The record-union., 1895-03-30
one class of citizens as against another

| important one, and as both sides have
presented numerous authorities in sup
port OF their position, have given the
| matter more than ordinary attention.
Section Of Article XI. of the Constitu-
ton OF the State provides that any city
may make and enforce within its limits
all such local, police, sanitary and other
regulations as are not in conflict with
general laws.
After diligent search of the statutes to
ascertain whether any general law exists
which Is in conflict with the ordinance
referred to, l was unable to find any.
on the other hand, the charter of the city
OF sacramento, the provisions of which
are valid unless found to be in conflict
with the Constitution or with general
laws, gives to the Board of Trustees of
the city power as follows:
10 license, tax, regulate, prohibit or
suppress hawkers and peddlers" (Subdi-
vision 10, Section 25); ito establish and
regulate markets" Subdivision l6. Sec
ton 25); ito prescribe fines, forfeitures
and penalties for the breach of any ordi-
nance" SUBDIVISION SO. Section 25): land
to make and enforce all other such police,
sanitary and other regulations as are not
IN conflict with general laws or of the
provisions of the charter" Subdivision
AZ, Section 25).
A municipal corporation possesses and
can exercise such powers as are granted
or which are necessary and fairly implied
IN the powers expressly granted. The
charter OF municipal corporation is It's
organic act. All acts beyond the scope of
the charter granted are void. q Dillon
Municipal Corporations, 8 ed. Sec. 89.)
The provisions of the ordinance re-
ferred to come within the express power
granted by the charter, and the ordinance
is valid unless by il such unusual and
burdensome restrictions are imposed
upon lawful business as would render
the ordinance void as being in violation
OF Section | of Article l. of the Constitu-
| ton. That section provides that all men
are by nature free and independent and
| have certain inalienable rights, among
which are those of acquiring, possessing
| and protecting property and pursuing
! and obtaining safety and happiness.
| That the Board of Trustees had the
| power TO pass said ordinance is supported
! by the general current of authorities "a
corporation may establish and regulate
markets, and may prohibit sales or pur-
chase of marketable articles except at
certain market places; it may do this
without any express grant of power"
| (23 Pick. ~. sit is clearly within the
| power of the Legislature TO delegate to a
municipal corporation the power TO es-
tabllsh public markets and 10 confine the
| sales of commodities which in consider
|
| spectlon and supervision of sucn market
| even II result OF the exercise of this
power should be the destruction of an
existing and long established business,
A bylaw prohibiting Inhabitants of a
! city or town in the vicinity who offer for
sale the produce of their own farms, etc.,
! from keeping any stand for the purpose
OF vending, ETC., in certain streets which
| are by the bylaw a part Of the market is
| valid" III Pick. l6S; Lawson's Remedies
and Procedure, 3992).
| 1t is claimed by the defendant that the
| ordinance Is unreasonable and in re-
straint of trade, and discriminating in
favor OF certain individuals. He cites a
number of cases and the facts stated
| therein, and in support thereof But it
| appears that they are all extreme cases
| and they were so palpably in violation
| OF the constitutional rights of citizens
| and the power of the Legislature to pass
such laws, that the court properly de-
| clared them invalid. As far as this ordi-
nance is concerned : it provides a suffl-
| cient market where the business as al
| legged herein may be CARRIED on and it
| does not seem TO give any greater ad-
| vantage to one class of citizens than an
| other, but rather puts them all upon a
level. In other words the ordinance
constitutes regulation and not a prohi-
bition OF the conducting OF such busi-
ness.
1t is evidently aimed against permitting
such business to be conducted by sales
made upon the streets-that is, such sales
as are commonly designated as hawking
and peddling. Ordinances restraining
hawkers and peddlers from their calling
are generally held TO be constitutionally
valid, both with reference 10 State and
National Constitutions; such laws OF
course must be uniform and not dis
crlmlnate IN IaEor OF one class as against
another" (9 American Encyclopedia OF
Law, page Bill
1t is the current of decision by our
courts that the States under their police
power may delegate municipal corpora
ton the authority TO establish or author
| lZe the esta abllshment of markets, and that
1t is competent for such CORPORATIONS
under such grants OF power to enact or
dlnances torbldding sales and purchases
of mark etabie articles except at desig-
mated market place. The extent OF the
! power possessed depends upon the char
ter. In England the regulation of mar
| kets by bylaws has long been exercised,
| and such bylaws are sustained as being
! reasonable and conducive 10 the health
and good government of the municipal
! ity. Il Dillon on Municipal Corporations,
/ 3 Ed, Section $780,
This power while it would not author
iZe corporation 10 entirely prohibit
/ sales within its limits, because this would
/ be in general restriction of trade, will
nevertheless authorize the passage of an
ordinance forbidding the hawking about
or selling by retail except al public mar
ket and within certain limits established
/ by ordinance" ID, Section $780,
Again, IN relation TO the power Of the
city establishing market-plaCes and regu-
lating the sale of articles mentioned
herein, it comes within the power of the
corporation to regulate those matters in
the way of street regulations. The streets
belong 10 The city, aud 1t has the right to
prevent anything that would in its ma
iure tend TO obstruCt or impair the free
passage OF the streets or mar its beauty,
and il the city did not have that power
what would be there to prevent persons
standing their teams loaded with wood al
ali hours OF the day on our paved streets
j and X streets, from Second TO Tenth
streets? What an uusightly object il
would present.
From a very careful examination of all
of tho various authorities which have
been presented to me in this case. and all
others that l have found myself | find il
10 be the general rule that municipal cor
porations may establish and regulate
mark et-places, as is intended in this or
dInauCe. Had l any doubt in this case,
however, as TO the eonstitUtionalily OF
this ordinance l would follow the rule
laid down in Section 1859 OF the Code OF
Civil Procedure. which reads as follows:
in the construction of a statute the in
tentiOn OF the Legislature, and IN the
construction OF an instrument the inten-
ton OF the parties, is 10 be pursued, If
posslblei aud when q general and a par
licular provision are inconsistent, the
latter is paramount 10 the former"
So q particular intent viii control q
/ general one that is Inconsistent with it.
This provision is supported by a we'll