The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-08-18
TO Be STOPPED TONIGHT
The Quaker Doctors Were Not
Arrested Yesterday.
ORDINANCE NOT IN EFFECT
A Similar Measure Passed by the City of
Walla Walla and Pronounced
as Binding by the SUI
preme Court.


that they will be stopped tonight I'M
less they pay the $50 license required
of them by the ordinance which passed
the council Wednesday evening. Under
the law an ordinance, to be effective,
must be published once in full in the
Official paper. and that could not be
done yesterday. 1t is probable that ar
rests will be made tonight
The ordinance passed by the council
is almost identical with one passed by
the city council of Walla Walla, Wash,
last fall in regard to the same concert
outfit of doctors. The matter was car
red to the supreme court and the de-
ciSiOn was made that the ordinance is
all right. So If it is good in Washing
ton there is little doubt that it will be
found good in Montana.
The title of the case in Washington
is city of Walla Walla VS.. Ferdon, and
the decision was rendered by the SUI
preme court of Washington on June 20
last. The substance of the decision is:
"A town ordinance requiring travel
ing vendors of drugs and nostrums,
who accompany the offer of their goods
for sale with public exhibitions in the
streets, to pay a license fee of $50
day is not invalid, as being unreasona-
BILE or extortionate."
The appeal was from the superior
court Thomas H. Brsnts. judge. James
NJ. Ferdon was convicted of violating a
city ordinance and he appealed. In the
decision the ordinance is quoted, being
substantially the same as the one
passed by the Butte council on Wednes-
day night. The court recites that in
Walla Walla on Sept. 2S. 1898, the de-
PENDANT by proclamation and y,ublic
cutlery offered to sell and sold a bottle
of medicine prepared and recommended
to cure diseases and ailments without
having procured any license; that the
defendant was travelling from city to
city engaged in the business of selling
medicines in the same manner as this
sale was made, and that it was the
practice of the defendant to give con-
cert entertainments for the purpose of
attracting people for the sale Of the
said medicine. 1t is urged by counsel
for appellant that the ordinance is un-
reasonable in demanding an extortion-
ate sum for the license. On this point
the court cites the city of Grand Rapids
vs. Brandy. 105 Mich: Courts cannot
interfere with legislative discretion and
are slow to declare ordinances invalid
because unreasonable, when the power
to legislate upon the subject has been
conferred upon the council. The coun-
cil's discretion, and not the courts,
must control. In such matters the city
duCnDTltleS are usually bSltSl
than the courts
TT is maintained by counsel for APP
pellant that the ordinance provides for
regulation and license and not for
tax 1t is not deemed necessary, how
ever, in the determination of the case
to discuss or conclude how far the city
may tax the ordinary lines of business
conducted in the city under the author
ity conferred by its charter. While a
municipal corporation may not arbl-
trarily declare a lawful trade or bust
ness a nuisance, yet the manner or con-
Quoting it may be regulated and 1t may
be licensed when so regulated. But it
cannot be said that the sale of drugs
and nostrums by public cutlery and &C
companied by concert comes within
the class of useful trades or employ
ments; but rather it falls within an
other class where under the authority
to regulate and license a substantial
revenue may be incidental to the license.
The defendant held a license as auc-
tioneer and also for a show or exhibit
ton. His counsel therefore MAINTAIN
that as a Snowman he could attract
people, and as auctioneer he could Vend
drugs and nostrums and that because
there was 70 license required for the
sale of drugs in the usual manner by
drug stores there is discrimination in
the ordinance. But we cannot clearly
perceive the force of this contention.
The sales made by defendant would
a mass of people-perhaps obstruct the
streets and become noisy and offensive
to good order and require more or less
police supervision. There is a material
difference between the ordinary dispen.
sation of drugs through a drug store
and these noisy sales by public cutlery.
And while the sale of drugs is legiti-
mate business or trade, it is one pecul-
iarly subject to regulation by the gen.
of he to lifipa-
tionS are required of the pharmacist
who compounds and dispenses them, as
also physicians who prescribe them;
and it cannot be said tnat the public
welfare of the city of Walla Walla re-
quires the sale of nostrums in the man
ner carried on by defendant. 1t APP
pears that the license for circus and
menagerie is $500 per day according to
a city ordinance. We do not see very
clearly how the court can assume with
out any further showing before 1t that
the license fee of $50 per day imposed
upon the public sale by cutlery of drugs
and nostrums with an accompanying
show is more unreasonable than
license of $500 per day upon a circus.
The defendants business is evidently
transient. His various attractions are
for the purpose of calling together
large crowd and the disposition of as
large a quantity of his nostrums in as
short a time as it can be done; and
license fee which would be prohibitory
on a permanent business. perhaps.
would not be onerous on the transient
business conducted by the defendant.
In accord with the current of accepted
authority the court cannot pronounce
the ordinance invalid unless it is plainly
unreasonable; and with the lights here
it is not prepared to come to the con-
clusion that it is unreasonable The
Judgment of the superior court is there
fore affirmed