Caldwell v. City of Alton.

• Decision Date: 31 January 1864
• Parties: CALVIN D. CALDWELLv.CITY OF ALTON.
• Court: Illinois Supreme Court

33 Ill. 416

1864 WL 2946 (Ill.)

75 Am.Dec. 282

CALVIN D. CALDWELL

v.CITY OF ALTON.

Supreme Court of Illinois.

January Term, 1864.

APPEAL from City Court of Alton.

The case is sufficiently stated by the court.

J. H. Yager, for appellant.

A. H. Gambrill, for appellee.

BREESE J.

This case comes before this court on the following agreed state of facts: That the charter of the city of Alton provides that its common council shall have the power to establish and regulate markets; that the council did, in pursuance of this provision, pass an ordinance prohibiting, during market hours, the sale of vegetables outside of the limits of the market; that the plaintiff in error sold vegetables at his store and regular place of business during market hours, the store being beyond and outside the limits of the market; that the plaintiff in error was, at the time of so selling, a regular merchant or dealer in family groceries in the city of Alton, and that the vegetables were sold at his store; and it was further agreed that such sale was contrary to the provisions of the ordinance.

On these facts the court below found for the city, and the record is brought here, where it is insisted by the plaintiff in error that the common council has not the power, under the city charter, to pass the ordinance in question, and that the same is in restraint of trade, and void.

The city contends that the ordinance is not in restraint of trade, but is reasonable and proper, as being in regulation of trade, and that the council had ample power to pass it.

It is a principle, everywhere recognized, that a corporation, public or private, possesses and can exercise no other powers than those specifically conferred by the act creating it, or such as are incidental or necessary to carry into effect the purposes for which it was created. Trustees v. McConnel, 12 Ill., 140; 2 Kent Com. 298; McIntire v. Preston, 5 Gilm. 60; Firemen's Ins. Co. v. Ely, 2 Cow. 709; Ang. & A. on Corp. 85.

The power, therefore, to establish and regulate markets, includes the power to purchase the site and the erection of the necessary buildings and stalls upon it, and, when provided, to adopt such rules in regard to it, and to the business to be there transacted, as may be deemed reasonable and just.

A market, says Blackstone (2 Com. 37), is a franchise or liberty derived from the crown, or in some cases held by prescription, which presupposes a grant, and may be granted to a public body or to a private person.

It is a designated place in a town or city to which all persons can repair who wish to buy or sell articles there exposed for sale, and in some cities they are known by the articles there exposed to sale. They have been found to be a public convenience when properly regulated. Such regulations as the city authorities may adopt in regard to them should have, and generally have, reference to the preservation of peace and good order and the health of the city. They should be of a police and sanitary character, and an attempt, by color of regulations, to restrain trade, is an abuse of the power. As the limits of this market are specially defined in the ordinance, and embrace but a portion of the city, the regulations prescribed for it can only operate within those limits. They could not, under this power, be made to extend throughout the city but must be confined within the market limits. The facts in this case show that the plaintiff was a regular merchant, doing business in the city outside of the market limits; consequently this regulation could not affect him.

When a market is established under such a power, and its limits defined, it might be admitted the power of the council over it to prescribe regulations to operate within those limits was plenary, but under such a power the regulations could not be made to embrace the whole city.

The power to restrain hawkers and peddlers from using the streets of a city for purposes of traffic has nothing to do with the power to regulate a market occupying but a small portion of the city. That may be arranged...