ordinance regulating the sale of goods within the city limits is for the court, and not for the jury.1 It has been held in some cases that an ordinance by a municipal corporation which prohibits the selling of marketable articles elsewhere than in the public market during market hours, is an exercise of the police power of the municipality and is not in restraint of trade, and is therefore valid.2 But the validity of such an ordinance has not been uniformly recognized.3 Under the power to regulate markets, a municipality cannot adopt an ordinance prohibiting hawking and peddling in the streets except by parties who have attended market during regular market hours on the market days. Such an ordinance is partial in its operation and is invalid.4 But it has been held that where a municipal corporation is authorized to licence and regulate the sale of meats and vegetables, a regulation which prohibits the keeping of a stall for the sale of these articles outside of a public market without obtaining a licence is not invalid.5 When the limits of a market are defined by ordinance and do not extend to the whole city, ordinances regulating the use of the market are only effectual within the market limits. And under the 1. Peoria v. Calhoun, 29 Ill. 317. 2. Ex parte Byrd, 84 Ala. 17; Shelton v. Mobile, 30 Ala. 540; 68 Am. Dec. 143; Le Claire v. Davenport, 13 Iowa 210; Davenport v. Kelly, 7 Iowa 102; Bowling Green v. Carson, 10 Bush (Ky.) 64; State v. Gisch, 31 La. An. 544; New Orleans v. Stafford, 27 La. An. 417; Gossigi v. New Orleans (La.), 4 So. Rep. 15; St. Louis v. Webber, 44 Mo. 547; St. Louis v. Jackson, 25 Mo. 37; Dunham v. Rochester, 5 Cow. (N. Y.) 462; Bush v. Seabury, 8 Johns. (N. Y.) 418; Buffalo v. Webster, 10 Wend. (N. Y.) 99; Winsboro v. Smart, 11 Rich. (S. Car.) 551; Badkins v. Robinson, 53 Ga. 613; Ex parte Canto, 21 Tex. App. 61; 57 Am. Rep. 609; Commonwealth v. Brooks, 109 Mass. 355; and see St. Louis v. Jackson, 25 Mo. 37. 3. See Bethune v. Hughes, 28 Ga., 560; 73 Am. Dec. 789; Bloomington v. Wahl, 46 Ill. 489; Caldwell . Alton, 33 Ill. 416; 85 Am. Dec. 282; St. Paul v. Laidler, 2 Minn. 190. The New Orleans ordinance exacting twenty-five cents for every load of supplies for sale by one not occupying a market stall, is intended to raise a revenue, and, either as a tax or a licence, is unconstitutional. State v. Blaser, 36 La. An. 363. 4. Danville v. Peters, 8 Luz. L. Reg. (Pa.) 273 But although such an ordinance is 6 Some courts have held that a power "to regulate and manage markets" is sufficient to sustain an ordinance prohibiting the sale of meats elsewhere than in the public market. Ex parte Byrd, 84 Ala. 17; Ex parte Canto, 21 Tex. App. 51; 57 Am. Rep. 609. But compare Bethune v. Hughes, 28 Ga. 560; 73 Am. Dec. 789; Burlington v. Dankwardt, 73 Iowa 170. A legislative enactment authorizing a city to prohibit sales of vegetables and farm products "during market hours" does not authorize a general prohibition against their sale, except by licensed vendors. State v. St. Paul Municipal Court, 32 Minn. 329. 6. But strangers who come within the market limits are subject to the ordinances. Buffalo v. Webster, 10 Wend. (N. Y.) 99. The power to restrain hawkers and peddlers from using the streets of the city for the purpose of traffic is not necessarily connected with the power to regulate a market. The prohibition power to regulate markets, it has been held that a municipal corporation may require persons selling fresh meat outside the market limits to procure a licence and pay a fee therefor.1 Under a statute which provides that towns may establish markets and provide for the weighing of coal, hay, or other articles for sale, the municipality may erect scales, appoint a weighmaster and regulate the use of the scales by ordinance.2 And when the charter authorizes the city to regulate the place and manner of selling hay, the city may forbid under penalty the exposing of any hay for sale in certain places without first having it weighed by the attendant of some established city hay scale, from whom a certificate of the weight must be obtained.3 But under the right to make necessary regulations under the police power, a city cannot levy a tax for revenue, and a charge levied for purposes of revenue upon persons selling articles within the corporate limits and without the market-house is illegal.4 Where a city is authorized by charter to establish and regulate the markets and to prevent huckstering, it cannot adopt an ordinance defining a huckster to be "any person not a farmer or butcher who shall sell or offer for sale any commodity not of his own produce or manufacture." The city cannot include persons as hucksters who do not fall within the ordinary meaning of that term.5 VI. Use of Market-Sales.-All persons are entitled to enter a public market for the purpose of buying, but not necessarily for the purpose of selling; right to sell is usually confined to stall holders.6 And by-laws regulating markets must not be so re of peddling may be justified under 2. Davis v. Anita, 75 Iowa 325; 18 Am. & Eng. Corp. Cas. 502. 3. Yates 7. Milwaukee, 12 Wis. 752. 4. Mestayer v. Corrige, 38 La. An. 707; State v. Blaser, 36 La. An. 363. See also as to licences St. Louis v. Freivogel, 95 Mo. 533; Vosse . City of Memphis (Tenn.), 2 Am. & Eng. Corp. Cas. 16. In Frommer v. Richmond, 31 Gratt. (Va.) 646, it was held that a city council might, under the powers conferred upon it by charter, require a person who resided outside the city limits but rented a stall in the market house. to take out a licence for using his vehicles to bring meats from his house to his stall and pay a tax on the licence. 5. Mays v. City of Cincinnati, 1 Ohio St. 268. 6. David's Heirs v. New Orleans, 16 La. An. 404; Hughes v. Farmers' Assoc., I Phila. (Pa.) 338. But a city authorized to maintain a market house cannot exclude the public therefrom during market hours and devote the building to other purposes. strictive as to prevent a frequenter of it from resorting to it. The municipality may, however, limit the sales to perishable articles necessary to the daily support of the inhabitants of the city, and may prohibit the selling of other articles,—c. g., groceries.2 3 A corporation may, however, adopt a by-law providing that part of the market shall be used for sale by wholesale only, and imposing a penalty for selling by retail in that part. But although a corporation may impose fines and other penalties, it has no power to enact that if fruit is found in a market in baskets not marked in a prescribed manner, both fruit and baskets shall be forfeited.4 An ordinance prohibiting wagons containing perishable produce from remaining in streets within the limits of a market more than twenty minutes during market hours, unless permitted to do so by the market superintendent, is reasonable, and is not an undue restraint of trade.5 So, too, the city may require that persons occupying stands shall satisfy the clerk of the market that the articles are the produce of their own farms, or some farm not more than three miles distant from the dwelling house. And it may provide that any person who shall occupy a market stall without authority of law for the purpose of selling meat or provisions, shall be subject to a penalty.7 VII. Occupation of Stalls and Stands. The right to occupy a market stall pursuant to the permission of the clerk of markets, or of the city, is not a right of property of which the courts can take cognizance. It is merely a licence.8 Where the mode of renting a market stand is provided for by ordinance, the right to occupy it cannot be acquired by possession. Every seller must be deemed to hold his stand by contract with the city subject to Magistrates of Edinburgh v. Blackie (Eng.), 16 Am. & Eng. Corp. Cas. 534. 1. Worthy 7. Nottingham Local Board, 21 L. T. 582. 2. First Municipality 7. Cutting, 4 La. An. 335. But an ordinance which prohibits sales of any articles in a public market maintained by a city, pursuant to statutory authority, except from stands leased or occupied by the sellers, and confines farmers and gardeners with their vehicles to other markets where the accommodation is inadequate, is void as infringing the rights of the farmers and gardeners to the use of the public market, and prohibition will lie to restrain proceedings for violating such ordinance. Hughes v. City of Detroit, 75 Mich. 574; 27 Am. & Eng. Corp. Cas. 622. 3. Strike v. Collins, 54 L. T., N. S. 152. 4. Phillips v. Allen, 41 Pa. St. 81; 82 Am. Dec. 486. If the sale of beef is prohibited in a 14 C. of L.-30 465 certain part of the market, although such space is devoted to the use of farmers for the sale of their farm produce, the flesh of an ox raised on a farm and slaughtered by a farmer cannot be sold in that part of the market. Philadelphia 7. Davis, 5 Watts & S. (Pa.) 200 5. Com. v. Brooks, 109 Mass. 335 But when the power conferred upon the city to pass bylaws and ordinances imposing a penalty is confined to such ordinances as have penalties attached which do not exceed $20 for one offence, an ordinance prescribing a penalty of not less than $1 nor more than $5 for every hour" that a person shall keep his wagon within the limits of the market after notice from the clerk of the market to remove it, is unauthorized and void. Com. v. Wilkins, 121 Mass. 356. 6. Com. v. Rice, 9 Metc. (Mass.) 2537. State v. Leiber, 11 Iowa 407. 8. Barry 7. Kennedy. 11 Abb. (N.Y.) Pr. N. S. 421. market regulations, and not adversely to its authority. But an action may be maintained by the owner of a market for stallage without showing any contract in fact between him and the occupier of the stall.2 A lease of a stall in a city market for a period of one year is not a disposal or sale of real estate belonging to the city within the meaning of the provisions of a charter having reference to such real estate, and is not governed thereby.3 And when by ordinance it is provided that market stalls shall be leased at public auction to the highest bidder above a fixed minimum price, who should then become the tenant at a fixed yearly rent, the person acquiring right to stalls only acquires the privilege of a choice in the tenancy, and in the event of the market being torn down he has no claim to the return of the premium paid.+ If a difficulty arises between the holders of contiguous stands it is the duty of the market clerk to interpose and determine their respective rights, and if necessary to call the police to his aid in preserving order and peace in the market.5 A grant by a city of a lease of a market stall does not amount to a contract by it to prevent unlicensed sales by other persons, the breach of which will excuse the payment of rent, although it is the duty of the officers of the city to prevent such sales." 1. Hatch . Pendergast, 15 Md. 251; Rose 7. Baltimore, 51 Md. 256. A bylaw of a city providing that no inhabitant of a city, or of any town in the vicinity thereof, not offering for sale the produce of his own farm, shall, without the permission of the clerk of the market, be suffered to occupy any stand for the purpose of vending commodities, in certain streets which by bylaws are a part of the market, is a sanitary police regulation, and not void as making a distinction between the inhabitants of the city and its vicinity, and those of distant towns, nor as being in restraint of trade. Nightingale's Case, 11 Pick. (Mass.) 168. An ordinance requiring persons occupying stands in the market place to pay the sum of twenty-five cents for every market day's occupation, is lawful and may be enforced by fine and judgment before the mayor. Cincinnati . Buckingham, 10 Ohio 257. As to the right of the farmer of the revenues of the market to eject a person occupying a stall, see Douat v. Beombay, 15 La. An. 377. Licence Tax.-In Delcambre v. Clere, 34 La. An. 1050, it was held that a charge of a specified amount for the daily privilege of occupying a butcher's stand is a licence or tax; that the power of municipal corporations to tax or li cence occupations must be expressly conferred by law; and that such corporations may under their police powers regulate or suppress private markets, but cannot impose a tax for revenue. 2. Mayor etc. of Newport v. Saunders, 3 B. & Ad. 411. 3. Dubuque 7. Miller, 11 Iowa 583. But where a municipal corporation under a general power to lease, sell or dispose of market stalls for any term it may think proper, sells a stall in a public market without limitation of time, and without any special ordinance authorizing the sale and prescribing the term, such sale confers no absolute property, but only the right of exclusive enjoyment and possession for market purposes during the existence of the market, and is not in excess of the powers of the city. Rose v. Mayor etc. of Baltimore, 51 Md. 256; 34 Am. Rep. 307. 4. Woelpper z. Philadelphia, 38 Pa. St. 202. Constitutionality and effect of the ordinance of the city council of Charleston of 1835, authorizing the commissioners of the market to vacate the lease of any of the market stalls. City Council v. Goldsmith, 2 Spears (Š. Car.) 428. 5. Hatch 7. Pendergast, 15 Md. 251. 6. Peck v. Austin, 22 Tex. 261. VIII. Removal and Discontinuance.-In Michigan, it has been held that a grant of authority to maintain a public market being a franchise for public purposes, a city, which by its charter has received the power of maintaining such a market, and has acquired property and issued bonds in payment thereof, cannot of its own free act discontinue such market, even though the market building be erected upon land owned by the city, but must continue the same and collect and apply the income provided from such franchise in the manner prescribed by the statute.1 But in other States it has been held that a power conferred in general terms upon the authorities of a city to establish and regulate markets is a continuing power. The fact that the city council had at one time exercised it by establishing a market place and erecting a market house in a particular locality, will not prevent it from afterwards abandoning that site and removing the market to another. Such a removal, if made in the reasonable exercise of the discretion vested in the city by law, will not be restrained by injunction at the suit of a taxpayer.2 IX. Actions Against Municipality for Negligence.-Where a municipality receives toll for the use of space in a public market, a duty is imposed upon it to keep the market in a safe condition.3 MARKET VALUE.—A price established by public sales in the way of ordinary business." 1. Taggart v. Detroit (Mich.), 22 Am. & Eng. Corp. Cas. 177. It was also held in this case that the public have such an interest in the continuance of a public market as confers upon the attorney general the power of bringing a suit in equity to restrain a municipal corporation from wrongfully discontinuing it. See New Orleans . Heirs of Guillotte, 12 La. An. 818. 2. Gall v. Cincinnati, 18 Ohio St. 563. See also Wartman v. Philadelphia, 33 Pa. St. 202; Magistrates of Edinburgh v. Blackie (Eng.), 16 Am. & Eng. Corp. Cas. 535; Wortley v. Nottingham Local Board, 21 L. T., N. S. 582; Mayor etc. of Dorchester v. Ensor, L. R., 4 Ex. 335. But it would appear that under a grant of authority to maintain a market, the removal will be bad unless the public have the same privilege in the new market as in the old. Rex v. Starkey, 7 A. & E. 95. 3. In the case of Lax v. Corp. of Darlington, L. R., 5 Ex. Div. 28; 48 L. J., Q. B. 143, the plaintiff sued the borough of Darlington to recover damages for injury to a cow in the public market place. The defendants were the owners of the market, and in the market place they had erected a statue around which it had placed a railing as a fence. Plaintiffs attended the market with their cattle and occupied a particular site for which they paid a toll. A cow belonging to them, in attempting to jump the railing, injured herself and subsequently died from the injuries. The jury found that the railing was dangerous. It was held that the defendants, having received toll from the plaintiffs, invited them to come to the market with their cattle, and a duty was imposed on them to keep the market in a safe condition, and that therefore an action would lie for the loss sustained by the plaintiffs. Obstruction of Street.-In Black v. Cleveland, 3 West Law Monthly (Ohio) 96, it was held that a municipal corporation is not liable to an individual for damages sustained by him in driving along a street appropriated to market uses occasioned by the street being obstructed by market teams, wagons and marketmen. 4. Murray v. Stanton, 99 Mass. 348; Meixell v. Kirkpatrick, 6 Pac. Rep. 241. The "market value" is such a sum of money as the property is worth in the market to persons generally who would pay the just and full value. Esch |