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Show LEGAL DEC1SIOX. Delivered by Chief Justice Titus, May, 1S6.5. APPEAL From the Probate Court or Great Salt Like County to the District Court of the Third Judicial District. Dis-trict. J. P. Tiernan, Appellant, ) vs. V Great Salt Lake City, Appellee. ) U. H. Hempstead and J. W. Stevens, Ste-vens, Esqr3., for Appellant : and A. Miner, Lsq., for Appellee. OPINION Or J. TITXS. JUDGE. This is an appeal from a judgment cf the Probate Court, of Great Salt Lake County, against the Appellant, for the sum of fifty dollars and costs. The case was originally a penal action, ac-tion, by Great Salt Lake City, before one of its Aldermen, for a fine incurred as alleged, by Dr. J. P. Tiernan, in practising medicine and surgery with-1 out a license, as required by an ordi nance of the said city. In the Probate Court, to which the case had been carried by appeal, the proceedings, though quite informal, were substantially a judgment overruling overru-ling the demurrer of the Appellant, "admitting the facts in the case and denying the law." The excentions of the Appellant to the judgment of the Probate Court; were three, and they were the same in ! every stage of the case. I Before noticing these exceptions 1 particularly, it 'may not be improper I to advert to two general propositions which they involve one that a Legislature Legis-lature never can delegate any of its powers ; the other, that if it could, a City would be an unfit recipient foi the powers thus delegated. In deciding the present case it is not at all necessary to affirm the former, for-mer, or deny the latter of these propositions. propo-sitions. To avoid misunderstanding, however, it may be affirmed that no legislative body known to us has confined con-fined the mere exercise of the law-making power exclusively to itself. Limiting the selection of examples upon the first of these propositions to our own country, we find Art. I. Sec. I. of the Constitution of the United States, that "All legislative power (therein) granted shall be vested in a Congress of the United States, which shall be composed of a Senate and House of Representatives" and Art. IV., Sec. III., clause 2, that "The Congress of the United States skull have power to dispose of an J make all needful rules and regulations, re.-pect- ing the territory or other property Oe-loiiging Oe-loiiging to the United States," &c. Congress, nevertheless, with its law-making power thus confined to itself, beginning at its first session in lTSU, has created thirty territorial governments, govern-ments, by which "All legislative power and authority" of such Territories, in relation to their own domestic aflairs, have been vested in the Territorial legislatures. True in most, perhaps in all, these cases, Congress has reserved to itself the power to revise and disapprove disap-prove the legislation of the Territories; but the instances have been few in which this, power of disapproval has been exercised by that body. More than twenty of these Territories have become States some of them of great wealth and population ; and the almost al-most uniformly judicious exercise of the powers thus conferred, attests the wisdom of these grants. There were in 1800 more than two thousand divisions of the States of the Union, such as counties, districts and parishes. All the constitutions vest the law-making powers of the States in their legislatures. Nevertheless, these primary divisions of the States lmvp with few or no exceptions more or less of legislative power, which tliey freely exeve'i.-e over their own peculiar local affairs. Even in townships and their equivalents, equiva-lents, which are subordinate divisions of the States, and of which there are many thou-ands in the Union, may be detected a trac of legislative power, which is freely exercised by them, especially over their paupers and highways. high-ways. , , lu reference to the second ot tnesc j general proposition-, it may be said that the most ancient political organizations organi-zations in the world have hcen cine-. The more ancient of the extinct cities "have left us but imperfect knowledge of their organic structures. The organization or-ganization of the H 'tnaii muni'tpn or cities, however, is ire I known to U-; ami to nothing of all antiqmtiy a.e the moderns more indebted than to those. Home was the "nur-ing mother'' mo-ther'' of Christianity and modern civilization; civil-ization; and when the body of the empire peri-hed after a death strugoe of centuries her literature, her laws and her relicion. were preserve'., m her cities, and by them eoir.iiiuir.cate l to her savage conqueror-. '1 he capita...-j capita...-j of western, central and southern .. trope, tr-ope, were, with perhaps no exception. 1 centres of Roman civiHzation long before be-fore the existence of the nation- t.-which t.-which thev bcloti--, and from whua the benign influence- of thr.t r.yi.utUl.-n were radiated to their , xiivui'.tie.-. The cities of the I nued Mates an 1 of Europe are -in ilar in their oiyat.i-zations oiyat.i-zations to the H unan ." ;i- l'r 0j:v. The nu.y.r-. a ..emu n ..y Councils, or tllelf iq'l.V ..-'I. .s. V..K.. are I oil ml in incm. .. ' . , i-type-. in the ,!,t,.mu,-i ' 'n mitiiiWj-wm or c.ty. m c lucra tively few exceptions, cities have always al-ways possessed the power of framing by-laws or ordinances commensurate to their own local exigencies. For example, ex-ample, cities have always been considered consid-ered peculiarly liable to disease, and prominent therefore among their bylaw by-law or ordinance-making powers, has been that of framing their own health laws and regulations. A significant example upon this subject, sub-ject, may be found in the city of Washington, Wash-ington, the capital of the United States. Article I. Sec. YIH. cl. 17. of the Constitution of the United States, provides, that, "Congress shall have power to exercise exclusive legis- lation, in all cases whatsoever, over such district (not exceeding ten miles square) as may by the cession of particular par-ticular States and the acceptance of Congress, become the eat of the Government Gov-ernment of United States." ke. Notwithstanding, Not-withstanding, this total imperative and exclusive grant of legislative power to Congress, over the District of Columbia, Colum-bia, that body lias incorporated therein there-in the city of Washington, with a Legislative Council and ample power J to enact ordinances commensurate to i its own peculiar wants. The corpora- tion of Washington, for example, among other things, is empowered "to establish a board of health, with competent com-petent authority to enforce its own regulations, and to establish such other regulations as may he necessary to nrevent the introduction of contagious diseases and for the preservation of the health of the city." Act of 1820, Sec. 7- (modifying previous acts.) Sec. 8. of the same act empowers the city of Wa-hington "to establish and erect hospitals or pest houses." These legislative powers of the city of Washington, Wash-ington, subject to occasiocal modifications modifica-tions by Congress, have been fully exercised without question for more than half a century. The constitution of every State in the Union absolutely vests the lawmaking law-making power in its legislature. The States, through these very legislatures, have nevertheless, incorporated many cities, and endowed them with power to enact by-laws or ordinances fully commensurate to their own peculiar wants, especially those pertaining to the health of their inhabitants. This practice is as old as our polity and has rarely, if ever, been successfully questioned. ques-tioned. Tho conclusions thus stated, have been referred to subordinate political and municipal organizations. They may, however, be affirmed of commercial, commer-cial, mechanical, banking and other corporations, in all their varieties, one I of whose essential powers is that of luaKing py-iaws. Indeed, a characteri-tie tendjr.cy of modern civilization is to distribute the exercise of legislate powers among those more immediately concerned. None know the diseases of cities so well as their own people ; and no others are therefore so competent to make laws for their prevention and euro. These and similar examples really require no delegation of legislative power. They merely require grants, by the law-making power, of authority to frame by-laws or ordinances, upon subjects, respecting which the grantees possess local and peculiar knowledge and interest. And these grants are in the nature of public ageneies. exercised upon the principle of "qui J'm-i er alium facitper se," which lies at the foundation of all such relations. The appellant's exceptions condensed and stated consecutively are as follows: First, that the legislative power of the Territory of Utah, being vested in the ! Governor and Legislative Assembly, : no part of it ould be delegated to the 1 city council of tireat Salt Lake City, o ' as to enable it to pass the ordinance, under which the tine was imposed in the preLent ease, wnicn orumance therefore null and void ; Secondly, that even if these grants of power arc valid, the city council of Great bait Lake City has exceeded thorn, in passing pass-ing the ordinance in question, which is theietore null and void; and Thirdly, that the judicial power of the Icrntory of Utah being vested by its organic act in Supreme,- Di-trict and ProDate Courts and in Justices of the Ptac' . no judicial power as an nbbrmnn con.d be conferred on the maia-trate b. S.ce whom the present ca-e originated, to adjudtre the same ; that a- Mich alderman alder-man he could as-u:ne no ju:i i.ctioii over it.and that thcivf 're hi-ju L'lu. nt was null and void, an 1 ciiin"t meretoie be affirmed in this curt. Great Salt Lake City has exist, d under un-der two ditil-rent act- of ri'-or, .ua i'ui. ',, arl,roved Jan. 1 1,1. and the other 'a .proved J..n. - "''" 1 repeals the toru.er, Se,.s,. 1 he .a... r Of ihe-e acts , rovri. .-. S-c 4- '."'; "The i.iUiii. ii ai tf-V'Tt.T!;; n: ' ! Salt Lae O y i- mo :---: y, v -:. 1 m a citv "". i. : i'c e-.u." - ! o. a i five ,. .; :1M i... '-"J- ;" 'J'' ; ., 1 , - .. cm. :: -r-. c ; - ; is provii.- o :' ;. ;;: i liieu sl.:o. e 4.-T.- ' .1 y . within t! ' : ' ' I " ,-! ' '"' : cive 1".. 1- a;, t .p " ":' '' ' i-1' ;h" i 1 ,:'".r" ' ."; .; !v;-'.'o.' :r'bo'iriu ,.v:: ..-.i e. ..... ' ati-iuuiii-r i:.c ...w-.o; ., . -. .y' b-" r'cG : " ;'; ; ; i men .-'..-' i.:-";e ' :'- "-' dictv:? iu -1 1 ' - - r- . - ;.: ,hr t:..' '-' ' - - - and issue such process as may be ne- ; t cessary to carry such ordinances into : ( execution and enect." Sec. 4J. pro- i vides that "The city council shall have ! power to make regulations to prevent t the introduction of contagious diseases i into the eitv. and round it Dot exceed-ing exceed-ing twelve miles beyond the bounds ' thereof." See. 70 provides that, "The ; 1 city council shall have exclusive au. i thority," among other things, to "es- tablish and execute all such orain-; t ances," as may be necessary, "for the '. health, safety and happicess of the ' inhabitants thereof." Sec. 61 author-1 ixes the city council, among otter things, "to make, publish, ordain, amend and repeal" "the necessary ordinances or-dinances and to enforce them by penalties pen-alties not exceeding ono hundred dollars, for any offense against the same;" and Sec. 41 authorizes the city council "To grant and issue licenses," li-censes," &.c. j Now the appellants' first exception denies the validity ot some or all of, these grants of power, and as they directly or indirectly concern the present pres-ent case, it may not be improper to add to what has already been said, that these powers are all necessary to ; ihe maintenance and regulation of; Great Salt Lake City, that they are all more or less local and exclusive in their i application, and that they ad pertain to objects respecting which the people of the city cannot but have peculiar 1 knowledge and interest. Thev are certainly not greater than what are ; ve.-ted in the city uf Washington, and in the various cities of the States of the Union, under constitutions, which restrict the law-making powers to their legislatures, quite as exclusively as the organic act of this Territory j does to its legislature. ; Section tj of the organic a:t of the Territory of Utah, provides that "All the laws passed by the legislative assembly as-sembly and Governor, shall be submitted sub-mitted to the Congress of the United States, and if di-approved by it shall be null and void.'.' The act incorporating incorpor-ating Great Salt Lake City, frunt which the foregoing grants of power have been cited, has been more than five years before the Congress of the Uuitcd States, and has not been disapproved dis-approved by that body, in whole or in part. It may however be said that "Congress has overlooked this act." This objection, however, is answered by the well known presumption of law, that "All public officers do their whole duty," and they, who in .my case allege, al-lege, must prove the contrary. The power reserved in Congress, by itself, to disapprove, devolves upon that body the duty of revising the legislative acts ..t'tl! Tovt-itnri- r,f I T r : I Vl .Old tlie tm!- sumption as cited is that this, duty has been pet formed. Congress' therefore not having disapproved, must j be presumed to have approved the siet incorporating Great Salt Lake City, containing these grants of power, which are, therefore, valid as well by ; the Act of Congress as from their own , intrinsic fitness, and by analogy to similar sim-ilar grants in like cases. This presumption of Congressional approval is enforced by the fact that Congress, in its Act approved July 1, 1S62, United States Statutes At Large, page 501, in reference to all the Territories, Terri-tories, and especially to the Territory of Utah, disapproved two whole Acts, "and all other Acts and parts of Aci. (theretofore) passed by the Legislative Assembly of the Territory, which establish, es-tablish, support, maintain, shield or countenance" a certain condition therein there-in mentioned ; and this was done without with-out disapproving the Act incorporating Great Salt Lake City, or any part ot it, thereby impliedly affirming the said Act and the grants of power which it contains. The appellant's second exception affirms that even if these grants of nowcr to Great Salt Lake City are valid, that it. Council has exceeded i the authority which they confer, in its ordinance entitled, "An Ordinance lie-luting lie-luting to l'hy.-icians." pavsed March ; 12. isr.d. and which is therefore null and void. The powers thus jiranted and to which this exception piirticti'arly refers are those authorizing the Council ol .Great Salt Lake City. "bee. 4;', To j make regulation- to prev. nt the intro- dnotit.n of cr.nia-ious di-easc- into thj citv ; to make quarantine laws, and j enforce the same within the city and j around it. f.o' cxee-ding ' vc b-vond the bound- thereof ; hti-1 bee. ; i-"for the health, s.icty aril happi- . I,.. of the Iit.aKitatit- tie rof The ordinance rx-.-opt..-! to a- an tx-rf-iveex-reiM.' ol th.e-p cran'- f p"'T : provider Sec. 1 "That any p. r- u.. who shali ir.u ti - l hy-ie. n;- i ''; '-r ,-l-eftv. wnl.ia t! in.it!- t i .-. 1 . is i, '-j re p.i'C 1 to "htd.ri a ii,..-n-e 1. ai ;!.' I'.ty C"U'r ,i 1 -r t.c.t 1 "r';; .T, v a r. . :..,,. , r " '."a- : i: 'o'i v th" ' -y '' .:. w1' d " A '" ' ' ' " : .-:;:.'..-., a : os - f t;. - ' ; t-.- ' ' ' ' ' ' 1 ; v , : ! . t : ' ' ' .-it-, i ' C ' 'xc-fiive cor otherwise ixproper exer-tie exer-tie cf the former. Ali such pc-w.-rs ire necessarily trie:", gtnerai srtd comprehensive. com-prehensive. They mer--ly indicate the thing to be done, and leave the mode ted the details to the grantee. For example. the whole taxing pcw?r pf the United State? is granted ty the Constitution in nine words. Ar. 1., Sec. VI1L, Cl. 1, as follows : "To lay and collect taxes, duties, imposts and ex-rises ex-rises ;" its commercial power as follows fol-lows : Cl. 3. "To rtgu'.ate commerce wtth foreign nations and among the several States, and with the Indian tribes;" its whole tuilitarv power as follows : Cl. 11 and 12. "To declare war.' and "To raise and support armies arm-ies :" and it whole naval power ns follows fol-lows : Cl. 13. "To provide and maintain main-tain a navy." These, like all such futidamental grants of power, are eminently brief and comprehensive. Their derivative legislation, however, and the events which they have initiated, are almost unlimited in their magnitude and importance. The act of incorporation thus charges the Council of Great Sad Lake City to make the neccs-arv ordinances "tor the heul-h, safety." c. of inhabitants, inhabit-ants, tan the se.ec:i,n of com I'-cteiu physicians to treat its di.-e.i-os he considered con-sidered an improper exercise of thi.-power thi.-power ? The affirmative tnu-t be shown to be at all credible. Medical diplomas and numerous rules and regulations reg-ulations elsewhere, pertaining to the piactice of medicine, show almost by common consent, the qualifications and appointment of physicians and surgeons sur-geons to he a proper subject ot pubnc supervision. A high-tned. learned and experienced experi-enced physician may well rebut from an examination, proper only for some mere fledgeling of the profession. Every man, however, who seilles in any community, mu-t eonloiui to its laws or show them to be of no etlect. This, it is submitted, has not been done in the present case. The appellant's third and last exception excep-tion is, that inasmuch as the oigamc act of the Territory of Utah, vests Us judicial power in a Supreme, District and Probate Courts, and in Justices ot the Peace, that therefore the act incorporating in-corporating tireat Salt Lake City, which vests the power to adjudicate its ordinances in aldermen, is so far null and void ; that the magi-trate before be-fore whom the resent suit originated could assume as one of such aldeinien no valid juri-dietion over it, that his judgment was therefore void, and could not be legally affirmed by this 1 court. I Now. Sec. hi of the Act incorporat- ting Great Salt Lake City, a,n a Incited, In-cited, provides that these al. lei nun "shall give bon is and quilify as justices jus-tices of the peace t and w hen so qualified quali-fied shall j o-sess the same power and jurisdiction both in civil and criminal cases, arising uikIt the laws of the Territory, and may be cm ni i.un d as justices of the pcaci- in and tor said city by the Governor." in all, therefore, but the name, these Aldermen are Justices of the l'ea.e. Their qualifications, powers and jurisdiction, juris-diction, are identical with tho-e ol Justices of the Peace. In most if not all the cities of the Union the judicial, magistrates are Aldermen. Iiy the laws of most if not all the Sia'es of the Union, Aldermen are ij'ne fictt, Juli es of Ihe Pence. The most comprehensive comprehen-sive analogy, therefore, requires xi to regard the act creating these Alderman as a valid exercise of power Thi exception ex-ception is also answered by ih' lnuum I of local construction, minimis ;.o)i ! curat Ir.r," which exclutl'-s mere nominal nom-inal and immaterial objections. 1 i- Inally, it is negatived by the implied 'sanc ion of Congrns-s as already shown j for nioie than fi' e years. The judgment of the Probate Court ought, I her. fore, to be. and n. amrnicl. (Jou ietioii of ihe ultimate importance impor-tance of this ca-e, bavin- among it-possible it-possible cnseqiicnee- the overthrow ol the polity and even the ot rani t ion ot ihe appeilte. may l.av all' ady unduly un-duly extended thi- opinion. t i- 111"'---arv, how ' T, to :: 11 that after the a p'al in thi- ca e ..-. u prib-ctcd in the Pre '" . ""i a bond i.o. iv 1 there w :h . .'. ' ? ircli.o. con iltii.n- I ' that if i a I J.-peal J.-peal should b" .h-iin- "d or ti.-inenl ti.-inenl of the I'robat" C.i.H i. h" (the i J" i.;.!.! i l.i ' -! 'y ' "''' in 1,-m' tit and old".- u. . ! I y i'.-h:,!.. i'.-h:,!.. Couit. a-i I . I I a i r 1 '- :' ,.,.,. ,. , 1 ac, t.-t I .in o. ti.'' D, 'fi'" Co in. ( '. - 'a. a- a; ; "- I v . . ,. , i , w :,- i i, I . ;. .! ,.. . ;. ' I I" I ' ' 1 ti'.'n a. ' t! . la 1." I'P'-n ;' ) ' ' ' '" in tl e n ir- - :.u "-t I ''' , - . ' : ' " j; ' ( lit ! a i i n 1- t. i I ' " " 4'-. T ti - ' ' ' " '' ' '': '-' 1 11 ' pr;- , f. : . ! il ' " ' h v .- r. :. .' 1 v . . . ! t , ; : s ...i i - : " - i ' ' ' :"' :' ! v ; ' i V' ." .' : .v .ft' i: '..'V' ' ' ,.. ' . v. l . ., ' . i ' ' '' ' ' ' ' r ''''' . - .''''' i . . nent and costs. This e.va:t. thoretore, csused the morey thus collected to be paid by tho Shcr.rT to its Clerk in accproance w::h the principle that it vvlleotion had Ken i-r.t.twi :ri the Probate Court, after the jurisdiction of that court had fven suspended by the avpcai'., in d srecard cf the irjurjo-lion. irjurjo-lion. after the jurisdiction of this court had exclusively attached, and a: a t.uie when all further prooccuuisS in the Prolate Court were wholly unauioor-li; unauioor-li; d and itr.t roper. |