City of St. Paul v. Traeger

• Decision Date: 19 September 1878
• Citation: 25 Minn. 248
• Parties: CITY OF ST. PAUL <I>vs.</I> FREDERICK W. TRAEGER.
• Court: Minnesota Supreme Court

Page 248

25 Minn. 248

CITY OF ST. PAUL vs. FREDERICK W. TRAEGER.

Supreme Court of Minnesota.

September 19, 1878.

Complaint was made against the defendant, in the municipal court of the city of St. Paul, for selling vegetables on a public street of that city, in violation of an ordinance of the city, which provides that "every farmer, gardener or person producing vegetables shall not sell the said vegetables in, upon or along the public streets or highways in the city of St. Paul, without first having obtained a license so to do from the city clerk, as other licenses are procured, for which license said person, or persons aforesaid shall pay into the city treasury the sum of twenty-five dollars for one year, always ending on the first Thursday of May in each year, and no fractional license shall be given, and said license shall only permit the sale of vegetables away from the public market after ten o'clock of any day." The defendant pleaded not guilty, with a special plea to the effect that he was not a resident of the city, but lived in the town of McLean, and more than a mile beyond the city limits; that he was a farmer and gardener, living on and cultivating his own land, and raising vegetables such as are described in the complaint; that as such farmer and gardener, he has been engaged in contracting, from day to day, within the city, for the sale and delivery

of vegetetables so raised by him and no other, and delivering such vegetables within the city on the day following that on which they were contracted for; that in carrying on his business, it is necessary to ascertain, before gathering the vegetables, the kinds and quantity required by each customer, and the amount so required is on the next day gathered and delivered to the purchaser; that all the vegetables mentioned in the complaint were so ordered and purchased, and afterwards gathered and delivered to fill the orders; and that he has never sold any vegetables except those so raised by him on his farm beyond the city limits. He admits that he has never procured a license from the city to sell his said farm products, and says that the ordinance on which the complaint is founded is in restraint of trade, is unauthorized by law, and wholly void.

The court found this plea to be true in fact, but held it to be insufficient in law as a defence, and convicted the defendant, and imposed the sentence prescribed by the ordinance, from which judgment he appealed.

Smith & Egan, for appellant.

W. P. Murray, for respondent.

CORNELL, J.

The ordinance, for a violation of which defendant was convicted, purports to be an amendment of section 2 of an ordinance in relation to markets, and, as amended, its provisions are as follows: "Every farmer, gardener, or person producing vegetables, shall not sell the said vegetables, in, upon or along the public streets or highways in the city of St. Paul, without having first obtained a license so to do from the city clerk, as other licenses are procured, for which license said person or persons aforesaid shall pay into the city treasury the sum of $25 for one year ending on the first Thursday of May in each year; and no fractional license shall be given; and said license shall only permit the sale of vegetables away from the public market after 10 o'clock of any day."

It is apparent that the provisions of this section are founded upon the assumption that the common council, under the charter, possesses the power to license the pursuit of the particular calling or business mentioned, in and along the streets of the city, and to prescribe, as an incident thereto, when it may be followed, what sum shall be paid for the privilege, and also to prohibit the business entirely without a license, as an efficient means for the protection and enjoyment of the power itself. The ordinance is in entire harmony with this view and no other. It was not passed, as suggested by counsel, by virtue of any power of supervision and control over the streets, because powers of that character are conferred for the sole purpose of putting and preserving the public streets in a fit and serviceable condition, as such, by keeping them in repair and free from all obstructions and uses tending in any way to the hinderance or interruption of the public travel, and to that end alone can they be exercised. The ordinance in question has no such object in view. On the contrary, it expressly authorizes the use of the public streets for the purposes of the licensed traffic during that portion of each day when ordinarily the travel is the greatest, and when such traffic would be most likely to interfere with the free and uninterrupted passage of vehicles and footmen, and it contains no provisions in any way restricting, or calculated to regulate, the manner in which the license business shall be conducted so as to occasion the least public inconvenience. It cannot be claimed that it was enacted in the exercise of any police power for sanitary purposes, or for the preservation of the good order, peace or quiet of the city, because, neither upon its face, nor upon any evidence before us, does it appear that any provision is made for the inspection of any articles sold or offered for sale under the license, or for preventing...