THE GREEN BAG city of Omaha granted the following specific authority: "The mayor and council may regulate or prohibit the transportation and keeping of gunpowder, oils, and other combustible and explo sive articles." They were also given the usual powers to prescribe fire limits, and to regulate the erection of all buildings within the corporate limits. It was in the exercise of the last two mentioned powers that the above ordinance was enacted. The gas company of the city of Omaha, wishing to build a gas tank, complied with all the conditions of the ordinance, with the exception that it did not file the consent of the property owners with the city officials. On the refusal of the city authorities to give the requisite building permit, mandamus was brought to compel them so to do, and the constitutionality of the act was directly assailed. It was contended that the ordinance was unconstitutional, first, because it is, or in practical operation may readily become, prohibitory, on account of the difficulty or impos sibility of procuring the unanimous consent of all the owners of property in any locality of the city: and second, because it assumes to confer upon individual property owners within the prescribed radii absolute and arbitrary powers, whose exercise is dependent solely upon caprice, and which have no necessary .connection with public safety, health, or morals, and are of such a nature that the governing body itself could not safely or lawfully be intrusted with them. The court adopted the arguments of the gas company, and held the act unconstitutional as an unlawful delegation of power, and cited and relied upon the cases of Mayor of Baltimore v. Radecke, 49 Md. 217, 33 Am. Rep. 239; Sioux Falls v. Kirby (S. D.), 60 N. W. 156, 25 L. R. A. 621; Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220; City of St. Louis v. Russell, 116 Mo. 248, 22 S. W. 470, 20 L. R. A. 721. The court also passed upon the :ase holding a contrary doctrine, of City of Chicago v. Stratton, 162 Ill. 494, 44 N. E. 853, 35 L. R. A. 84, 53 Am. St. Rep. 325, and, besides dis tinguishing said case from the other cited cases, repudiated the doctrine there announced. The decision is in accord with that of the Su preme Court of Missouri in St. Louis v. Russell, 116 Mo. 248. But, as was observed in Chicago v. Stratton, 162 Ill. 494, the requirement of consent in the Missouri case related to a business which could not have been prohibited entirely within the city, while such entire exclusion might have been the result of the requirement. In the Nebraska case, the court deems it unnecessary to decide whether the council might have prohibited gas reservoirs within the city limits entirely; there fore it is proper to assume that the ruling would
not have been different, had the business been held to be subject to absolute prohibition within the city limits. From the point of view of legislative policy, a great deal is to be said in favor of the principle adopted by the Supreme Court of Nebraska. As a matter of constitutional law, the delegation of the power of consenting to the location of " trade nuisances " to residents or property owners, is distinguishable from a similar delegation to the unregulated discretion of administrative officials. In view of the well established practice of the former kind of delegation in the matter of liquor saloons, it is impossible to maintain that there is a clear constitutional rule against the validity of such delegation. E. F. CONSTITUTIONAL LAW. (Police Power.) Colo. — The City of La Junta, Colo., owns a water works system, taking water from the Arkansas River, and also owns some artesian wells within its own boundaries. The city council passed an ordinance relative to the regulation, use, and sale of artesian water within the corporate limits, and providing that any one engaging in peddling, selling, or giving away water from an artesian well should first apply to the board of trustees for a permit, "and if such board in its discretion grant such permit, shall pay to the town treas urer the sum of fifty dollars for a license for one year." Other provisions provided for punish ment for violation of the ordinance. The valid ity of these enactments of the council came up for determination in the case of City of La Junta v. Heath. 88 Pac. Rep. 459. Heath had been accused of violation of the ordinance, and dis charged. The city appealed. The Supreme Court said that the business of selling] water was a lawful occupation, and distinguishable from the business of liquor selling, where the character of the person applying for the privilege became a proper subject of inquiry, and while granting to a city the right to make all proper health regula tions relative to its water supply, held that the ordinance in question was not enacted for that purpose, and that it interfered witfi the right to pursue a lawful calling, and was void. CRIMINAL LAW. (False Pretenses.) N. Y. C. of A. —- In the case of People v. Tompkins, 79 N. E. Rep. 326, the Court of Appeals of New York reaffirms the doctrine laid down in McCord v. People, 46 N. Y. 470, that a prosecution for larceny by false pretenses cannot be sustained where the person parting with his money or property does so for an illegal purpose. The court admits that the weight of authority is to the contrary, but feels bound to follow the doc
