City of Saginaw v. McKnight

• Decision Date: 02 July 1895
• Court: Michigan Supreme Court
• Parties: CITY OF SAGINAW v. MCKNIGHT, CIRCUIT JUDGE.

63 N.W. 985

106 Mich. 32

CITY OF SAGINAW v. MCKNIGHT, CIRCUIT JUDGE.

Supreme Court of Michigan

July 2, 1895

Application for writ of mandamus by the city of Saginaw against Robert B McKnight, circuit judge. Writ denied.

Wm. G. Gage, for relator.

James H. Davitt, for respondent.

HOOKER J.

The charter of the city of Saginaw provides that "the common council may require transient dealers to take out license before engaging in business, and regulate the terms and conditions of issuing the same." Local Acts 1889, p. 900, � 9. Under the authority conferred by this section the council passed an ordinance which provides "that every person not a resident, who shall bring into the city any goods wares or merchandise, with a view to dispose of the same by auction or otherwise, without any bona fide intention of remaining permanently in the business of selling or disposing of such goods, wares or merchandise within the city, shall be deemed and treated as a transient trader or dealer, and before he shall sell or expose for sale any of such goods, wares or merchandise within the city, either by auction or otherwise, he shall pay to the city treasurer, for the use of said city the sum of ten dollars per day for every day or part of a day such goods, wares or merchandise shall be exposed for sale." The ordinance provides for the issue of a license upon such payment, and a penalty for noncompliance. It also provides that the words "goods, wares and merchandise" shall not be construed to include wood or fuel, or the products of the farm or dairy, when exposed or offered for sale by the producers thereof. One McDevitt was convicted before a justice of violating this ordinance. Upon appeal to the circuit court, the proceedings were quashed by the respondent, upon motion, upon the ground that the ordinance was invalid, and we are asked to issue a mandamus requiring him to vacate his order in the premises, and proceed with the trial of the cause.

It is asserted that the ordinance is void because: (1) It discriminates between residents of the city of Saginaw and other persons. (2) it discriminates between nonresidents inasmuch as it requires a license only in cases where the goods sold are brought into the city. (3) The fee charged for the license is excessive and unreasonable. The business of a transient dealer if subjected to the payment of a fee must be with a view to taxation, or to cover the expense of regulation under the police power. In this case it cannot...