258 N.W. 569 | Minn. | 1935
Plaintiff for a long time has conducted a retail jewelry business in Rochester. Resorting to public auction to dispose of some of his stock, he was met by the ordinance hereinafter considered. He could not conduct auction sales of his jewelry without violation of the ordinance or a license pursuant thereto. Declining to take out a license, he commenced this action to enjoin its enforcement, his claim being that it is invalid.
The ordinance in question, No. 438, is one, according to its title, for the "licensing, conducting and regulating" of all auction sales within the city. It prohibits the conduct of such sales by anyone *372 not licensed to do so under the ordinance. It provides for licenses to be issued by the common council. Prerequisite to the license is a bond of $1,000 and the payment of a minimum fee of $250. True, the daily license is but $25, but none can be issued unless for a minimum period of ten days. There are other provisions which need not be examined.
It is not suggested that the ordinance can be justified as a taxing measure. City of Mankaro v. Fowler,
"To license and regulate gift, fire, auction or bankrupt sales, and to license and regulate itinerant merchants and transient merchants or vendors, agents and solicitors for stages, cars, vehicles or public houses."
Section 103, in a few instances, does specifically delegate to the city the power to "prevent," for example, "the incumbering of streets, sidewalks, alleys," and some other things that might become nuisances.
1. The weight of authority seems to be, and with good reason, that the delegation of the power to regulate and license does not carry, by implication, the power to prohibit. The argument has been put thus: "The power to regulate does not properly include the power to suppress or prohibit, for the very essence of regulation is the existence of something to be regulated." Ex parte Patterson,
2. As a police measure, the involved ordinance, in its exactions of a minimum fee of $250, is obviously unreasonable as a mere regulation. The burden thereby imposed is so great (that is established by the evidence) as to be in effect a prohibition. For that reason it cannot be sustained.
In State ex rel. Cook v. Bates,
The judgment is reversed. *374