City of Saint Paul v. Laidler

By the Gov/rt. Atwater, J. The Defendant in Error, was convicted before the City Justice of the City of Saint Paul, of the violation of the following Ordinance of said city viz “ It shall not be lawful for any person or persons to sell or expose for sale fresh meat, (poultry and venison excepted) in any quantity at any time or in any building or street or other place whatever within the limits of the City of Saint Paul ex — 202 — cepting in the stalls of a Public market established and designated by the Common Council, unless such person or persons shall have first obtained a license as hereinafter provided by this Ordinance : Provided that nothing herein contained shall prevent any person or persons from selling or exposing for sale in the streets in the immediate vicinity of such public markets or elsewhere fresh meat by the carcass or quarter, according to such regulations as the Common Council shall from time to time ordain.” The Defendant appealed from the judgment entered against him to the District Court of Ramsey counyt where the judgment was reversed. The Plaintiff below brings the case to this Court by writ of Error. In considering the important question presented by the case, it will be necessary to refer to one or two other sections in the same Ordinance as that above referred to. Section three provides “ That the Common Council shall, from year to year, determine the minimum rents of all of the stalls in the public markets of the city, and it shall be the duty of the Market Master to offer for sale at public auction, to the highest bidder all such stalls, at such time and place as the common council shall designate ; but no stall shall be rented for a less sum than the minimum rents determined as aforesaid.” Sec. 4. “ When any person shall rent a stall in the public market house, he shall pay to the Market Master one fourth of the annual rent in advance and shall give security satisfactory to the committee on markets for the remainder thereof, to be paid in three instalments and on the commencement of each quarter of the year next ensuing.” Seo. 5. “ It shall be the duty of the City Clerk to keep a record of the number of stalls so leased, and the names of the lessee; and it shall be the duty of all persons transferring leases to stalls to notify the City Clerk, who shall upon the production of a receipt from the Market Master of the sum of two dollars, transfer the same as desired; and no stall shall be used or occupied by any one except the lessee, until after the payment to the Market Master of the sum of ten dollars, and the transfer of the lease.” Sec. 36. “ The Common Council may license any suitable — 203 — person or persons to sell fresh meat within the limits of said city, out of the public market at any particular place to be in said license specified for a period not longer than one year. Provided that such license shall terminate on the second Tuesday of May next ensuing the time at which it may be granted; and shall be revocable at the pleasure of the common council; and the amount of such license shall be fixed by the common council.” Seo. 43. Provides that the present market house leased by the city shall be established as a public market of said city, subject to all the regulations and provisions of this Ordinance. These are all the provisions of the Ordinance that seem to have a bearing upomthe question presented for the consideration of this Court. The power to pass the Ordinance containing these provisions is claimed particularly under Sec’s 18 and 19, “To establish a public market and other public biiildings and make rules and regulations for the government of the same; to appoint suitable officers for overseeing and regulating such markets, and to restrain all persons from interrupting or interfering with the due observance of such rules and regulations.” Sec. 19. “To license and regulate butcher stall shops and stands for the sale of game, poultry, butcher’s meat, butter, fish and other provisions.” The chief point for consideration in the case is, whether the. Ordinance under which the Defendant below was convicted is one in restraint of trade. If so; it seems to be conceded by the counsel for both parties that it is unauthorized and void. The City of Saint Paul is a municipal corporation, organized and established to accomplish certain purposes and objects particularly specified in its charter. The city government derives its power and authority to make and enforce laws for the government of the city solely from the legislature. It is entirely a creature of the Statute and in the exercise of its authority cannot exceed the limits therein prescribed. It is a body of special and limited jurisdiction; its power cannot be extendr ed by intendment or implication, but must be confined within the express grant of the legislature. Especially is this the case in the exercise of its legislative authority, or the power of making ordinances or laws for the government of the city; and — 204 — not only so, but this power must be exercised reasonably and in sound discretion, and strictly within the limits of the Charter, and in perfect subordination to the Constitution and general laws of the land, and the rights dependent thereon, (2 Kent. 296,) and where the Charter enables a company or corporation to make by-laws (or ordinances) in certain cases and for certain purposes, its power of legislation is limited to the cases and objects specified; all others being excluded by implication. (Angell and Ames on Corp. p. 352.) Incidental to the ordinary powers of a public municipal corporation, and necessary to the proper exercise of its functions is the power of enacting sanitary regulations for the preservation of the lives and health of those residing within its corporate limits. And it may reasonably be inferred, that Section nineteen of the Charter of the City of Saint Paul, was framed to' give the corporation authority to make such regulations and with this object only. And so far as it conforms to this object, and assumes to exercise no power further than may be necessary to attain it, the Ordinance should be held valid. But if it goes beyond or outside of this purpose — if it embraces within its scope attainments of objects inconsistent with the manifest intention of the legislature in making the grant of power, and which restrain and limit the rights which citizens before enjoyed, neither upon reason or authority can it be sustained, but must be held void. It seems to be conceded that under the section of the Charter above quoted, andby authority of which the City Council claimed to have passed the Ordinance in question, the right to restrain trade is not conferred in terms. And for reasons above stated if such power is not strictly conferred, it cannot be claimed by intendment or implication. But the argument of the counsel for the Plaintiff in Error has been mainly directed to show that the Ordinance under which the Defendant in Error was convicted was not in restraint of trade, but only for its regulation and therefore authorized by the Charter. Upon a careful examination of the provisions of the Ordinance we are satisfied that the Common Council have exceeded their authority in its enactment and have attempted to exercise a power not vested in them by the legislature. There — 205 — are many eases where it seems very difficult to draw the distinction between laws which only regulate, and those which restrain trade. But we have yet to find a single authority which holds that a law or ordinance containing the limitations and restrictions which abound in the one under consideration, has not been held in restraint of trade. These restrictions are numerous, unnecessary, and some of them unreasonable and oppressive to those who wish to exercise the trade which the Ordinance pretends to “regulate.” It will be observed by a reference to the Ordinance, that it provides that no person shall sell fresh meat (by retail or less than a carcass or quarter) except in the stalls of a public market, without a license. It provides that the Common Council shall fix the rates for such stalls' and .that no person shall occupy such stalls without paying the rates fixed try the Oenmeil, or such higher rates as they shall bring at auction. It provides that one quarter’s rent shall be paid in advance, and security given for the balance, also to be paid quarterly in advance. It provides that no lease shall be transferred except upon the payment of the sum of ten dollars, and that no stall shall be occupied by other than the original lessee, without such transfer and payment. It provides that the Common Council may license any suitable person or persons to sell meat within the City limits, upon paying the amount of such license as fixed by the Common Council. It is difficult to perceive on what principle these onorous restrictions can be maintained. Not certainly on the ground of necessity, as mere sanitory regulations. For the ordinance gives to the City a complete monopoly of the business which it purports to regulate. For it declares in effect that no person shall sell fresh meat unless in one^of the stalls of the public market; and that no person shall sell fresh meat in one of the stalls thereof, unless he shall first hire the same, and pay or secure the payment of the rent therefor. No provision is made that the City shall provide sufficient stalls for all applicants, and from the nature of the case the number of the stalls must be limited. The Council may charge one or five thous- and dollars for such stalls, payment of which may be compelled, or the entire sale of meat (by retail) be prohibited. It is — 206 — no answer to this to say that it is not probable that such a course would be„pursued by the City authorities. The difficulty is, that the ordinance gives them the right to do it; that by virtue of it such power is claimed by the Common Council. Nor is the difficulty obviated by section thirty-six, providing that the Common Council may license any suitable person to sell fresh meat within the City. For the section leaves it in their discretion whether to do this or not, and also leaves it in their discretion whether the person be suitable or not. Nor as the ordinance is framed, is there any court or tribunal that can review the exercise of that discretion. Permission to sell might be granted only to political partizans, or personal friends, and there could be no redress for such an exercise of power. ,No general rule has been adopted which shall apply equally to all upon complying with such conditions as may be prescribed. And thus the Common Council have assumed the right to restrain every person they choose from engaging in a trade which by common law is free to all. And instead of confining themselves in the exercise of the power to regulate the trade of butchers, to the precise object for which the grant of power was made by the Legislature, they have practically exercised it for the purpose of raising a revenue for the City. For the counsel for the Plaintiff in error in his argument, admits that the reason of the Common Council in refusing the Defendant a license to sell outside the market on his application therefor, was to require the party to rent a stall. Or to use his own language, “ it will be seen that an unlimited exercise of this license power would frustrate the object'of the Common Council in establishing the public market; the design of which was to bring the butchers together at that place.” The authorities cited by the Plaintiff in error’, do not sustain his position to the extent claimed by them. The case of Bush vs. Seabury, 8 Johns. 418, was a ruling upon a by-law essentially different from the one under consideration. That provided that after the first of July no'person, &c., should hawk about any beef, pork, veal, mutton, or any other kind of meat, by selling the same for the consumption of the inhabitants, and that any -person wishing to sell the same for — 207 — the purpose aforesaid, shall repair to the public market house, and there expose the same for sale, ” &e. The only restriction here seems to be as to tíme and place; and it does not appear that any charge was made for selling at the public market, much less that only suitable persons (in the discretion of the town authorities) were permitted to sell meat in the market. It would appear that every person who chose could there expose meat for sale, free of any charge from the town for the privilege. This view is strengthened by the case of The Village of Buffalo vs. Webster, 10 Wend. 100, also cited by the Counsel for the Plaintiff in Error. In that case the defendant was convicted under a by-law of the corporation, by which it was ordained, that it should not be lawful for any person .within the limits of the corporation, during certain months, to hawk about or sell by retail any kind of fresh beef, lamb or mutton, for the consumption of the inhabitants of the village, except at the public market or within, certain, Units an'owhd the same. And Savage, Chief Justice, in giving the Opinion, says: — “ At common law, corporations have power to make by-laws for the general good of the corporation. They must be reasonable, and for the common benefit; they must not be in restraint of trade, nor impose a burden without an apparent benefit. A by-law for the regulation of trade, imposing particular restraints as to time and place, is good; but general restraints are bad. Laws relating to the public market must necessarily embrace the power to require all meats to be sold there — not that every man who sells meat shall Iwre a stall. Nor is there any such objection to the'present la/w. Any one may sell in, the streets adjacent to the market.” Here it will be seen that the by-law or ordinance sustained in that case was not only entirely free from some of the most serious objections to the one under consideration, but the inference is almost conclusive, from the language of the Court, that, had they existed, the law would have been declared void. Nor does the case of Clark vs. Le Cren, 9 Barn, and Cress., p. 5219, Com. L. R. 33, furnish any authority for sustaining an ordinance such as this under which the defendant was convicted. That was an action of debt brought in the Lord Mayor’s Court to recover from the defendant a penalty of £5 for having — 208 — used and exercised the trade of a painter within the City of London, he (the defendant) not being free of the Painters’ Company; and in that case it was urged that the by-law was only in regulation, and not restraint, of trade. But it was held otherwise — the Court declaring that, “ by common law, any person may carry on any trade in any place unless there be a custom to the contrary; if there be no such custom, a bylaw in restraint of trade will be bad. The return to the Habeas Corpus in this case sets out a custom for the Common Council to make by-laws for the regulation of trade; but the effect of the by-laws in question is, to prevent persons from carrying on trade. It operates, therefore, not merely to regulate but to restrain trade.” This reasoning, we think, applies with still greater force to the case at bar: for it may be reasonably inferred that every person might be made free of the Painters’ Company, and therefore exercise the trade, in taking the proper steps; whereas, in this case, there is no obligation on the Common Council to provide sufficient stalls in the public market for all applicants, and they have reserved to themselves the right to say whether any, and, if so, what person shall be licensed outside the markets, and, at wha.t price. Equally with the case above cited would this ordinance seem to be, not only one regulating but restraining trade. The same doctrine is held in Harrison vs. Godman, 1 Burr, 12; and Clark vs. Compton, 7 D. and R. 597; and in Rex vs. Harrison, 3 Burr, 1322, tbe by-law in the last named case being held good on the ground of a special custom to warrant it. In all these cases the by-law seems to have been held bad, except when supported by special custom; not on the ground that it was an absolute prohibition from engaging in trade, but because imposing restrictions upon the exercise and enjoyment of a right which by the common law was free to every one without any restraint. And one of the most important of these restrictions seems to have been the additional expense involved in the exercise of the trade in question; for in the case of Rex vs. Harrison, this was one of the arguments used by counsel against the validity of the law, and the force of which seems to have been admitted, by implication, by the opposing counsel, as he avoids it, by stating — 209 — that not only was no additional expense imposed, but that there were express provisions against it. In the case at bar, not only is there additional expense imposed upon those who would exercise the trade of a butcher, in compelling them to hire a stall in a public market, but this expense is entirely within the discretion of the Common Council, without the power of revision by any court, however arbitrarily or unreasonably it may be exercised; for the Common Council have the power of preventing the sale of meat in St. Paul unless upon payment of such rent as they shall demand. It is difficult to see how such an ordinance can operate for the common benefit, or the benfit of any one save the corporation: for, its legitimate effect must be, to increase the price of the commodity sold in proportion to the restrictions imposed upon those engaged in the trade — in other words, in proportion to the rent demanded for stalls and the refusal of the Common Council to license outside the market; and, consequently, the ordinance must operate not only to the prejudice of the butchers but also to that of the citizens in general. On the whole, therefore, we are satisfied that the ordinance in question is not merely in regulation brxt also in restraint of trade, and that it is unreasonable, unnecessary and inequitable, and cannot be sustained upon principle or authority. And, while the right is conceded to municipal corporations to adopt such regulations as may be necessary and reasonable, to protect the lives, health, property or morals of its citizens, the exercise of this right should be carefully guarded, and limited within the clear intent of the grant of power for such purpose; and, where a question arises as to any particular ordinance which it is claimed interferes with the rights of individuals as enjoyed under the common law or by statute, the burden of proof should be on the corporation to show that it has not exceeded its authority in framing such ordinance. In the case at bar, we think the Common Council has exceeded its authority in enacting the ordinance under which the Defendant was convicted, and that it is, therefore, void as to such part as -prohibits the sale of meat without a license outside the market, and that the judgment of the District Court should be affirmed. Justice Flandeau dissents from the decision of the Court.