City of Butte v. Paltrovich
| Citation | 75 P. 521,30 Mont. 18 |
| Parties | CITY OF BUTTE v. PALTROVICH. |
| Decision Date | 23 February 1904 |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Jno. B. McClernan Judge.
Victor Paltrovich was convicted of violating an ordinance, and appeals. Affirmed.
J. L Wines, for appellant.
E. M Lamb and J. L. Templeman, for respondent.
The appellant, Victor Paltrovich, was convicted in the police magistrate's court of the city of Butte of violating Ordinance No. 586 of that city. He appealed to the district court, where the cause was tried on an agreed statement of facts. The facts agreed upon are that Ordinance No. 586 was duly passed by the city council, approved by the mayor, and published and recorded as required by law; that defendant Paltrovich, was a pawnbroker engaged in that business in the city of Butte; that he kept his place of business open and transacted such business after 6 o'clock p. m. on January 7, 1902 (January 7, 1902, not being a day next preceding a holiday); that the defendant had a license to conduct such business from the city of Butte, and a like license from the authorities of Silver Bow county; that the city of Butte has not required any trades or avocations mentioned in subdivision 16 of section 4800 of the Political Code, as amended by act of the Fifth Legislative Assembly approved March 8, 1897 (Sess. Laws 1897, p. 203), to close between 6 o'clock p. m. and 7 a. m. of the next day, except pawnbrokers, loan offices, and secondhand stores, but that all other places of business, trades, and professions in said city do close at 6 p. m. by consent, without being required to do so by ordinance. Upon this statement of facts, the district court found the defendant guilty, and adjudged that he pay a fine of $50 and costs. From this judgment, and an order denying him a new trial, defendant appeals.
Section 1 of Ordinance No. 586 reads as follows: "That hereafter it shall be unlawful for any person, persons or corporation to keep open or transact business with the public between the hours of six o'clock p. m. and seven o'clock a. m. of the following day and on legal holidays, in the operation of a pawn-shop, loan-office or second-hand store: provided however, that on the next day preceding a legal holiday, the hour of closing said place of business shall not be later than ten o'clock p. m." Section 2 provides a penalty for a violation of the ordinance, and section 3 contains a repealing clause.
Both parties have proceeded upon the theory that section 4800, above, as amended, is controlling in this instance, and we shall do likewise, as it is immaterial to the consideration of this case whether in fact it is, or whether the act of the Third Legislative Assembly approved March 7, 1893 (Sess. Laws 1893, p. 113), is in force. Subdivision 16 of section 4800, above, as amended, reads as follows: "The city or town council has power: (16) To license, tax and regulate auctioneers, peddlers, pawn-brokers, secondhand and junk shops, drivers, porters, saloons, billiard tables, ten-pin alleys, shooting galleries, shows, circuses, street parades, theatrical performances and places of amusements, within the city or town. ***" Under the authority conferred by this section, the city enacted Ordinance No. 586.
Appellant contends that the ordinance is invalid for the reason that the city exceeded the authority delegated to it by subdivision 16 of section 4800 as amended, in the following particulars: (1) The ordinance prohibits the prosecution of his business; (2) it is an unlawful interference with or restraint of trade; and (3) under this ordinance he is denied the equal protection of the law.
1. Appellant contends that this ordinance prohibits him from conducting his business during a portion of every day, and that, under the power granted to the city to license, tax, and regulate such business, it has no power to prohibit it altogether. A regulation presupposes the existence of a right. "To regulate" means to adjust; to govern by rule; to direct or manage according to certain standards or laws; to subject to rules, restrictions, or governing principles. Standard Dictionary. But does the ordinance in fact operate as a "prohibition," as that term is used in the adjudicated cases? An examination of the authorities discloses that, where the term "prohibit" is used, it is in the sense of interdict; that is, to stop altogether. Most, if not all, police regulations do in fact operate as an interference with the free exercise of the classes of business made subject to them, but this interference alone cannot be made the test of their validity. If they afford reasonable facilities for the conduct of the business, they do not amount to a prohibition, but to a regulation, thereof. Jacksonville v. Ledwith, 26 Fla. 163, 7 So. 885, 9 L. R. A. 69, 23 Am. St. Rep. 558; 1 Dillon on Mun. Corporations (4th Ed.) § 400; Ex parte Byrd, 84 Ala. 17, 4 So. 397, 5 Am. St. Rep. 328.
2. Appellant also contends that as he had a city and state license to conduct his business, and neither license imposed any limitation on the time within which he might conduct such business, the ordinance in question operates as an unlawful restraint of trade. But appellant's licenses were mere permits to conduct his business, and he took them charged with the knowledge that the city might impose any reasonable regulation for the conduct of that business which might be necessary to the peace and good order of the city. Smith v. Knoxville, 3 Head (Tenn.) 245; Horr & Bemis on Mun. Police Ordinances, § 132.
3. Appellant makes particular complaint that only pawnbrokers secondhand stores, and loan offices, of all the classes of business enumerated in subdivision 16, supra, are made subject to this ordinance, and that he is thus denied the equal protection of the law; but he does not say that any other pawnbroker is exempt from the operations of this ordinance. It is only where persons engaged in the same business are subjected to...
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