Grant County herald. [volume] (Lancaster, Wis.) 1850-1968, 1893-04-06
JUDGE cLEMENTsoN's
Decision In the Case of the CITY Of lancaster
vs.. ". X. Togo

The defendant was convicted in a iustice rom.
OF having violated an ordinance OF the CITY Of
sneaster BY selling goods on street OF til
CITY without license. and was fned ten dollars
and costs. He brings the case into this court bv
appeal.
The ordinance in question provides that
EVERY person desiring to sell or expose for
sale. in any msnner. any goods, wares, merchan-
disc, game, poultry. fresh meat vegetables, fish,
butter, eggs or other provisions in the streets or
other public grounds within the fIcorporats
limits Of the city Of Lancaster. shall pay to the
city treasurer OF said city Of Lancaster, ten dol
lars for every day or part of Gay that he may
so desire 10 sell or offer for sale any Of the good
wares, merchandise. game. poultry, fresh meat.
vegetables, hsh, eggs or other provisions SIS
Aforesaid and the ordinance further provides
that any one violating it shall be punished by
hne OF not less than ten dollars nor more than
twenty-five dollars, or ny Imprisonment for
limited number Of days in the county jail.
The city OF Lancaster is municipal corpora
ton, municipal corporation il a creature of the
legislature and has such powers only as are
bestowed upon il by the law that incorporates it.
II cannot exercise any powers fnot expressly
giyer or necessarily and fairly within the scope
and import Of those delegated by its charter and
the general rule lie that corporate powers should
be strictly construed. IF there be a fair. reas
enable ana substantial doubt whether the legis-
lature intended 10. convey particular authority
TO the corporation especially il the authority be
one the exercise Of which imposes burden or
or tax, o. sbridges personal liberty, the doubt
viii be resolved against the corporation and in
favor q the citizen"
The ordinance in question il authorized at all
by any provision Of the city charter (Which is
chapter 92-laws Of 1891 is authorized by sub
division 80 Of section 30 which provides that til
common council shall have the power by ordi-
nance, resolution, or by law ITO regulate ami
license butchers, butchers shops and meat
markets, and to regulate license Eand restrain
the sale Of any goods, wares, merchandise. game.
poultry, fresh meat, vegetables, fish, butter,
eggs aud other provisions, in the streets aud
other public grounds OF the city"
"There is no question but thatIthe legislature
has supreme control over the highways ana
streets of the towns villages and cities Of the
state and It may be admitted that it can dele
gate city the power to place any restrictions it
fit upon traaic upon is streets to the extent
even, of absolutely prohibiting the sale of any
thing whatever thereon. This being conceded
the decision Of this case must turn upon the
part OF said section above quoted, and in partic-
ular upon the construction of the words ITO reg
ulste license and restrain"
First regarding the word license, for 1t will
be convenient to consider theIwords regulate"
and RESTRAIN" together. That the power given
TO municipality to license does not involve the
authority TO prohibit is doctrine well estab
lshed. know OF but one exception to this
rule and that is where power is given TO the au
thorities OF town, village, or city, TO license
the sale of intoxicating liquors it has been held
that they may refrain entirely from granting
license and thus prohibit gsuch sales. This ex-
ception springs from the disposition of the
courts to curtail traffic which is regarded as an
evil such being the rule it follows that fee
cannot be required for a license to sell goods,
farm products aud the like that Il so large as to
be prohibitory.
power to license is not power TO tax for
revenue Nothing contained in this clause Of
the charter gives the right 80 tax There are
Other clauses Of the charter!that give the right
to tax certain callings sand the Withholding by
the Legislature Of the power to tax sales of the
kind in question emphasizes The conclusion that
they cannot be taxed. 1t is well established
that where the power conferred is to license and
not also to tax it is power simply to regulate.
and the license fee should not exceed the neces.
sary or proper expense Of issuing the license and
probable expense ofthe city I'M police supervision
Of the traffic licensed,
The power to regulate does tuot confer the
power Il license or exact fee. As used in this
clause it authorizes the city 10 prescribe by orti
nance reasonable regulations for the selling Of
the articles mentioned on the streets o. the citv
For instance, it gives the right to forbid sales n
particular streets or parts OF streets where such
traffic would likely impede travel and create
nuisance. and to prescribe Areasonabe hours
when and only when such sales shall be allow
able. The power to regulate bysno means gives
the right to prohibit Restrain" is stronger
word than regulate. In its ordinary acceptatior
restrain imparts the right to hold back-to limit.
II has been held to give the right to prohibit
when from the context such was evidently The
sense in which 1t was used by the legislature
But as used in the part OF the section am con-
sjderfng il does not give the right TO prohibit
and is little il any stronger than its fellow word
regulate This is evident when we read other
subdivisions Of section 80, for we readily see
from them that where the legislature intended
To give the city the right to prohibit Or suppress
words expressly conveying that intention were
used For instance, the common council il
Given the right, ITO license. tax regulate sun.
nress or prohibit billiard or other sbaD tables
e,e ITO license, tax regulate, suppress and
nrohibit ali exhibitions Of common showmen :,
etc, 80 restrain, prohibit and suppress all
Of gambling TO restrain. regu
lst, or prohlht the running at large Of cattle :,
etc The sale Of gooLs, meat, vegetables. butte
..,.,s and the Ike il not only lawful but neees
sary traffic. 1t has been customary 10 make
.ncb sales on the streets Of cities and villages
!, nav he granted as ] have before said thst
Inc LEGISLATURE can give authority 10 city Ia
art,relv prohibit such sales upon It's streets nut
hofare i court can say that il has done "a II
,ast 10 able to read in the charter the clear ~
,,,ession Of this intention Certainly snch n.
tantion il not expressed by the. words license
regulate and restrain"
Tho req lirement OF a fee OF ten dollars 10, a
5sv ar mart OF a day OF one who wishes 10 san
wool wheat. oats. vegetables, meat butter q,
eoes upon the streets, and making it a m,.de
roesnor to sell without first paying such fee ia