Ex parte Canto
- Reporters:
- , ,
- Before:
- Hurt
Gus Cаnto was arrested upon the charge, regularly made, of selling fresh beef to one James Gilliard, within market hours, at a place in the city of Bryan, оther than the market house of said city.
There was an ordinance of sаid city prohibiting such sales. Canto, believing this ordinance and prosecutiоns thereunder to be void, sued out the writ of habeas corpus. The writ was grantеd, and tried before the honorable county judge of Brazos county, the trial resulting in the applicant being remanded to custody, and from such order hе appeals to this court.
The first proposition relied upon by counsel for the applicant is, that the city had no authority under its charter tо pass such an ordinance. The charter grants authority “ to regulate the erection, use and continuance of market houses.” “In England the regulation of markets by by-laws has long been exercised, and such by-laws are sustained as being reasonable and conducive to the health and good gоvernment of the municipality. In this country, however, the practice is almоst universal on the part of the Legislature, to confer upon the municipal agencies more or less authority w-ith respect to markets and mаrket places; and such grants are not so strictly construed as those which invest the corpоration with powers of a more extraordinary arid unusual charactеr.” (Dill, on Munic. Corp., sec. 380.)
Tested by the above principle, and, for the purpose of this argument, conceding that the authority must he granted, we are of the opiniоn that the charter of the city of Bryan confers such authority.
The second ground’ relied upon by appellant as a reason why said ordinance is void is, that said ordinance, under the facts of this case, creates a monopoly; and that, to force appellant to patronizе the city market would have the effect to encourage and foster the monopoly. When this supposed offense was committed, the city was in control of the market house by lease from the owner, Mr. Lasker, and by оrdinance each person occupying a stall must pay for the use to the city the sum of thirty dollars per quarter, and each person occupying a stand five dollars per quarter.
“The power to make by-laws relative to the public houses, etc., while it would not authorize a corрoration entirely to prohibit the sale of meats, etc., within its limits, becausе this would be in general restraint of trade, will, nevertheless, authorize a by-law fоrbidding the hawking about or selling meats, etc., by *64retail, except at the publiс markets, and within certain limits about the same.” (1 Dill. on Munic. Corp., 386.) Nor will the exaction of a reasonable amount as a license from those occupying stalls and stands in the public market house create a monopoly. From the faсts of this case, the price for the stalls and stands appear to us tо be quite moderate and reasonable. (1 Dill. on Munic. Corp., 385-387.)
The third ground for holding that the ordinance was void, urged by the appellant is, “that there was no competent evidence of the passage of the same.” It appears that the mayor’s office, after the passage of thе ordinance in question, had been destroyed by fire, and that said ordinancе was then destroyed, but that the city had a printed compilation of the оrdinance, which was made in 1877, and that Judge Smith, the city attorney, had carefully compared this with the originals in the minutes, and he swears that the compilation of 1877 was correct. Under, the circumstances, this evidence was cоmpetent and sufficient to establish the ordinance in question. (1 Greenl. Ev., sec. 91.)
We, have examined the material matters presented in the record, and are of opinion that there is no error in the record.
Affirmed.