44 Mo. 547 | Mo. | 1869
delivered the opinion of the court.
Defendant was fined for keeping a meat shop within the market limits, or limits within which meat shops are prohibited by the ordinances of St. Louis. Ordinance No. 5,434, in relation to markets, approved September 6, 1864, provided, by section 5, article 5, that “No person, not being the lessee of a butcher’s
The appellant urges that these ordinances are invalid, for the reason, first, that they are not warranted by the city charter; and second, if warranted, they are an unreasonable exercise of the powers granted. The charter of March 3, 1851 (Bess. Acts 1851, p. 155), authorized the council “to erect market-houses, establish markets and market-places, and provide for the government and regulation thereof,” and, in section 31, also to regulate “ the vending of meat, poultry, vegetables,” etc. This court, in The City of St. Louis v. Jackson, 25 Mo. 37, expressly affirms the power of the city under the authority cited to pass an ordinance in the precise language of section 5, art. 5, of ordinance 5434 above quoted, and we can see no sufficient reason for disregarding that decision, although there are some authorities apparently adverse to it. Appellant claims such changes in legislation, both by the State Legislature and city council, as to make the question a new one.
A revision of the city charter was had March 18, 1867 (Sess. Acts 1867, p. 58), which changed the phraseology of the previous grant. The eleventh subdivision of section 1, article 4, p. 68, grants the council power “to erect market-houses, purchase market-houses already erected, * * establish markets, marketplaces, and meat shops, provide for the government and regulation thereof, and the amount of licenses to be paid therefor;” and the thirty-first subdivision gives power * * “ to regulate the vending of meat, poultry, fish, and vegetables, etc.” This revision, it is claimed, changes the power, and operates as a repeal of the previous ordinance. If it took away the power to pass such an ordinance, it would have that effect; but the only
It can not' be claimed that the city council can derive any authority for an ordinance already adopted, from the new powers given by the amendment to the charter of 1868, referred to by counsel, and I do not understand the validity of the one in question, or of that part of it involved in this suit, to depend upon the act of that year, but rather upon the power long before given to “ establish markets and market places,” and “ to regulate the vending of meat,” etc. These two powers are very broad and comprehensive, and existing as they did before the ordinance in question, and being embraced in every amendment, would seem to warrant any reasonable legislation upon the subject.
The matter of the second claim, that the council have executed their power in an unreasonable manner, has not been adjudicated. That corporations have none of the elements of sovereignty, that they can not go beyond the powers granted them, and that they must exercise such granted powers in a reasonable manner, are propositions that can not be disputed. And the court must judge in each case whether the exercise of the power be reasonable. (Commonwealth v. Worcester, 3 Pick. 462, 473.) If this ordinance is oppressive, unequal, and unjust; if it be not a legitimate regulation of the vending of meat, but partial and unfair, establishing monopolies, or subjecting either the seller or purchaser to unnecessary inconvenience or expense, it certainly should not be upheld. In assuming, however, the right to judge of the reasonableness of an exercise of corporate power, courts will not look closely into mere matters of judgment where there may be a reasonable difference of opinion. It is not to be expected that every power will always be exercised with the highest discretion, and when it is plainly granted, a clear case should be made to
Counsel for appellant desire us to reconsider the doctrine of Jackson v. The City of St. Louis, and adopt that of St. Paul v. Laidlow, 2 Minn. 190, and Bethune v. Hughes, 28 Ga. 560. It is useless to attempt to reconcile these authorities, for there is a a clear and unmistakable conflict between them. The principles of the Minnesota case, and the opinion of the court in the Georgia case, would establish absolute free trade throughout the city in butchers’ meats, and indeed in every other commodity, and would render it impossible to keep up the market system for family supplies in the cities of the State — a system believed to be, in the large towns, for the benefit of both seller and buyer, and conducive to public order, cleanliness, and health. In Bethune v. Hughes, the authority granted the city council in their charter was much more narrow than that of St. Louis, and the case might be reconciled with Jackson v. The City, but the language of Judge Lumpkin is very broad and somewhat peculiar. The only point actually decided, however, is embraced in the syllabus, which is, “that a grant to establish and. keep up a market does not of itself imply the power to exclude all persons from selling elsewhere marketable articles during market hours.” But the case of St. Paul v. Laidlow goes much further, and under
Courts are in the habit, more perhaps than they are aware, of looking to the hardship or necessity, i. e., “the unreasonableness” of an act or regulation, in judging of its legality. In small towns, like Columbus, Georgia, and in an open and rural city like St. Paul, spread over a large surface, and situated in a climate whore sanitary measures need hardly be considered, it is not strange that the inhabitants and courts should consider as vexatious, regulations that prevented family supplies from being delivered at the door, or that obstructed free trade in every neighborhood of the town. Regular markets, market-houses and places in such towns are hardly a necessity, and their convenience may be more than counterbalanced by the inconvenience of the restrictions necessary for their support. But in St. Louis it is very different. It-has already become a town of great size, and is rapidly growing. The central and older parts are closely covered with buildings, with no ventilation but the narrow streets, and they, with all the convenience of street cars, constantly crowded. The burning heat of a large portion of the year brings rapid decomposition, and, without constant vigilance, would bring pestilence to every door. Public convenience, public decency, and public health demand that'convenient and cleanly places, of easy inspection, should be provided for exposure for sale of all perishable and, especially, dressed articles of table consumption. In obedience to this demand, the city has erected large and expensive market-houses, and, at great cost, has secured grounds around them for the convenience of buyers and sellers. Let those who object to this action, or to the restrictions necessary to sustain it, imagine for a moment the condition of the streets and sidewalks, the effect upon fresh meats and tender vegetables of exposure to the soot and dust and heat of crowded blocks, if the market system were abolished. But if the system be adopted, and no one imagines it can be dispensed with, it must be supported by such restrictive legislation as shall make it exclusive;
The judgment of the Criminal Court is affirmed.