The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1901-08-08

lated
The complaint charges that W. l.
Dickey did associate himself with
divers and sundry other persons, firms
and corporations for the purpose of
creating and maintaining certain re-
strictions in the manufacture and sale
of ice to the citizens of Topeka, and
for the purpose of preventing competi-
tion in the manufacture and sale there
of. This is a sufficient allegation un-
der the ordinance to charge the defend
ant of being guilty of a violation of the
ordinance.
The next question is of more i'm
portance and strikes at the validity of
the ordinance. The question whether
the city of Topeka has the power to
pass such an ordinance is by no means
an easy one.
implied powers but can exercise such
powers only as are conferred by law,
is a proposition so well settled that it
admits of no question. It does not
follow, however, that the thing ques-
toned must be specifically named in
the charter of the municipality in order
to confer the right to deal with it.
Subdivision 8 of paragraph 555 Gen
Stat, 1889, gives the city power to reg
ulate any and all callings
or businesses whatever. Under this sub
division, the supreme court held in
Kansas City VS.. Grubel, 57th Kas 436,
that cities of the first class may reg
ulate any and all callings trusts, pro-
fessions and occupations carried on
of the same paragraph, Gen. Stat
provides that all needful police regula-
tions necessary for the preservation,
good order and peace of the city Con-
STRUNG these subdivisions together
the city has ample power to enact any
ordinance not inconsistant with the
constitution and laws of the state that
has for its object the maintenance of
peace good government and general
welfare of the inhabitants of the city,
and to direct the commerce of said city,
AZ -~GT 44E.
Kan. 607, Mr.. Justice Johnston, speak
ing for the court said: Every statute
of the state shows the solicitude of the
law to protect the health and morals
of the people and preserve the peace
and good order of the communities, and
it is manifest that the legislature in
tended that ample authority should be
conferred, either by express grant or
by virtue of the general powers, to
carry out this purpose. Instead of
specifically defining every regulation
which might be necessary to the health,
safety, peace and convenience of the
public, the legislature enacted the gen
eraI welfare clause, and it seems to us
that it furnishes sufficient authority
for the council to pass an ordinance so
clearly in the interest Of peace, good
order and health as the one in ques-
ton" In that case, the validity of an
ordinance. enacted by a city-Of the sec
ond class was under discussion, and
while paragraph 824, Gen. Stat. 1888,
designated as the general welfare
second class, it will hardly be contend
ed that the legislature intended to con-
fer greater powers on cities of the sec
Ond class than on cities of the first
class. While the language used in the
charter Of cities of the second class is
somewhat different from that used lin
that Of cities of the first class. yet
it can hardly be questioned that the
language used in the two subdivisions
above referred to confers ample power
to cities of the first class to pass or
dinances to regulate business and for
the general welfare of the citizens
therein.
The ordinance In question is not an
tagonistic to the statutes of the state,
cord with them. Chapter 265, Laws of
1897, prohibits the formation of any
trust or combination which shall re-
strict the full and free pursuit of any
business authorized or permitted, or to
increase or reduce the price Of any
merchandise, produce or commodity
within the state The extraordinary
remedy provided for in section 10 of
that act is not a general limitation of
Jurisdiction. but applied only to such
extraordinary process as is therein
provided for. It is a well settled rule
of law that every possible presumption
Is in favor of the validity of legisla-
tfon, and this presumption continues
until the contrary is shown beyond any
doubt
1t is not absolutely clear that the
city has authority to enact ordinances |
to regulate or restrict combines, but
the ordinance under consideration was !
regularly enacted by the city council |
and received approval of the mayor. |
Therefore this court will not strike
lation unless it appears that it is clear |
ly beyond the power of the city to |
enact such ordinances.
The next question is whether the de- /
fendant entered into an arrangement |
with any other firm, person or corpora |
ton to maintain certain restrictions in |
the manufacture and sale of ice to the |
citizens of Topeka and for the purpose /
of preventing competition in the manu- I
facture and sale thereof There is no I
direct testimony showing that any t
such arrangement was entered into by I
the defendant between the 11th and the I
oath days of July, 1901 the date of pub +
lfcation of the ordinance and the date |
of fling the complaint herein. In Green |
leaf on Evidence. volume 3, paragraph |
80, the author lays down this PROPOSE
ton: 1.-The evidence in proof of a con-
spiracy will generally, from the nature
of the case, be circumstantia1. Though
the common design is the essence of the
charge, it is not necessary to prove that
the defendants came together and act
ually agreed in terms to have that de-
sign and to pursue 1t by common
means. If it be proven that the de-
PENDANTS pursued by their acts the I
same object. often by the same means
one performing one part and another
another part of the same. SO as to COM
plete it with q view to the attainment
Of the same object, the jury will be JUS
titled in the conclusion that they were
engaged in a conspiracy to effect that
object"
It was established beyond question
that prior to July 11th. 1901, an ar
rangement was entered into by the de-
fendant with other persons to control i
the output of ice and to prevent COM
petition in the price therefor in the city
Of Topeka, and a condition of that
character once established is presumed
TO continue until a different condition |