Ex parte Taylor

I concur in the judgment. The defendant was convicted of placing and suffering to remain on the inside of a sidewalk something which obstructed the free passage of said sidewalk; and I do not think that an ordinance making such act an offense is in conflict with the general law of the state found in section 370 of the Penal Code, which declares the obstruction of a lake, river, park, street, highway, and other enumerated places to be a public nuisance, and the person who maintains it to be guilty of a misdemeanor. There are many matters connected with streets, sidewalks, awnings, trap-doors, etc., which are particularly within the scope of municipal regulation, and which cities and towns may legislate about without intruding upon any general law now in existence. The charter of San José giving power to pass the ordinance in question was enacted after said section of the code, and it is evident that the legislature by passing a law preventing nuisances on public highways throughout the state at large did not intend to prohibit the municipality from dealing further with streets and sidewalks within its corporate limits. The matter involved in Ex parte Sic, 73 Cal. 142 , was smoking…

The petitioner is convicted of a violation of an ordinance of the city of San José in relation to streets and sidewalks.

It is claimed that the ordinance is void, because in conflict with the constitution and with general law, by reason whereof the city council had no authority to pass the same.

The city of San José is a municipal corporation existing under a special charter passed before the adoption of the present constitution. By section 9 of that charter the council is authorized and empowered “to pass all necessary and proper laws; .... to lay out, alter, vacate, improve, cleanse, water, and repair streets and sidewalks; .... to define, prevent, and remove nuisances; .... to impose and appropriate fines, penalties, and forfeitures for any and all violations of city ordinances; and for a breach or violation of any city ordinance, may fix the penalty by fine or imprisonment,” etc. The ordinance referred to forbids the obstruction of the streets or sidewalks, and provides a penalty for the violation thereof. It is not contended that the act of the petitioner for which he was arrested and convicted was not a violation of the terms of the ordinance, or that the penalty imposed…