Town of Kosciusko v. Slomberg

Wooes, C. J., delivered the opinion of the court. The charter of the town of Kosciusko confers upon the authorities of that municipality the power of establishing and enforcing quarantine and other regulations necessary to the health of the town; of making regulations to secure the general health of the inhabitants of the town and to prevent and remove nuisances; and of passing all ordinances which may be necessary to carry into effect the powers conferred. In supposed pursuance of these charter powers, the municipal authorities adopted an ordinance declaring it unlawful for any person to bring into, or to offer for sale therein, second-hand clothing, without first having produced satisfactory proof to the mayor of the town that such clothing did not come from a district or locality in which any contagion or infection was prevailing or had prevailed. The power to prevent the introduction of infectious and contagious diseases, by appropriate regulations, is not to be disputed. But, to justify the sweeping and far-reaching use of the power exercised in the ordinance in the case before us, there must be, at least, some circumstances appai’ently rendering such exercise of this power necessary for the preservation of the health of the public. The [472] town may quarantine, in cases demanding that extraordinary measure, in seasons of epidemic, in the interest of public health; but to justify the exercise of this power, there must be apparent necessity for so doing. In such cases, regulations unpleasantly or injuriously affecting the individual may be properly employed to accomplish the general safety. But, in the absence of any epidemic ajrparently requiring the use of quarantine regulations and regulations restraining trade, temporarily, the exercise of such power, in the manner employed in the ordinance of .the town of Kosciusko, becomes unreasonable and oppressive. The ordinance is in restraint of a legitimate trade and is unequal and unjust in its terms and operation. It cannot be contended that a second-hand clothing store is a nuisance per se, or that secondhand goods are infectious in their nature. If brought from a locality in which infectious and contagious diseases are prevailing, or have recently prevailed, such goods might properly be regarded as endangering the general safety and public health; but the same is equally true of new and unused goods. Between the new and the second-hand the difference, at the most, is a degree in danger only. Why impose the burden in the one case and not in the other? And why impose it, in either case, where there is no pretext of apparent necessity for such interference with lawful traffic ? The ordinance is clearly an unreasonable and unjust interference with a legitimate and recognized business pursuit, and is a permanent restraint upon trade. Affirmed.