| Ill. | Apr 15, 1862
The instructions given for the defendant, are all wrong, or nearly so. They are based upon an erroneous principle which pervades them all. The fourth and sixth may be selected as especially exhibiting this erroneous principle. They are as follows:
“4. That although-the jury may believe, from the evidence, that the city of Peoria has power, by virtue of her charter, to pass ordinances prohibiting the sale of fresh meats in any other place than the Central Market, yet if the jury further believe, from the evidence, that the ordinances offered in evidence are in restraint of lawful trade, and the trade in fresh meat in itself is not unlawful, then they should find the defendant not guilty.”
“6. That if the jury believe, from the evidence, that the ordinance read in evidence is in restraint of lawful trade, they will still find the defendant not guilty.”
This was virtually telling the jury, that although the city had the right to pass the ordinance, yet if they believed it was in restraint of lawful trade, it was not binding. If the city had power to pass the ordinance, then no trade in violation of it could be lawful. The proposition is repugnant to itself. The third instruction in so many words refers it to the jury to determine, whether the ordinance was valid or not. That was for the court to determine. The judgment is reversed, and the cause remanded.
Judgment reversed.