In re Flaherty

The petitioner is under sentence of imprisonment for a violation of an ordinance of the city of Redlands, and seeks to be discharged on habeas corpus *560 upon the ground that said ordinance is wholly invalid and void.

The ordinance is entitled “An ordinance to promote safety and security to public travel by prohibiting the beating of drums and certain other noises on the traveled streets or avenues of the city of Eedlands, without special permission therefor, and authorizing such permission in certain cases”; and in the body of the ordinance it is made an offense punishable by fine or imprisonment for any person to, among other things, “ beat a drum” upon any traveled street of the city “without special permit in writing so to do first had and obtained from the president of the board of trustees of said city, which permit the president of said board may grant whenever, in his judgment, the issuance of the same shall not conflict with the aforesaid purposes of this ordinance, and not otherwise, provided, that such permit shall specify the time when, and the street or avenue where, any of said instruments shall be so used as aforesaid.” Petitioner was convicted of beating a drum…

The authority of the city to make police regulations is given by the constitution, and, although it is derived directly from the people, instead of mediately through the legislature by means of the municipal government act, yet it is a legislative power, and, like any other legislative power, is to be exercised by the body to which the power has been intrusted. The power to make laws is a sovereign power, and its exercise by the legislative body of a municipality, *568 being a delegated power, cannot be delegated to any other body or individual. Mr. Dillon says (Dillon on Municipal Corporations, 96): “The principle is a plain one that the public powers or trusts devolved by law or charter upon the council or governing body, to be exercised by it when and in such manner as it shall judge best, cannot be delegated to others.” Mr. Cooley says (Cooley’s Constitutional Limitations, 248): “So far as its functions are legislative, they rest in the discretion and judgment of the municipal body intrusted with them, and that body cannot refer the exercise of the power to the discretion and judgment of its subordinates, or of any other authority.” This inhibition includes, not only the…