STATE v. AMOR & COMPANY

Minnesota Supreme Court1922-10-13No. No. 23,071

153 Minn. 244

Summary · law.co

Holding. The ordinance requiring city council permission to operate an undertaking business is constitutional, and a defendant who violates the ordinance cannot defend against prosecution by claiming the council arbitrarily denied a permit application. The judgment and order were affirmed.

Amor & Company, an undertaking business in Minneapolis, applied for a permit to relocate from its existing location at 829 Second Avenue South to 2300 Hennepin Avenue. The city council denied the permit application. The business proceeded to operate at the new location anyway and was prosecuted for conducting an undertaking business without the required city council permit. The defendant was convicted and appealed, challenging the ordinance itself and also arguing the council acted arbitrarily in denying the permit.

The court rejected both challenges. First, the ordinance requiring city council permission to operate an undertaking establishment is constitutional and does not violate the Fourteenth Amendment, as established in prior precedent. Second, even if a business owner believes the council has acted arbitrarily in denying a permit, that person cannot simply violate the ordinance and raise the council's alleged arbitrary conduct as a defense. The business must seek relief through appropriate legal channels rather than operate in violation of the law.

The court noted that the defendant's existing permit for the original location provided no authority to operate at a different address, since location is a material factor in permit decisions.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Validity of municipal ordinance requiring permits for undertaking businesses
Whether alleged arbitrary denial of permit constitutes defense to violation of permit requirement
Significance of business location in permit decisions

Procedural posture

The defendant was convicted of operating an undertaking business without a required city council permit and appealed on constitutional and procedural grounds.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Halla ai, J.

Defendant is engaged in the undertaking business in Minneapolis. Prior to March 1, 1922, it conducted its business at 829 Second Avenue South and had a permit from the city council to do so. It applied to the city council for a permit to conduct its business at 2300 Hennepin avenue. The permit was refused. Defendant nevertheless conducted its business at 2300 Hennepin Avenue and this prosecution was commenced, charging defendant with operating said business without a permit from the city council. Defendant was convicted and takes this appeal.

An ordinance of the city of Minneapolis provides that no person shall maintain or use any building or place in said city as an undertaking establishment or carry on the undertaking business in said city without having first obtained permission from the city council authorizing the same. This is the ordinance which defendant is charged with violating. It is contended that this ordinance is unconstitutional and void, in that it vests in the council arbitrary power to say where such business may be conducted or who shall conduct it, that it abridges the privileges of the defendant as a citizen, deprives it of its property without due process of law and denies to it the equal protection of the laws. No particular constitutional provision is mentioned, but presumably defendants contention has reference to the Fourteenth amendment to the Federal Constitution. This contention was determined adversely to defendant in State v. Dirnberger, 152 Minn. 44, 187 N. W. 972. It was there held, following Fischer v. St. Louis, 194 U. S. 361, 24 Sup. Ct. 673, 48 L. ed. 1018, that an ordinance providing that no person shall operate a laundry within the city without first obtaining a permit from the city council was not contrary to the Federal Constitution and that it was valid. The question of what the rights of the parties might be if the power to issue permits should be abused by arbitrary or discriminatory action was not decided. We follow the Dirnberger case and hold the ordinance valid.

It is contended that in the operation of this ordinance the council did arbitrarily discriminate against the defendant, and defendant offered evidence intended to prove the arbitrary character of the action of the council. This evidence was rejected and of this defendant complains. This contention was determined adversely to defendant in State v. Rosenstein, 148 Minn. 127, 181 N. W. 107. The precise question raised here was raised there, and it was held that a person who is arbitrarily refused a permit to carry on an occupation doubtless has a remedy, but he “may not defy the law by doing the prohibited act, and then be heard in defense on the ground off the alleged arbitrary action of the council in refusing him a license.” The evidence was properly rejected.

The permit which defendant obtained for carrying on its business at 829 Second Avenue South does not avail him. Location may be quite as important as personality in the granting of a permit of this character.

Judgment and order affirmed.