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(125 Wash. 72, 215 Pac. 518.) eration of laundries to certain dis- v. Seattle, 59 Wash. 363, 40 L.R.A. tricts of the city, or forbid their (N.S.) 647, 109 Pac. 1067, we upoperation within a certain distance held a municipal ordinance prohibfrom any church, school, or hospital. iting private sanitariums being Walcher v. First Presby. Church, 76 maintained within 200 feet of any Okla. 9, 6 A.L.R. 1593, 184 Pac. 106; other building without the written Re Hang Kie, 69 Cal. 149, 10 Pac. consent of the owners of such neigh327; Ex parte Quong Wo, 161 Cal. boring property. In Spokane v. 220, 118 Pac. 714; and other cases Camp, 50 Wash. 554, 126 Am. St. cited in the note to Walcher v. First Rep. 913, 97 Pac. 770, we held valid Presby. Church, supra.

Other an ordinance forbidding the keeping courts have held that ordinances of livery stables within certain disconfining the operation of laundries tricts. to certain districts within the city We are unable to see how § 11 of were invalid, because unreasonable. the ordinance in question has any Stockton Laundry Case (C. C.) 26 reasonable relation Fed. 611; Re Hong Wah (D. C.) 82 to the public health, Municipal corFed. 623, and other cases found in comfort, morals, or nance prohibitthe note to Walcher v. First Presby. welfare. There is

ing auctions

validity. Church, supra. In Standard Oil Co. no testimony before v. Kearney, 106 Neb. 558, 18 A.L.R. us to show wherein the ordinance 95, 184 N. W. 109, it was held that might tend to accomplish these puran ordinance prohibiting the opera- poses, and we are left to determine tion of gasolene and oil stations the matter upon

the matter upon suggestions of close to the street, but on private counsel and our own knowledge of property, within certain districts of such affairs. It is said in appelthe city, was unreasonable and void. lants' brief that an auction held in In the case of People v. Gibbs, 186 the buildings located on the business Mich. 127, 152 N. W. 1053, Ann. streets of the city tends to attract Cas. 1917B, 830, an ordinance pro- crowds and thereby obstruct the hibiting auctioneering at any time sidewalk. But there are innumerother than between the hours of 8 able things which time and custom A. M. and 6 P. M. was unreasonable, have led us to believe are perfectly as not having relation to the health, legitimate means of carrying on comfort, and welfare of the public. business, which tend to attract Substantially the same holding was crowds and interrupt, more or less, made in the case of Hayes v. Apple- the easy flow of the pedestrians on ton, 24 Wis. 542. In Buffalo v. Ma- the sidewalks. Any attractive disrion, 13 Misc. 639, 34 N. Y. Supp. play in the show windows of a mer945, a municipal ordinance prohib- chant will accomplish this; yet no iting auctioneering of watches after person, it seems to us, would say 6 P. M. was held to be a valid regula- that such display might be prohibtion. In White v. Kent, 11 Ohio Si. ited. Any merchant who publishes 550, an ordinance prohibiting pub- information to the public that on lic sales upon the streets, sidewalks, certain days he will sell his goods and public places of a certain mu- at unusually cheap prices will also nicipality was upheld, as being rea- attract crowds to his store and thus sonable. In Ex parte Hadacheck, interfere, to some extent, with the 165 Cal. 416, L.R.A.1916B, 1248, use of the sidewalks and probably 132 Pac. 584, a municipal ordinance create some unusual stir and noise. forbidding the operation of brick- But no case is, or, we think, can, be kilns within a restricted area was cited, which sustains an ordinance held valid; and in Re Montgomery, which would prohibit such manner 163 Cal. 457, 125 Pac. 1070, Ann. of doing business. Of course, ordiCas. 1914A, 130, a like holding was nances tending to regulate and conmade with reference to the opera- trol the crowds which might be tion of a lumber yard. In Shepard thus or otherwise attracted may be passed and enforced. Indeed, one unlawful interference with the freesection of the ordinance in question dom of trade, and that the ordinance here expressly provides that no auc- is for that reason void." tioneer shall unduly cause the It seems to us that an ordinance streets or sidewalks to be blocked, forbidding auctioneering after sunbecause of carrying on his business. down is much more reasonable and It was well said, in the old case of necessary in its regulation than $ 11 Hayes V. Appleton, supra: The of the ordinance under considerapower of the common council, there- tion; for it is well known that fore, extends only to the making of crimes are committed more easily regulations that are for the good of under cover of darkness than durthe city. They must be such as ing the daytime. Those cases conprudence and reason require, not cerning ordinances restricting to unnecessarily prejudicial to private certain designated limits such busirights and interests, and not incon- nesses as laundries, livery stables, sistent with the laws of the state. cemeteries, etc., are justly upheld on It is not shown in the case what evil the ground of public health. The was to be prevented or good promot- ordinance which the Nebraska sued by the passage of the ordinance preme court held unreasonable in in question; nor can we judicially

Standard Oil Co. v. Kearney, supra see that any restriction of the kind (prohibiting gas filling stations was necessary. No cause for it, within certain defined districts of a whether good or bad, is even sug- city), has a much greater relation gested in the brief submitted by to the public than the one we are counsel for the city; and it is impos- considering, for there automobiles sible for us to conjecture that any would be required to frequently sufficient one existed. We can read- cross over the sidewalk to get to the ily conceive that there might be filling station, thus causing incontimes and circumstances when the venience and creating some danger exercise of such restraining power to users of the sidewalks. An ordimight be necessary and proper. If, nance prohibiting the operation of a for example, in times of great pop- brickyard at a certain locality in a ular excitement and tumult, the as- city was upheld in Ex parte Hadasembling of people in considerable chek, supra, on the ground that the numbers at auction rooms and such burning of brick is a trade which places after sundown might lead to may, when conducted in close proxriots and disturbances of the public imity to dwelling houses, be so ofpeace, the restriction would un- fensive to those residing in the vidoubtedly be lawful. And so, too, cinity as to constitute a nuisance," might be proper to restrain such because of the smoke and offensive sales on particular days or at partic

odors. ular places; or, if the manner of The appellant places great reliconducting them was particularly ance upon the case of People ex rel. objectionable, to prescribe how they Schwab v. Grant, 126 N. Y. 473, 27 should be conducted. . The N. E. 964. There is a wide distincselling of property at public auction tion between that case and the one being a lawful business, so recog- here, because the ordinance there nized by the statutes of the state, did nothing more than require aucand the prohibition in question be- tioneers doing business in the city ing general in its character, re- of New York, to obtain a license, straining the transaction of such pay certain license fees, and give business at particular hours during certain bonds. We do not for a moeach day when it is customary ment question the reasonableness of throughout the country to transact such an ordinance. It is, indeed, it, and having been enacted without very directly conducive to the pubany sufficient cause shown, it fol- lic welfare that there should be lows that it is an unreasonable and some regulation affecting the char

(125 Wash. 72, 215 Pao. 518.) acter of the persons who shall be less freedom of action than if they , permitted to exercise the business lived in the country. If the purpose of auctioneering, because of the su- of § 11 of this ordinance were to perior opportunities such persons prohibit one from carrying on the have of deceiving and defrauding distinct and permanent business of the public who deal with them. auctioneering over long periods of

The holding of an auction sale in time in the district described, then a store within the business districts a different question might be preof the city cannot seriously relate to sented, but § 11 is infinitely broader the public health, or probably even

than that. to the public morals or welfare, and We conclude that the portion of it can only indirectly relate to the the ordinance which we have quoted public convenience. But it must be is unreasonable and therefore unenremembered that those who choose forceable. to go to cities to live must be con- The judgment is affirmed. tent to be crowded, and to accommo- Main, Ch. J., and Mackintosh and date themselves to less space and Mitchell, JJ., concur.

ANNOTATION.

Regulations affecting auctions or auctioneers.

• I. In general, 299.

II. Municipal power to regulate, 300.
III. What constitutes sale at auction, 301.
IV. Regulation other than requirement of

license, 302.

V. Licenses:

a. In general, 304.
b. Persons eligible to license, 304.
c. Grant or revocation of license,

305.
d. License tax or fee, 306.

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1. In general.

Richhart (1916) 139 La. 446, 71 So. An auction sale is not of itself a 735. nuisance, Gilly v. Hirsh (1909) 122 Maryland. Mogul v. Gaither La. 966, 20 L.R.A.(N.S.) 972, 48 So. (1923) 142 Md. 380, 121 Atl. 32. 422.

Michigan. - People v. Gibbs (1915) When rightly conducted, the busi- 186 Mich. 127, 152 N. W. 1053, Ann. ness of an auctioneer is not only Cas. 1917B, 830. legitimate, but a useful and important Minnesota. State ex rel. Cook v. line of vending. People v. Gibbs Bates (1907) 101 Minn. 301, 112 N. (1915) 186 Mich. 127, 152 N. W. W. 67; Minneota v. Martin (1914) 1053, Ann. Cas. 1917B, 830.

124 Minn, 498, 51 L.R.A.(N.S.) 40, The business of auctioneering is a 145 N. W. 383, Ann. Cas. 1915B, lawful and useful one, and, while it 812. is open to legislative regulation, the Nebraska. Caldwell v. Lincoln power to regulate does not include (1886) 19 Neb. 569, 27 N. W. 647. the power to prohibit. Wright v. May New Jersey.--Margolies v. Atlantic (1914) 127 Minn. 150, L.R.A.1915B, City (1901) 67 N. J. L. 82, 50 Atl. 367. 151, 149 N. W. 9.

New York. Rochester v. Close The business is, however, a legiti- (1885) 35 Hun, 208; Buffalo v. Marion mate subject of regulation to prevent (1895) 13 Misc. 639, 34 N. Y. Supp. abuses and frauds.

945; Robinson v. Wood (1922) 119 California.—Ex parte Bruce (1921) Misc. 299, 196 N. Y. Supp. 209; 54 Cal. App. 280, 201 Pac. 789.

People ex rel. Schwab V. Grant Illinois. Wiggins v. Chicago (1891) 126 N. Y. 473, 27 N. E. 964. (1873) 68 Ill. 372.

North Carolina. State y. Razook Indiana, Goshen v. Kern (1878) (1920) 179 N. C. 708, 103 S. E. 67. 63 Ind. 468, 30 Am. Rep. 234.

Virginia. - Roanoke v. Fisher Louisiana, Charity Hospital v. (1923) - Va. 119 S. E. 259.

II. Municipal power to regulate. mayor and board of councilmen the

The power to license auctioneers power to provide by ordinance “for was said in an early case not to be licensing, taxing, and regulating aucone of the incidents of a municipality, tions,” there can be no doubt about and to exist only as conferred by stat

their authority to prohibit persons ute and within the limitations fixed from exercising the business of aucby the statute. Fowle v. Alexandria tioneers without license, by such fines (1830) 3 Pet. (U. S.) 398, 7 L. ed. or penalties as they may think proper 719. See to the same effect, Mankato to impose. Willis v. Boonville (1859) v. Fowler (1884) 32 Minn. 364, 20 28 Mo. 543. N. W. 361.

A charter power to "regulate the A charter containing no reference ringing of bells, and the crying of to auctions except the grant of a goods and other commodities for sale power to regulate the sale of houses at auction or otherwise, and to prevent at auction gives no power to regulate disturbing noises in the streets," the sale of merchandise at auction. does not authorize a prohibition of the Ex parte Martin (1872) 27 Ark. 467. sale of jewelry at auction after sunIn Wiggins v. Chicago (1873) 68

down. Rochester v. Close (1885) 35 Ill. 372, it was said:

“The power

Hun (N. Y.) 208, wherein it was conferred by the charter to tax, li- said: "We think the statute does not cense, and regulate auctioneers au- confer any authority on the council to thorized the city to adopt any reason

regulate or prohibit a sale of goods able ordinance for the purpose. The

at auction within the store or build-. charter points out no particular mode.

ing of the seller, but that it relates The city may tax, may license, and

solely to the manner or custom of may regulate the business of auc

advertising a sale by public outcry, tioneers. The city may not directly

and authorizes the council to regulate prohibit the business, nor can it adopt

that custom or manner of advertising, such unreasonable regulations

but not to interfere in any manner

as would produce such results, or even

with the sale, whether at auction or be oppressive and highly injurious to in any other manner adopted by the the business. All means employed for

seller." the taxation, licensing, and regula

An ordinance prohibiting auction tion of the business must be reason

sales after sundown is invalid where able."

the charter provides that the ordiThe general welfare clause and the nances, rules, and by-laws shall be general power over streets warrant for the government and good order of a prohibition of auction sales on the the city, for the suppression of vice, streets or sidewalks. White v. Kent the prevention of crime, and for the (1860) 11 Ohio St. 550.

benefit of the health, trade, and comThe general welfare clause in a merce thereof. Hayes v. Appleton charter has been held to warrant an

(1869) 24 Wis. 542. The court said: ordinance forbidding the sale of

“It is not shown in the case what jewelry by auction at night. Roanoke

evil was to be prevented or good prov. Fisher (1923) Va. 119 S. E. moted by the passage of the ordinance 259.

in question, nor can we judicially A charter power to regulate auc

see that any restriction of the kind tion sales includes power to prohibit

necessary. No cause for it, the sale of watches and jewelry at

whether good or bad, is even sugauction. State ex rel. Cook v. Bates gested in the brief submitted by (1907) 101 Minn. 301, 112 N. W. 67. counsel for the city, and it is impos

A charter power to "restrain or sible for us to conjecture that any prohibit” auction sales authorizes a sufficient one existed. We can readirequirement of the licensing of auc- ly conceive that there might be tioneers. Deposit v. Pitt (1879) 18 times and circumstances when the Hun (N. Y.) 475.

exercise of some such restraining Where a charter confers upon the power might be necessary and proper.

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was

If, for example, in times of great than retail merchants usually do; yet popular excitement and tumult, the this fact is evident-he had a fixed assembling of people in considerable regular retail price on his goods, and numbers at auction rooms and such in no case sold them, or any part places after sundown might lead to of them, for more or less than his riots and disturbances of the public fixed regular retail price. The witpeace, the restriction would undoubt- ness says he refused to take an offer edly be lawful. And so, too, it might for them above his regular retail be proper to restrain such sales on price,' and only sold them when he particular days,

or
at particular

'received an offer of purchase at places; or, if the manner of conduct- said price.' As his sales excluded all ing them was particularly objection- competitive bidding, he in no criminal able, to prescribe how they should be sense exercised the trade or occupaconducted. But in these, and all like tion of auctioneer, and we fail to cases, the reasons for the restriction discover wherein he was shown by must be shown in proof. The court the proofs to have violated the provicannot take judicial notice of them.” sions of the statute. His method and

A charter power to regulate auc- manner of selling his property may tions does not warrant an ordinance have violated good taste, but as he forbidding the sale by auction in the fixed his own price upon his property, public markets of commodities which and that price was his customary remay properly be sold there. Bollan- tail price, he did not exercise the der v. Ottawa (1899) 27 Ont. App. trade and occupation of auctioneer,' Rep. 335.

who is defined to be 'a person who In an early Missouri case, Simpson disposes of goods or lands by public v. Savage (1823) 1 Mo. 359, it was sale to the highest bidder.'” See to held that a grant to a municipality the same effect, Hibler v. Hoag (1841) of power to license auctioneers did 1 Watts & S. (Pa.) 552, wherein it not preclude the legislature from was said: "In the instance under passing an act requiring license, so consideration, there was no bidding that, thereunder, both a state license at all; the property being offered, and a municipal license were neces- once and for all, to anyone who would sary.

take it for the sum named. What As to municipal power to tax or im- else does the ordinary retailer, except pose license fee, see infra, V., d. that he does not proclaim his price

aloud, or take the same measures to III. What constitutes sale at auction.

attract the public attention? He Competitive bidding is the essence waits to be wooed. Was this a sale, of an auction, and one who sells by ther, within the words of the statpublic outcry, but at fixed prices, is ute, by public vendue or outcry? It not within a regulation of auction- is pretty clear from the ceaseless eers, Crandall v. State (1876) 28 tautology in the language of legislaOhio St, 479, wherein the court said: tive bodies that this word 'outcry' "The evidence in this case discloses was used, in this instance, as the that Crandall had a store in which he synonym of its predecessor; and that had dry goods and notions for sale; it was not intended to interdict a sale that upon his dry goods and notions by outcry, unless it were, at the same he had a regular fixed retail price. time, a sale by auction. What, then, It appears clear to us that the meth

is understood by an 'auction,' accordod adopted by him to dispose of ing to the usages of Pennsylvania ? his property did not in any degree It is a sale by consecutive bidding, involve public competition. In fact, intended to reach the highest price the competitive element that distin- of the article by competition for it; guishes auction sales from others was and such a sale the legislature cer. wholly wanting. He offered his goods tainly had in its view." for sale in an unusual manner, and Sale by a so-called “Dutch" auction, used louder language in their sale at which goods are put up at a fixed

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