Ash v. People,

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Notebook

| Mich. | May 30, 1863

Lead Opinion

Martin Ch. J.:

The charter of the city of Detroit empowers the Common Council to erect and maintain market houses, establish markets and market places, &c., and to provide fully for the good government and regulation thereof; and to license and regulate butchers and the keepers of shops, stalls, booths or stands at markets or any other place in *352the city, for the sale of any kind of meats, fish, poultry, &c.; and to authorize the Mayor to grant such license, &c., and to prescribe the sum of money to be paid, there-' for into the city treasury. The city has established a market, and an ordinance exists prohibiting persons from keeping a meat shop or stand outside such market without a license from the Mayor, and upon terms of paying into the city treasury five dollars, and executing a bond conditioned that they will faithfully observe the provisions of the ordinance.

Ash keeps a meat shop outside the market, without a license; and alleges and insists that he has a right to do so, upon the ground that the ordinance is unconstitutional: 1st: In requiring" a license fee from persons selling meats outside the market, and 2nd: In requiring a fee beyond the sum necessary to defray the expense of making and registering the license, and which it is claimed is in fact a tax.

The power to license and regulate the vending of meats and vegetables is not denied, nor its necessity questioned. The health of the city demands that it should exist. If the power to regulate exists, then the city has the power to prescribe the limits within which the trade or calling shall be carried on without license. If carried on elsewhere the city may require the license and bond, for protection and regulation; and may require such reasonable fee as will compensate either partially or fully for the additional expense of inspection and regulation thereby incurred. The market being under the immediate supervision of the city officers, no extraordinary expenses need be incurred, and if there were, the rent of the stalls is considered a compensation. An ordinance of this kind does not in fact operate unequally, and is not against common right or in restraint of trade.

Nor is this exaction of five dollars a tax. It is but a reasonable compensation which the city demands from those *353who will not sell in the public market, for the additional labor of officers, and expense thereby imposed. If it be conceded that the city may demand a sum sufficient to defray the expense of making out the license, it is difficult to conceive why it may not also demand enough to pay all the expense attending the supervision of the trade at the place licensed. As w-e regard the sum exacted as a reasonable fee for the indemnity of the city, and not as in any sense a tax, we do not deem it expedient to discuss the further question of the extent of the power of the city to exact license fees, or the limits of suoh power.

The judgment must be affirmed.

Manning and Christiancy JJ. concurred.

Dissenting Opinion

Campbell J.

dissenting.

I have been inclined to arrive at the same conclusion as my brethren, as the city regulation is a very reasonable one. But upon the authorities I am satisfied it is an exercise of the taxing power, which can not under our Constitution be exercised by such specific charges.

Judgment affirmed.