City of Mankato v. Fowler

• Decision Date: 29 July 1884
• Citation: 20 N.W. 361,32 Minn. 364
• Parties: City of Mankato v. J. G. Fowler
• Court: Minnesota Supreme Court

20 N.W. 361

32 Minn. 364

City of Mankato v. J. G. Fowler

Supreme Court of Minnesota

July 29, 1884

Appeal by plaintiff from a judgment of the municipal court of Mankato.

Judgment affirmed.

J. M Gilman and James Brown, for appellant.

P. A Foster, for respondent.

OPINION

Vanderburgh, J.

This action is for a penalty for the violation of an ordinance of the city of Mankato which forbids the exercise of the trade or business of an auctioneer within that city, without first having obtained a license therefor from the common council and exacts a license fee of $ 300 as a condition of the issuance of the license, and also the execution of a bond with sufficient sureties, on the part of the applicant, conditioned, among other things, for the payment of all duties which are or may be imposed by this or any subsequent ordinance on sales made by him. The record does not contain all the provisions of the ordinance in respect to the bond, nor the evidence in the case, but simply the findings of the court, which, in addition to the facts above stated, also show that the defendant offered goods for sale at auction in violation of the ordinance; that the city is a place of six or seven thousand inhabitants, whose trade is chiefly local and at retail, with no large or wholesale auction business; and "that prior to the ordinance there had been frequent retail auctions in said city, but no licenses had been issued under the ordinance," which had been in force upwards of a year. The court held the ordinance void, and dismissed the prosecution.

The authority to exact a license from auctioneers is found in chapter 4, section 3, of the city charter, (Sp. Laws 1868, c. 27,) wherein it is provided that the council may pass ordinances for the government and good order of the city, etc., and, among other things, to license and regulate theatrical performances, exhibitions, billiard-tables, tavern-keepers, and to grant licenses to and regulate auctions and auctioneers. This authority clearly appears to be granted to the council to be exercised for police purposes, and by police regulations; and we find nothing in the charter empowering the council to tax this particular business, or to impose any other or further restrictions or burdens upon it than authorized by the provision above referred to. The authority to exercise such powers must affirmatively appear in the charter. They are not to be taken by intendment or implication merely. City of St. Paul v. Traeger, 25 Minn. 248.

The plain purpose of the charter provision quoted is to...