City of St. Paul v. Colter

By the Court.- Berry, J. Unquestionably the legislature of this State would possess authority under a general power of legislation, as that function is commonly understood and exercised, to establish municipal corporations.. Besides, our Constitution places this matter beyond doubt when it says in Sec. 2 of Art X: “No corporation shall be formed under special acts eoodept for mwrdeipal purposes. ” See Tierney vs. Dodge, 10 Minn. 171. And the object in chartering these municipal bodies, is to confer special privileges and police powers designed to meet the necessities of the case; among these is the privilege of enacting by-laws and ordinances, by which the good order, the health and general well being of the municipality may be secured. Undoubtedly, this is a species of delegated legislation; but there can be no valid objection to it on that score, for the authority to establish these municipal corporations, in its commonly received acceptation, implies the power to establish with the privileges which are ordinarily a part of the chartered rights of such bodies politic. The regulation and licensing of butcher shops are some of the privileges allowed to incorporated cities. Sedgwick on Stat. and Cons. Law, 463-6. We think there can be no doubt of the power of the legislature to enact Sec. 5, Ch. 16 of the Special Laws of 1865, page 123, whereby authority is granted to the Common Council of the City of St. Paul, “ by ordinance, resolution or by-laws, to license and regulate * * * — 47 — butchers’ shops and butchers’ stalls, and venders of butchers’ meat * * provided that they be not repugnant to the Constitution and laws of. the United States, or of this State. ” Section 5 above cited further provides, “that not less than five dollars, nor more than five hundred dollars, shall be required to be paid for any license under tins act,” and with some apparent repetition adds, that “said Common Council may, at any time, revoke any license granted under this act for mal-conduct in the course of trade, and ma/y regulate cmd restrcmi the sale of fresh or butcher’s meat,” c&c. It will be at once seen that quite extensive powers are thus bestowed upon the City Council, for the purpose doubtless of establishing an efficient municipal government: and these powers do not depend, as in many of the English cases in which questions have arisen somewhat analogous to those raised in this action, upon customs, the existence of which was in dispute, but they are conferred by express legislation. It is not contended, nor could it be with reason, that the city council might not with propriety be authorized to fix upon some amount as the price of a license in a case of this kind, but it is urged that the ordinance by which such price is fixed at t/wo Ivimdred dollars is, on account of the exorbitance of that sum, “ unauthorized, void, oppressive, and in restraint' of trade ; ” that “ municipal corporations can only regulate trades or employments that are liable in and of themselves to become nuisances, or injurious to the public if not properly supervised or carried on; ” that “ such corporation cannot prohibit the conduct of a lawful business; ” that “these powers, legislative and otherwise, are confined to sanitary and police regulations; ” that “the legislature of the State cannot authorize a corporation to pass laws, save only such as are reasonable, and in regulation of employments that may become offensive;” that “legislation other than mere .by-laws punishing nuisances — 48 — when they exist, or disturbances of the public quiet, cannot be delegated.” So far as the exorbitance of the price of the license is concerned, we have seen that the common council is empowered by tké statute to fix it at five or five hundred dollars, or at any point between. This power is given as much with regard to licenses of butchers’ shops, as with regard to any other species of license. What limits should be imposed upon the licensing power, was a matter for the legislature to determine, — a matter dependent upon the judgment and discretion of the legislature. In such case we do not think it proper to question the exercise of legislative discretion. It is possible there may be instances where this discretion is so grossly and manifestly abused, that the courts may be called upon to pronounce its exercise an usurpation, but it will be time enough to dispose of the questions which might arise under such circumstances, when they are presented for adjudication. Under any reasonable system of government, much must be left to human discretion exercised upon the facts and necessities of the case in hand. We think that it was competent for the legislature to authorize the common council to fix the price of licenses at a sum from five to five hundred dollars. We think it was competent for the legislature, within proper limits, to leave the sum which should be required, in the discretion of the common council, for the very object of a charter is to empower them to provide for the well being of the city, by such regulations and ordinances as their daily observation of what is going on around them will qualify them to enact more judiciously than a body constituted as a State legislature ordinarily is, could be expected to do. We are unable to see any abuse of discretion in the passage of the ordinance in question. It occurs to us that if there is any kind of business transacted in a city “which is liable, in and of itself to become a nuisance, or injurious to the public if not properly supervised — 49 — or carried on,” or which “may become offensive,” or.which is a legitimate subject of “sanitary regulations,” it is pre-eminently this very business of vending fresh and butcher’s meats. The requirement of any license, or the enforcement of any regulation upon business, is to some extent, necessarily “in restraint of tradebut it does not therefore follow that such requirement or regulation is “unauthorized, void or oppressive.” It is in this case cmthorized by the legislature, and not being forbidden by the constitution, it is therefore not void; but has the force of law; and if it be oppressive, the remedy, as in many other cases, lies with the legislature or common council. Presb. Ch. vs. City N. Y., 5 Cowen, 540; 1 Ib., 604; McDermott vs. Board of Police, 5 Ab. Pr. Rep., 434. Prima facie, the presumption would be that the ordinance in question in this case is valid, as being within the scope of the powers of the common council; and this presumption is not overcome in our mind, by any thing going to show that the imposition of the license is a cover for unequal taxation, or for a burden or restraint upon freedom of trade not warranted by the terms of the charter, or the legitimate purposes for which such charters may be granted. Nor is it manifest to us that the common council have transcended, or gone outside of the police power which may be properly conferred upon them. We think the testimony offered for the piu-pose of showing “the amount of license reasonably necessary to regulate the business” in which the appellant was engaged, was properly rejected. What part of the expenses of maintaining a police force, or otherwise sustaining a city government should be paid by butcher’s licenses, could not famish data from which to determine the reasonableness of the price of the license. We think it was' entirely legitimate for the council in fixing the sum which should be required for a license, to look at — 50 — numerous considerations ; perhaps, among others, at the probability that the city might be put to great expense in litigation, and to other expenses arising out of this business, as well as at the expediency of 'fixing such price as to prevent any person from embarking in this business who could not furnish such evidence of his responsibility as the payment of $200 for a license, and as a stake for his good behavior, a stake which he was liable to forfeit,, if, in the language of section 5, above quoted, his license should be revoked “for mal-conduct in the course of trade.” Nor is it all important whether these licenses produce a revenue to the city or not. If it was proper to impose licenses, the money realized must go somewhere, and we can think of no more appropriate place than the city treasury. There cannot, possibly, be- anything in the point made that the ordinance confiscates the property of the appellant by rendering the building which he has erected for a meat shop useless, unless he submits to the payment of $200, and takes out a license. It is insisted that Ch. 16, Sp. Laws, 1865, page 121, is void, because it violates section 27, Art. IT of our constitution, by which it is declared that “no law shall embrace more than one subject, which shall be expressed in its title.” It is claimed that Sec. 7 of Chap. 16, by which it is provided in substance, that the collector of taxes for Ramsey County shall pay over his collections on account of the city to the city treasurer on the first Monday of each month, relates to a different subject from the balance of the chapter, which is devoted to amendments to certain specified sections of the city charter. The title of the chapter is “an act to amend the charter of the city of St. Paul.” "We think Section 7 may with propriety be regarded as an amendment to such charter, and that the law does not cm- . brace more than one subject on account of the insertion of sec — 51 — tion 7, any more than it does on account of the insertion of the preceding sections, which relate to different matters of detail, but to the same general subject, to wit: the government and management of the affairs of the city of Saint Paul. As observed by the counsel for the appellant, the collector of Pamsey county is collector of city taxes, and pro hao vice a city officer. See Board of Supervisors vs. Heenan, 2 Minn., 330. Tuttle vs. Strout, 1 Minn., 468. The point made as to the irregularity of the passage of the ordinance, was understood upon the argument to be abandoned; at any rate, we see nothing in it, nor in the further objection that the ordinance was passed on the 4th of May, and not published till the 9th of September, between which dates several meetings of the Council had taken place. Sec. 23, Ch. 10, of the Charter, enacts that “ The Common Council -shall cause all publications made by authority of the city to be inserted in the first column of the third page of the newspaper doing the city printing.” . This is admitted to have been done in this case and the Statute does not jfix any particular time within which it must be done. It is unnecessary to extend this opinion further than to say, that as we perceive no error, the judgment below must be affirmed.