eration of laundries to certain districts of the city, or forbid their operation within a certain distance from any church, school, or hospital. Walcher v. First Presby. Church, 76 Okla. 9, 6 A.L.R. 1593, 184 Pac. 106; Re Hang Kie, 69 Cal. 149, 10 Pac. 327; Ex parte Quong Wo, 161 Cal. 220, 118 Pac. 714; and other cases cited in the note to Walcher v. First Presby. Church, supra. Other courts have held that ordinances confining the operation of laundries to certain districts within the city were invalid, because unreasonable. Stockton Laundry Case (C. C.) 26 Fed. 611; Re Hong Wah (D. C.) 82 Fed. 623, and other cases found in the note to Walcher v. First Presby. Church, supra. In Standard Oil Co. v. Kearney, 106 Neb. 558, 18 A.L.R. 95, 184 N. W. 109, it was held that an ordinance prohibiting the operation of gasolene and oil stations close to the street, but on private property, within certain districts of the city, was unreasonable and void. In the case of People v. Gibbs, 186 Mich. 127, 152 N. W. 1053, Ann. Cas. 1917B, 830, an ordinance prohibiting auctioneering at any time other than between the hours of 8 A. M. and 6 P. M. was unreasonable, as not having relation to the health, comfort, and welfare of the public. Substantially the same holding was made in the case of Hayes v. Appleton, 24 Wis. 542. In Buffalo v. Marion, 13 Misc. 639, 34 N. Y. Supp. 945, a municipal ordinance prohibiting auctioneering of watches after 6 P. M. was held to be a valid regulation. In White v. Kent, 11 Ohio St. 550, an ordinance prohibiting public sales upon the streets, sidewalks, and public places of a certain municipality was upheld, as being reasonable. In Ex parte Hadacheck, 165 Cal. 416, L.R.A.1916B, 1248, 132 Pac. 584, a municipal ordinance forbidding the operation of brickkilns within a restricted area was held valid; and in Re Montgomery, 163 Cal. 457, 125 Pac. 1070, Ann. Cas. 1914A, 130, a like holding was made with reference to the operation of a lumber yard. In Shepard

v. Seattle, 59 Wash. 363, 40 L.R.A. (N.S.) 647, 109 Pac. 1067, we upheld a municipal ordinance prohibiting private sanitariums being maintained within 200 feet of any other building without the written consent of the owners of such neighboring property. In Spokane v. Camp, 50 Wash. 554, 126 Am. St. Rep. 913, 97 Pac. 770, we held valid an ordinance forbidding the keeping of livery stables within certain districts.

We are unable to see how § 11 of the ordinance in question has any reasonable relation

porations-ordi

ing auctionsvalidity.

to the public health, Municipal corcomfort, morals, or nance prohibitwelfare. There is no testimony before us to show wherein the ordinance might tend to accomplish these purposes, and we are left to determine the matter upon suggestions of counsel and our own knowledge of such affairs. It is said in appellants' brief that an auction held in the buildings located on the business streets of the city tends to attract crowds and thereby obstruct the sidewalk. But there are innumerable things which time and custom have led us to believe are perfectly legitimate means of carrying on business, which tend to attract crowds and interrupt, more or less, the easy flow of the pedestrians on the sidewalks. Any attractive display in the show windows of a merchant will accomplish this; yet no person, it seems to us, would say that such display might be prohibited. Any merchant who publishes information to the public that on certain days he will sell his goods at unusually cheap prices will also attract crowds to his store and thus interfere, to some extent, with the use of the sidewalks and probably create some unusual stir and noise. But no case is, or, we think, can, be cited, which sustains an ordinance which would prohibit such manner of doing business. Of course, ordinances tending to regulate and control the crowds which might be thus or otherwise attracted may

be passed and enforced. Indeed, one section of the ordinance in question here expressly provides that no auctioneer shall unduly cause the streets or sidewalks to be blocked, because of carrying on his business. It was well said, in the old case of Hayes v. Appleton, supra: "The power of the common council, therefore, extends only to the making of regulations that are for the good of the city. They must be such as prudence and reason require, not unnecessarily prejudicial to private rights and interests, and not inconsistent with the laws of the state. It is not shown in the case what evil was to be prevented or good promoted by the passage of the ordinance in question; nor can we judicially see that any restriction of the kind was necessary. No cause for it, whether good or bad, is even suggested in the brief submitted by counsel for the city; and it is impossible for us to conjecture that any sufficient one existed. We can readily conceive that there might be times and circumstances when the exercise of such restraining power might be necessary and proper. If, for example, in times of great popular excitement and tumult, the assembling of people in considerable numbers at auction rooms and such places after sundown might lead to riots and disturbances of the public peace, the restriction would doubtedly be lawful. And so, too, it might be proper to restrain such sales on particular days or at particular places; or, if the manner of conducting them was particularly objectionable, to prescribe how they should be conducted.

un

The

selling of property at public auction being a lawful business, so recognized by the statutes of the state, and the prohibition in question being general in its character, restraining the transaction of such business at particular hours during each day when it is customary throughout the country to transact it, and having been enacted without any sufficient cause shown, it follows that it is an unreasonable and

unlawful interference with the freedom of trade, and that the ordinance is for that reason void."

It seems to us that an ordinance forbidding auctioneering after sundown is much more reasonable and necessary in its regulation than § 11 of the ordinance under consideration; for it is well known that crimes are committed more easily under cover of darkness than during the daytime. Those cases concerning ordinances restricting to certain designated limits such businesses as laundries, livery stables, cemeteries, etc., are justly upheld on the ground of public health. The ordinance which the Nebraska supreme court held unreasonable in Standard Oil Co. v. Kearney, supra (prohibiting gas filling stations within certain defined districts of a city), has a much greater relation to the public than the one we are considering, for there automobiles would be required to frequently cross over the sidewalk to get to the filling station, thus causing inconvenience and creating some danger to users of the sidewalks. An ordinance prohibiting the operation of a brickyard at a certain locality in a city was upheld in Ex parte Hadachek, supra, on the ground that "the burning of brick is a trade which may, when conducted in close proximity to dwelling houses, be so offensive to those residing in the vicinity as to constitute a nuisance," because of the smoke and offensive odors.

The appellant places great reliance upon the case of People ex rel. Schwab v. Grant, 126 N. Y. 473, 27 N. E. 964. There is a wide distinction between that case and the one here, because the ordinance there did nothing more than require auctioneers doing business in the city of New York, to obtain a license, pay certain license fees, and give certain bonds. We do not for a moment question the reasonableness of such an ordinance. It is, indeed, very directly conducive to the public welfare that there should be some regulation affecting the char

acter of the persons who shall be permitted to exercise the business of auctioneering, because of the superior opportunities such persons have of deceiving and defrauding the public who deal with them.

The holding of an auction sale in a store within the business districts of the city cannot seriously relate to the public health, or probably even to the public morals or welfare, and it can only indirectly relate to the public convenience. But it must be remembered that those who choose to go to cities to live must be content to be crowded, and to accommodate themselves to less space and

less freedom of action than if they, lived in the country. If the purpose of § 11 of this ordinance were to prohibit one from carrying on the distinct and permanent business of auctioneering over long periods of time in the district described, then a different question might be presented, but § 11 is infinitely broader than that.

We conclude that the portion of the ordinance which we have quoted is unreasonable and therefore unenforceable.

The judgment is affirmed.

Main, Ch. J., and Mackintosh and Mitchell, JJ., concur.

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.

I. In general.

An auction sale is not of itself a nuisance. Gilly v. Hirsh (1909) 122 La. 966, 20 L.R.A. (N.S.) 972, 48 So. 422.

When rightly conducted, the business of an auctioneer is not only legitimate, but a useful and important line of vending. People v. Gibbs (1915) 186 Mich. 127, 152 N. W. 1053, Ann. Cas. 1917B, 830.

The business of auctioneering is a lawful and useful one, and, while it is open to legislative regulation, the power to regulate does not include the power to prohibit. Wright v. May (1914) 127 Minn. 150, L.R.A.1915B, 151, 149 N. W. 9.

The business is, however, a legitimate subject of regulation to prevent abuses and frauds.

California.-Ex parte Bruce (1921) 54 Cal. App. 280, 201 Pac. 789. Illinois. Wiggins v. Chicago (1873) 68 Ill. 372. Indiana. Goshen v. Kern (1878) 63 Ind. 468, 30 Am. Rep. 234.

Louisiana.

Charity Hospital v.

Nebraska.

Caldwell v. Lincoln (1886) 19 Neb. 569, 27 N. W. 647. New Jersey.-Margolies v. Atlantic City (1901) 67 N. J. L. 82, 50 Atl. 367. New York. Rochester v. Close (1885) 35 Hun, 208; Buffalo v. Marion (1895) 13 Misc. 639, 34 N. Y. Supp. 945; Robinson v. Wood (1922) 119 Misc. 299, 196 N. Y. Supp. 209; People ex rel. Schwab V. Grant (1891) 126 N. Y. 473, 27 N. E. 964.

North Carolina. State v. Razook (1920) 179 N. C. 708, 103 S. E. 67. Virginia. Roanoke V. Fisher (1923) - Va. 119 S. E. 259.

II. Municipal power to regulate. The power to license auctioneers was said in an early case not to be one of the incidents of a municipality, and to exist only as conferred by statute and within the limitations fixed by the statute. Fowle v. Alexandria (1830) 3 Pet. (U. S.) 398, 7 L. ed. 719. See to the same effect, Mankato v. Fowler (1884) 32 Minn. 364, 20 N. W. 361.·

A charter containing no reference to auctions except the grant of a power to regulate the sale of houses at auction gives no power to regulate the sale of merchandise at auction. Ex parte Martin (1872) 27 Ark. 467.

In Wiggins v. Chicago (1873) 68 Ill. 372, it was said: "The power conferred by the charter to tax, license, and regulate auctioneers authorized the city to adopt any reasonable ordinance for the purpose. The charter points out no particular mode. The city may tax, may license, and may regulate the business of auctioneers. The city may not directly prohibit the business, nor can it adopt such unreasonable regulations would produce such results, or even be oppressive and highly injurious to the business. All means employed for the taxation, licensing, and regulation of the business must be reasonable."

as

mayor and board of councilmen the power to provide by ordinance "for licensing, taxing, and regulating auctions," there can be no doubt about their authority to prohibit persons. from exercising the business of auctioneers without license, by such fines or penalties as they may think proper to impose. Willis v. Boonville (1859) 28 Mo. 543.

A charter power to "regulate the ringing of bells, and the crying of goods and other commodities for sale at auction or otherwise, and to prevent disturbing noises in the streets," does not authorize a prohibition of the sale of jewelry at auction after sundown. Rochester v. Close (1885) 35 Hun (N. Y.) 208, wherein it was said: "We think the statute does not confer any authority on the council to regulate or prohibit a sale of goods at auction within the store or build-. ing of the seller, but that it relates solely to the manner or custom of advertising a sale by public outery, and authorizes the council to regulate that custom or manner of advertising, but not to interfere in any manner with the sale, whether at auction or in any other manner adopted by the seller."

An ordinance prohibiting auction sales after sundown is invalid where the charter provides that the ordinances, rules, and by-laws shall be for the government and good order of the city, for the suppression of vice, the prevention of crime, and for the benefit of the health, trade, and commerce thereof. Hayes v. Appleton (1869) 24 Wis. 542. The court said: "It is not shown in the case what evil was to be prevented or good promoted by the passage of the ordinance in question, nor can we judicially see that any restriction of the kind was necessary. No cause for it, whether good or bad, is even suggested in the brief submitted by counsel for the city, and it is impossible for us to conjecture that any sufficient one existed. We can readily conceive that there might be times and circumstances when the exercise of some such restraining power might be necessary and proper.

If, for example, in times of great popular excitement and tumult, the assembling of people in considerable numbers at auction rooms and such places after sundown might lead to riots and disturbances of the public peace, the restriction would undoubtedly be lawful. And so, too, it might be proper to restrain such sales on particular days, or at particular places; or, if the manner of conducting them was particularly objectionable, to prescribe how they should be conducted. But in these, and all like cases, the reasons for the restriction must be shown in proof. The court cannot take judicial notice of them."

A charter power to regulate auctions does not warrant an ordinance forbidding the sale by auction in the public markets of commodities which may properly be sold there. Bollander v. Ottawa (1899) 27 Ont. App. Rep. 335.

In an early Missouri case, Simpson v. Savage (1823) 1 Mo. 359, it was held that a grant to a municipality of power to license auctioneers did not preclude the legislature from passing an act requiring license, so that, thereunder, both a state license and a municipal license were neces

sary.

As to municipal power to tax or impose license fee, see infra, V., d.

III. What constitutes sale at auction.

Competitive bidding is the essence of an auction, and one who sells by public outcry, but at fixed prices, is not within a regulation of auctioneers. Crandall v. State (1876) 28 Ohio St. 479, wherein the court said: "The evidence in this case discloses that Crandall had a store in which he had dry goods and notions for sale; that upon his dry goods and notions he had a regular fixed retail price. It appears clear to us that the method adopted by him to dispose of his property did not in any degree involve public competition. In fact, the competitive element that distinguishes auction sales from others was wholly wanting. He offered his goods. for sale in an unusual manner, and used 'louder language' in their sale

than retail merchants usually do; yet this fact is evident-he had a fixed regular retail price on his goods, and in no case sold them, or any part of them, for more or less than his fixed regular retail price. The witness says 'he refused to take an offer for them above his regular retail price,' and only sold them when he 'received an offer of purchase at said price.' As his sales excluded all competitive bidding, he in no criminal sense exercised the trade or occupation of auctioneer, and we fail to discover wherein he was shown by the proofs to have violated the provisions of the statute. His method and manner of selling his property may have violated good taste, but as he fixed his own price upon his property, and that price was his customary retail price, he did not exercise the trade and occupation of 'auctioneer,' who is defined to be 'a person who disposes of goods or lands by public sale to the highest bidder.'" See to the same effect, Hibler v. Hoag (1841) 1 Watts & S. (Pa.) 552, wherein it was said: "In the instance under consideration, there was no bidding at all; the property being offered, once and for all, to anyone who would take it for the sum named. What else does the ordinary retailer, except that he does not proclaim his price aloud, or take the same measures to attract the public attention? He waits to be wooed. Was this a sale, then, within the words of the statute, by public vendue or outery? It is pretty clear from the ceaseless tautology in the language of legislative bodies that this word 'outery' was used, in this instance, as the synonym of its predecessor; and that it was not intended to interdict a sale by outcry, unless it were, at the same time, a sale by auction. What, then, is understood by an 'auction,' according to the usages of Pennsylvania? It is a sale by consecutive bidding, intended to reach the highest price of the article by competition for it; and such a sale the legislature certainly had in its view."

Sale by a so-called "Dutch" auction, at which goods are put up at a fixed