Chaddock v. Day
| Decision Date | 28 June 1889 |
| Citation | 75 Mich. 527,42 N.W. 977 |
| Court | Michigan Supreme Court |
| Parties | CHADDOCK, PRESIDENT OF THE VILLAGE OF ALLEGAN, v. DAY, JUSTICE OF THE PEACE. |
Application for mandamus by Joseph W Chaddock, president of the village of Allegan, against Fayette S. Day, justice of the peace of the township of Allegan.
Application for mandamus. April 7, 1882, the president and board of trustees of the village of Allegan adopted the following by-law, being No. 16 of the by-laws of said village It is alleged in the petition for mandamus that one Charles Schermerhorn of said village of Allegan, did, on the 26th day of January 1889, "go about from place to place, and from street to street, selling fresh meat of beef and swine in pieces and quantities less than a quarter of such animals, on the public streets in said village, contrary to the provision of said by-law 16." On the 8th day of February, the relator, as president of said village, made a complaint in writing and on oath before FAYETTE S. DAY, the respondent, a justice of the peace in and for the township of Allegan, in which township the said village is situated, praying for the issuing of a warrant by said justice for the arrest of said Schermerhorn for violating said by-law; that the charter of the village requires all prosecutions for violations of the ordinances and by-laws of said village to be brought before some justice of the peace for the said township of Allegan, and authorizes such justice to issue a warrant for the arrest and apprehension of any offender against said by-laws; and it is further claimed that there is no other method of enforcing the provisions of said by-law No. 16, except by complaint and warrant. See sections 1, 2, art. 30, act No. 300, Local Acts 1883, pp. 518, 519. The said justice of the peace refused to entertain said complaint, and refused to issue a warrant. There are but two justices of the peace residing in said township of Allegan, the respondent and JAMES E. FULLER, and it is shown by the petition for the writ that FULLER was ill and unable to attend to business. The writ of mandamus is asked to compel the said FAYETTE S. DAY to entertain the complaint against said Schermerhorn for the violation of said by-law, and to issue his warrant for the arrest and apprehension of said Schermerhorn, that he may be apprehended and held to answer said complaint and further dealt with in relation to the same as law and justice may require. The respondent makes answer to the order to show cause, heretofore issued by this court, in which he admits that relator is president of the village of Allegan, and authorized to see that its ordinances and by-laws are enforced, and that the by-law in question was adopted by the president and trustees of said village; but alleges that said by-law was never published in any newspaper printed and circulating in said village of Allegan, as required by the charter of said village, it being printed in the form of a supplement to the Allegan Democrat, a newspaper published and circulating weekly in said village, which said supplement, containing only ordinances and by-laws, was folded in and put in circulation with the regular issues of said newspaper; and alleges that this method of circulation is not a compliance with the provision of the charter. Admits that relator made complaint as stated in petition.
Admits that he refused to entertain said complaint. Avers that he so refused because he believed, and still believes, that said by-law is illegal and void because the president and board of trustees had no power or authority, under the charter of said village of Allegan, to pass said by-law; and that said by-law is void because it is unreasonable, and in restraint of trade; and that the only object and effect of said by-law No. 16 is to restrain certain persons from selling fresh meats in quantities less than one-quarter of an animal, so as to protect those selling at retail in their shops. He also submits that the by-law is void because not published according to law, as heretofore stated. He further answers that there has never been any public market fixed or established in said village, and no rule, ordinance, regulation, or by-law has ever been adopted or passed by the board of trustees establishing or regulating a market or markets in said village; and submits that said by-law No. 16 does not provide for regulating or licensing "hawkers, hucksters, or peddlers" under the power given in the charter of said village, and that its effect is to discriminate unjustly in favor of a certain class of persons in the business of selling fresh meats, and against other persons in the same business, and that said by-law provides for an unjust tax and not for a license. We do not consider it necessary to determine whether the by-law was properly published under the law.
It is claimed by counsel for the relator that this by-law No. 16 is within the powers granted to the president and board of trustees of the village of Allegan, under its charter, and such counsel places it as a by-law regulating and licensing peddlers; that section 2, subd. 10, art. 6 of the charter authorizes them to license and regulate "hawkers hucksters, and peddlers within the limits of said village, and to require the payment of reasonable license fees." This subdivision 10 reads as follows: ...
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