gives power to the common council “to prevent disturbing noises in the streets,” impliedly withholds the power to prevent “ the ringing of bells and the crying of goods for sale at auction,” in the streets, by giving authority merely to “regulate” them. Unless the practice is permitted, there is nothing to regulate.

A procession in a public street is not necessarily a nuisance. It can hardly be supposed that a political procession like those which frequently march through the streets of our cities and villages, with banners and bands of music, in a presidential campaign, is within the purview of the provisions referred to. So, of like military and civic demonstrations. But if such processions are lawful, wherein did the relators offend?

_ Had they stopped and gathered a crowd, blocking the sidewalk an unreasonable length of time, and impeding' the progress of passengers, doubtless their conduct would have amounted to a nuisance, at common law. Rex v. Carlile, 6 Carr & P., 636. Had they made any indecent or immoral demonstration, or used abusive or insulting-language towards others, or sought a quarrel with passers by, they might well have been held guilty of making a “disturbance or improper diversion,” in a public street. But as we understand the testimony, it does not appear that anything of that kind occurred. Their singing and display of the flag, were simply the means they ordinarily used to attract attention, and procure followers to their quarters, and we do not think the use of those means can be said, under the circumstances, to have amounted to a disturbance of the public peace, within the meaning of the ordinance and the charter. Like means used by showmen, exhibitors and vendors of wares under ordinary circumstances, to attract public attention, would hardly be regarded as infractions of the ordinance.

The fact that the occurence was on Sunday, we think, does not affect the question. > The ordinance is not a Sunday regulation. It applies to all days alike, as the conviction is under the ordinance alone. The only question is whether the acts of the relators, were a violation of the ordinance, without reference to the day of the week on which they occurred.

Nor, in our judgment, is it pertinent to inquire into the sentiments or purposes of the organization of which the relators are members, or the expediency or propriety of their practices, in a religious or moral point of view, so long as there is nothing in their conduct which is unlawful, or which threatens some tangible public or private mischief. At the same time, to use the words of a distinquished jurist: “We cannot accede to the suggestion that religious liberty includes the right „ to introduce and carry out every scheme or purpose which persons see fit to claim as part of their religious system. There is no legal authority to constrain belief, but no one can lawfully stretch his own liberty of action so as to enterfere with that of his neighbors, or violate peace and good order. The whole criminal law might be practically superseded, if under pretext of liberty of conscience, the commission of crime is made a religious dogma. It is a fundamental condition of all liberty, and necessary to civil society, that all men' must exercise their rights in harmony, and must yield to such restrictions as are necessary to produce that result. It is not competent to make any exceptions, either for or against the body of which the relators are members, because of its theories concerning practical work. In law it .has the same right, and is subject to the same restrictions in its public demonstrations as any secular body or society which uses similar means for drawing attention or creating interest.” Per Campbell, C. J., Mich. Sup. Ct.; In the Matter of Frazee, 6 West. Rep., 140.

In one respect, it seems to us, that the police court erred in a matter of procedure. The record states that the defendants were found guilty of a violation of the ordinance, and judgment was taken against them “for ten dollars or be imprisoned in the Monroe County Penitentiary for twenty days.” It further stated that “ judgment was suspended against Mrs. Grieve, and the other defendants were sent to said penitentiary.” It seems to us that the judgment, so far as it subjected the relators to imprisonment was unauthorized. Our views upon this point are advanced with some hesitation, as the point has not been argued or suggested by counsel, and it is possible, there is some provision in the charter or ordinance of the city authorizing the judgment in this form, to which our attention has not been directed. But the case appears to us to stand thus : The charter provides that where, by its provisions, the common council have authority to pass ordinances on any subject, they may prescribe any penalty not exceeding $150 (except when a penalty is therein otherwise provided for), for a violation thereof, and may provide that the offender, on failing to pay the penalty recovered, shall be imprisoned in the Monroe County Penitentiary, or county jail, for any term not exceeding 150 days, which penalties may be sued for and recovered, with costs, in the name of the city of Rochester. We are informed by the brief of the counsel for the respondent, that it is provided by the forty-second section of the ordinance under which the judgment was rendered, that every execution issued upon a judgment recovered for a violation of said ordinance, except as therein otherwise provided, shall command the amount to be made of the property of the defendant, if any such can be found, and if not, then to commit the defendant to the Monroe County Penitentiary for a period not exceeding twenty days.

We have not been referred to, and are not aware of, any other provision of the charter or of the ordinances bearing on the subject, with the exception of the first section of the same ordinance, which imposes a penalty of ten dollars for each violation of said ordinance therein described.

Under these provisions, the only judgment authorized was for the penalty. The execution issued on the judgment was require., to direct the imprisonment of the defendants^ but only upon the condition that no property of the defendants could be found out of which to make the amount of the judgment. The judgment did not even follow the direction respecting the form of the execution, for it adjudged the penalty of imprisonment in the alternative, and did not impose as a condition of the latter that no property could be found. And for aught that appears the defendants, except Mrs. Grieve, were sent to the penitentiary without any attempt having been made to find property.

As no appeal is provided by statute from a judgment of the police court, the proper remedy for a review of the determination of that court is by certiorari. Code of Civ. Pro., § 2120.

For the reasons above stated, the judgment should be reversed, with disbursements and fifty dollars costs to the relators.

Haight and Bradley, JJ., concur; Barker, J., not voting.  