Evening journal., 1913-10-28

knew that the markets were being con.
Quoted without any lawful grant or
power so TO do, and ereforo intended
to place them on lawful basif. In di-
rectine The Council 10 provide for the
regulation Of the farmers and truckers
agreeably TO the provisions of
this act, and 20 establish and regulate
the her markets stated, tho General
Assembly without doubt intended TO
make nugatory al other supposed regu-
latons then in existence and found in
the ordinance books. No ordinance was
passed after the date of this act. How
could an ordinance passed before the act
comply with the foregoing requirements
How could an ordinance passed before
tho act regulate the markets created by
the actg The General Assembly evi-
IDENTIFY thought the markets had no law
ful existence, and II created one market
and granted the power to The Council
10 establish Others. I am of the opinion
that the regulations intended TO be
meant hv the expression agreeahly TO
the provisions Of this act are such
regulations ~ were 10 be provided
after the passage of the act and that
those passed before the act were not in
tended by the General Assembly to
apply 10 the markets mentioned in the
act II follows that no prosecution can
be brought under any ordinances passed
before the date Of the supplemental act,
and, as neither The Council or the
Board OF Directors of the Street and
Sewer Department have passed or
adopted regulations in conformity with
tho act, no prosecution can be brought
except for . violation Of the provisions
contained in the supplementary act
Prosecutions Under Act.
Before leaving the subject Of prose
cutions Il seems TO me advisable 20 ad
vert 10 this subject.
1T is provided In the act that nc
one save a farmer or trucker shall oc
cupy tho market set apart exclusively
for farmers and truckers; but II is not
expressly made an offense II any Other
person should do so. and no penalty is
provided. Offences against certain Other
provisions Of the act are made misde
naanors and punishments provided. i
ia made the duty Of the City Judge
upon complaint that an offence has
been committed against any Of the pro.
there is probable ground for the ac-
cusation and, II 40, TO bind the accused
ior his appearance az the next term OF
thc Court Of General Sessions. What
can that court do with the accuscdy I'm
doubtcdly in the case supposed such
person would be guilty Of violating a
provision Of thc act Can the Court OF
General Sessions supply the omission
and fine or iinprson q guilty person!
There is mast respectable authority
which maintains that a penalty must he
expressly created and imuosed by stat
ute and cannot be raised by implication.
The Certificate or Perwit.
Counsel for the defendant raised
the question OF cstoppel, maintaining
that the city was cstopped TO revoke
a permit without first returning the
money paid by the defendant for the
space IN the market. This leads 10 "A
discussion OF the manner in which
/ the spaces are hold The old way
as before shown, WAS as landlord
aud tenant by a lease on certain
rental. The method now ig by a so
called Permit, Ia which is used thl
word lessee How "a this Permit
10 be considered in law? The stree
aud Sewer Department designate
the Permit Is a receipt which actc
as voucher for the person 10 us
the market spaces therein mentioned
but the receipt vs. called a Permit
and contains the word lessee
J Section 3 OF the supplementary
/ act authorizes and directs the Clcrl
Of the Market 20 issue a Certificate
for market spaces. which after the
sums OF money stated have been paid
shall entitle the holder to the free
use OF the space designated for one
year subject 10 all the provisions OF
this act and to such rules aud regu
lations as Council under this act
may prescribe
1T is clear that under the prov-
sions Of the act, the Certificate er-
ioneously called a Permit Is a IL
cense. The city is lioensor and the
holder or person to whom Il Is is.
sued, is the licensee. The old sys,
tenn Of renting the spaces is abro
kated by the statute. The rules o
llaw applicable generally to licenses
4 severn. Ono Of these rules which Il
supported by tho greater weight o
authority Is that a license. cvel
, coupled with an interest. as IN thi
case, is revocablo. The question can
not however properly be raised j
q this case. The prosecution ia thi
case Is based ON a violation of the Law
@ The charge Is, in effect. that tue do
4 fendant occupied stand or space /
(. q market 10 be used exclusively fc
!, farmers and truckers. he not bein
either farmer or trucker. Il is u,
: an action either TO revoke tho perm
. OF to oust him from the space. Tn
I defendant could only use the spa,
n 'agreeably to the provisions of Il
3 act etc. The prosecution is based {
the imprope. and alleged unlawfr
) use of the space. not to prevent u
n use of the space lawfully. The d
fendant az any time can use the SPA
= by complying with the law. It cam
\ be contended that the defendant
any other person can obtain cert
. hcate which is 10 be used as directs
= by law and then claim a right
use the space for an unlawful pu
pose and when arrested for such u
q lawful use set mp that the city
4 estopped to prosecute him for sul
unlawful use. A state or city ca
b. not be estopped from enforcing
q criminal. quasi-criminal, or pen
: law under a claim that a certifica
is issued 70 a person 10 do a lawf
thing entities such person to do
j, unlawful thing.
"T have entered uDOn This diecusSfl