Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-09-20
SUPREME COURT.
FULL TEXT OF DECISION r11E1

NIL 4U1IVuC wv C4OA
FULL TEXT OF DECISION FILED.
The City Of ST. Paul, Respondent, Us. Frederick
". Treayer, appellant.
OPINION.
The ordinance, for violation of which, de-
PENDANT convicted, purports to be
amendment of Section of an ordinance in re-
lation 20 markets, and as amended its provis-
ions are as follows: Every farmer. gard
ner, or person producing vegetables,
shall not sell the said vegetables
in, upon, or along the public streets
or highways in the city of St. Paul without
having first obtained license so to
do from the city clerk, as other IL
censes are procured, for which license
said person or persons aforesaid shall pay
into the city treasury the sum of 1875 for one
year ending on the first Thursday of May in
each year, and no fractional license shall be
given and said license shall only permit the
sale of vegetables away from the public market
after 10 o'clock of any day."
1t Is apparent that the provisions of this
section are founded upon the assum ption that
the common council, under the charter, pos
sesses the power to license the pursuit of the
particular calling or business mentioned! in
and along the streets of the city, and to pre-
scribe as an incident thereto when it may be
followed, what sum shall be paid
for the privilege and also to
prohibit the business entirely without
license as an efficient means for the protection
and enjoyment of the power itself. The ordi-
dance is in entire harmony with this view and
no other. 1t was not passed, as suggested by
counsel, by virtue of any power of supervision
and control over the streets, because powers of
that character are conferred for the sole pur-
pose of putting and preserving the public
streets in fit and serviceable condition as
such, by keeping them in repair and free from
all instructions and tending in any way
to the hinderance or interruption of the public
travel, and to that end alone can they be exer-
cised.
The ordinance in question has no such OBJ
iect in view. On the contrary, it expressly
authorizes the use of the public streets
for the purposes of the licensed traffic during
that portion of each day when ordinarily the
travel is the greatest, and when such traffic
would be most likely to interfere with the free
and uninterrupted passage of vehicles and
footmen, and it contains no provision In any
way restricting, or calculated to regulate, the
manner in which the licensed business shall be
conducted SO as to occasion the least public in
convenience. 1t cannot be claimed that it was
enacted In the exercise of any police ps.wer for
sanitary purposes, or for the preservation of
the good order, peace, or quiet of the city.
because neither upon its face: nor upon
any evidence before US, does it appear that any
provision is made for the inspection Of any
articles sold offered for sale under the license
or for preventing the sale of any decayed or
unwholesome vegetables, nor is there any re-
straint or regulation whatever imposed upon
the conduct of the business during the time it
is permitted to be prosecuted. The annual
sum exacted for The license is manifestly much
in excess of what is necessary or reasonable to
thoa
business itself is of useful character, neither
hurtful nor pernicious but beneficial to society
and recognized as rightful and legitimate, both
at common law and by the general laws of the
State. No regulations being prescribed in ref
erence to It's prosecution under the license there
coulu be little, if any. occasion for the exercise
of any police authority n su pervis ing the Lusi
ness or enforcing the ordinance, and no cause
for any considerable expense that account.
In view of these facts, it is quite obvious that
the amount of the license fee fixed with
reference to revenue purposes which it was the
main object of the ordinance to promote by
means of tax imposed upon the particular
employment or pursuit through the exercise of
its power over the subject of granting licenses.
Mayo vs.. CHM, o. s.. $685.
Such being the nature of the ordinance, and
the power asserted in its passage the question
arises whether under the provisions of the char
ter of the city Of st. Paul. in force at the time
of it's Passage, which provisions are found en-
bodied in the consolidation act of 1874 Tsp.
laws 1874, oh. y, the common council possessed
the particular power which they have thus as
sumed to exercise.
Under the general rule of construction APP
plicable to municipal charters, lhe existence of
powers of legislative character must be shown
by an express grant, or as incidental and neces-
sary to the proper enjoyment aud exercise of
such as are expressly conferred. Nothing out
side or beyond this can be taken by intenc-
ment or implication. St. Paul VS.. Ladder,
Mimi. 1870, Durham ct al. VS.. Trustees of
Rochester, 5 Cow. 462.
And when, us in this. case, the ordinance
which is sought to be sustained operates in re-
straint of an occupation pursuit useful in
its character, and which is so recognized at
common law and under the laws of The State,
it is especially necessary to show that the au-
thority for its passage has been expressly or
otherwise unequivocally conferred. Dill. MINI.
Cor. Sec. 29l and note.
Furthermore, if, this case, the charter
confers in general terms upon the common
council authority to pass ordinances for certain
designated general purposes connected with the
good order and government of the municipality,
which is followed by provision in the same
section containing the grant, declaring in terms
that such ordinances &C., ''shall have the force
of law provided they be not repugnant to the
constitution and laws of the United States or
of this State, and that for such purposes said
luton or bylaws" to do, ordain and enact
various enumerated things in the way of mu-
nicipal control, regulation, restraint,
prevention, granting licenses, &C.. en-
braclng as in this instance forty-one distinct
specifications, thereby showing Chat the legis-
lative mind was fully directed to the different
matters concerning which municipal author
ity was intended to be given, it is but reason
able to conclude that the exact scope and ex-
tent of municipal power and authority con-
ferred must be found in these specific enum-
erations rather than the general grant itself
that the latter restricted and limited by the
former.
Following these general canons of interpreta-
ton there can be but little difficulty in de-
termining the question as to the validity of
the ordinance under consideration.
Subdivision eighteen, section three of
laws of 1874, chapter y under which
IN particular the power claimed by respondent
is asserted. confers authority in terms "to es-
tablish public markets and other public build
lngs 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 inter
rupting or interfering with the due observance
of such rules and regulations"
This phraseology is so precise and specific as
to leave little If any room for construction to
arrive at the meaning and intention of the
legislature IN making the grant. The statute
is its own best expositor. The power ito
plies both to "public markets and to
'.other public buildings 1t is
the same in each. The use of the word other
shows that markets was used in restricted
sense to designate public buildings erected and
devoted to the use of receiving for sale and
purchase such marketable articles for daily use
and consumption as might be wanted to sup
ply the inhabitants of the city. This of course
would include the sites for the buildings and
grounds adjacent used for market purposes.
To establish public market in this sense is
to designate and provide by purchase or other
cito and e. Sbo 4