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$ 2073. License for retail of perfumery.— The power conferred upon the corporation of Washington, “to provide for the licensing, taxing and regulating of auctions, retailers, ordinaries and taverns, hackney carriages," etc., does not warrant the requirement of a license to retail perfumery; the word retailers” in the charter, referring to retailers of wines, rum, brandy, whisky, or other distilled spirituous liquors. Carey v. Corporation of Washington,* 5 Cr. C. C., 13. See II, infra.
$ 2074. The by-laws of the corporation of Washington must not be repugnant to the general law of the land, further than such by-laws are justified by the express provisions of the charter. By the general law of the land free colored persons have a right to exercise any lawful trade or calling which white persons may exercise. A by-law forbidding them to do so is contrary to the general law of the land, and void, unless authorized by the charter. The selling of perfumery is a lawful business or occupation. No express power is given by the charter to the corporation to prohibit or restrain it, or to license it, or to require a license to use or pursue it. The exercise of it is not in itself a nuisance. The corporation has no authority, under the power to lay and collect taxes,” to require the person exercising it to obtain a license to do so, for the power given by the charter to lay and collect taxes is only “to lay and collect taxes on real and personal property." The licenses which the corporation may require are expressly designated, and are confined to "auctions, retailers, ordinaries, taverns, hackney carriages, wagons, carts and drays, pawnbrokers, vendors of lottery tickets, money changers, hawkers and peddlers, and theatrical and other shows and amusements.” Their express power of restraining and prohibiting is confined to “tippling houses, lotteries, and all kinds of gaming, and nightly and other disorderly meetings of slaves, free negroes and mulattoes.” They have also an implied power to restrain and prohibit whatever may be inconsistent with such regulations as may be necessary to prevent the introduction of contagious diseases and for the preservation of the health of the city; whatever may be a common nuisance; whatever may injure the navigation of the Potomac and Anacostia rivers adjoining the city; and, in short, whatever may be inconsistent with the regulations which they have any express power to make. But the right to sell perfumery is not real or personal property which can be taxed as such; it is not within the list of licenses authorized by the charter; nor is it one of the matters which may be restrained or probibited by any express provision of the charter; nor can it injure the health of the city or be in itself a nuisance. I think, therefore, it cannot be prohibited. (Per Cranch, C. J.) Ibid.
8 2075. Regulating manufacture of brick.- Where a by-law of a municipal corporation made it penal to erect or use a lime or a brick kiln without a license, and did not restrict the operation of the by-law to the limits of the city, and there was no officer of the city who had authority to grant such a license, the by-law was held void for want of power in the corporation. Ward v. Corporation of Washington, 4 Cr. C. C., 232.
$ 2076. Authority given a municipal corporation to prevent nuisances, and to superintend the health of the city, is sufficient authority to prevent the manufacture of brick within the city, without a license. Ibid.
$ 2077. Quarantine.- The board of health of a city, having power to detain vessels upon which malignant disease has appeared, has no power to detain them after there is no longer any appearance of malignant disease upon them, and the process of cleansing and purification is at an end. Sumner v. City of Philadelphia.* 18 Int. Rev. Rec., 143. · $ 2078. Contract with gas company — Estoppel.- A city's contract with a gas company conferred upon it the exclusive privilege for twenty years, and until thereafter notified to the contrary, of lighting the city with such public lamps as might be agreed upon between the parties, and also the right to lay down its pipes, and extend its conductors and other apparatus through all or any of the streets, alleys, lanes or squares, and to exercise all the rights granted by the charter, without any other charge or tax by the city than upon the estimated value of their house and lot and $100 per annum.
“Still further to encourage the company, the city agree to take fifty lamps to begin with, to be extended hereafter as the public wants and increase of the city may demand, and such as may be agreed on by the company and the city; and the company, on its part, agree, in consideration of the said several grants, concessions and privileges, to furnish the city, for the use of its public lamps, gas at one-half the price they charged their private consumers. Held, that this contract did not estop the city from subscribing to the stock of a new gas company. Memphis City v. Dean,* 8 Wall., 75.
8 2079. Granting franchises.— It is very doubtful whether the legislature can delegate to any municipality or other corporate body the power to grant a franchise, as the exercise of that power involves a high trust, created and conferred for the benefit of those who granted it; and as the trust is confided to the legislature, it must remain where it is vested until the constitution of the state is changed. People's R. Co. v. Memphis R. Co., * 10 Wall., 50.
8 20:0. San Francisco.- The board of supervisors of San Francisco is limited in its authority by the act consolidating the government of the city and county, It can do nothing unless warrant be found for it there, or in a subsequent statute of the state. The consolidation act is the source and measure of its powers. Ah Kow v. Nunan, 5 Saw., 552.
& 2031. The board of supervisors of San Francisco possesses no general powers, and its special power to determine the fines, forfeitures and penalties which may be incurred is limited to two classes of cases: (1) Breaches of regulations established by itself. (2) Violations of the provisions of the consolidation act, where no penalty is provided by law. It can impose no penalty in any other case, and when a penalty other than five or forfeiture is imposed, it must, by the terms of the act, be in the form of imprisonment. Ibid.
$ 2082. The board of health of the city and county of San Francisco has general supervision of all matters appertaining to the sanitary condition of the county jail. Only in exceptional cases would the preservation of the health of that institution require the cutting of the hair of any of its inmates within an inch of the scalp. Ibid.
$ 2053. The “queue" ordinance of San Francisco, providing that every male person imprisoned in the county gaol under a judgment of any court having jurisdiction in criminal cases in the city and county, shall immediately upon his arrival at the gaol have the hair of his head “ cut or cropped to a uniform length of one inch from the scalp thereof,” and making it the duty of the sheriff to have this provision enforced, is beyond the power of the board of supervisors of San Francisco. Ibid.
SUMMARY - Street railway companies in Illinois, SS 2034, 2085. 8 2084. Any Illinois city can grant or refuse licenses to street railway companies, and may impose a license fee upon them of $50 per car. Allerton 1. Chicago, SS 2086-87.
$ 2085. Street cars are included under the provision of the Illinois statute authorizing cities to license hackmen, omnibus drivers, and others pursuing like occupations. Ibid.
[NOTES.— See SS 2088–2098.]
ALLERTON v. CHICAGO.
(Circuit Court for Illinois: 9 Bissell, 552–559; 6 Federal Reporter, 555. 1880.)
Opinion by DRUMMOND, J.
STATEMENT OF Facts.— On March 18, 1878, the council of the city of Chicago passed an ordinance requiring the companies which operated street cars for the conveyance of passengers upon any line of horse or city railway within the city of Chicago to obtain a license in the month of April of each year, and pay for the same the sum of $50 for each car. A penalty was imposed for failing or refusing to take out a license. The company obtaining a license was required to place conspicuously in every cár so operated and run in the city, a certificate signed by the city clerk, and giving the number of the car, and stating that a license had been obtained, and that the necessary fee had been paid; and a penalty was also imposed for a failure to post or keep such certificate in
$ 2086. Street cars are included under the provision of Illinois law which authorizes cities to license hackmen, omnibus drivers and others pursuing like occupations.
The only question in the case (which arises on a demurrer to the bill of complaint filed by a stockholder of the city railway company to enjoin the payment of the license fee) is whether this ordinance is valid. Several corporations operating street cars in the city of Chicago have been authorized to construct their railways and operate them by various ordinances which have been from time to time passed; and these ordinances have been recognized and affirmed, many of them, by the legislature of the state. By virtue of these ordinances and acts of the legislature, the companies have the right to run their cars for the transit of passengers through the city. It cannot be said, therefore, that the effect of the ordinance which has been specially referred to, although it is called a license, would be to give the companies the privilege of running their cars, That they have by virtue of the ordinance and the acts of the legislature. There can be no doubt that the legislature would have the right, under the constitution of 1813, which was in force when the franchise was granted, to tax the corporations for the use of their franchise. That is a tax which is entirely independent of the value of the cars, tracks and other tangible property of the corporations, and so treated by the constitutions of 1848 and 1870. But there are many difficulties with this branch of the subject. There are certain conditions required by the constitution of 1870, as prerequisites to the imposition of a tax of this kind, even conceding that the legislature has authorized the city to impose the tax, and I, therefore, without giving any decided opinion upon that part of the case, prefer to place my decision upon another ground, and to sustain the ordinance as a regulation of the police power of the city. This is always a subsisting power which it is generally held cannot be transferred by the city, but is inherent in its municipal organization. There can be no controversy about the power of the city over many things connected with the operation of the city railway. If we admit that because of the price of fare agreed upon there can be no change in that, yet by virtue of its police power, the city can, to a great extent, regulate the running of the cars, prescribe rules and laws as to speed, stoppage, and other things connected with the operation of the railway. This has not been questioned by the counsel of the plaintiff; but it is claimed that this cannot be considered a police regulation, because it is manifestly the exercise of the taxing power of the city. It is argued that the price of the license is so large that the intent is manifest. It is very difficult to lay down any absolute rule upon this subject, to the effect that a particular sum may be within the police power of the city, and another sum beyond the power, and a mere tax.
By the general law of 1872, for the incorporation of cities and villages in this state, it is provided that the city council in cities shall have authority to license hackmen, draymen, omnibus drivers, cabmen, expressmen, and all others pursuing like occupations, and to prescribe their compensation. III. Rev. Stat., ch. 24, sec. 1, clause 41. This was obviously intended to confer a police power upon the city council in relation to the various classes named in the statute. This is a power that has been uniformly exercised, and, construing the statute literally, cannot well be questioned. But it is claimed that it does not include the street railway, because it is not pursuing an occupation like any of those named.
$ 2087. Companies operating street cars may be required to pay a license. It is a valid exercise of the police powers of the city.
Omnibuses may be licensed. They may pass over even the same streets as those occupied by the horse railways, and they may carry passengers in the
The only distinction which can be called substantial between the two classes of occupation is that one carriage goes upon iron rails, in a regular track, with wheels, and the other carriage goes with wheels upon the ordinary street way. The supreme court of Pennsylvania has held that these street railway carriages are of a like nature as omnibuses, and there can be no doubt, I think, of the right of a city to demand a license from all omnibus drivers, and to include every omnibu3 which may belong to a particular company or corporation, and to require the payment of a license for the omnibus that may be so owned and used. The court of appeals of New York, in the
case of Mayor v. Second Avenue R. R., 32 N. Y., 261, held that an ordinance of the city of New York, in many respects like this, was invalid, as an attempt, through color of a license, to impose a tax upon the railroad company, refusing to treat it as an exercise of the police power of the city. The price charged in that case for the license was the same as in this. In the case of Frankford & Philadelphia Passenger Co. v. City of Philadelphia, 58 Penn. St., 119, where the license fee was the same, and Johnson v. Philadelphia, 60 Penn. St., 445, the supreme court of Pennsylvania took a different view of such an ordinance, and treated it as a police regulation merely; and such seems to be the view of the supreme court of this state in the case of The Chicago Packing & Provision Co. v. City of Chicago, 88 III., 221.
In the case of Frankford & Philadelphia Passenger Co. v. City of Philadelphia, the city obtained its power to impose the license from a statute substantially similar to that under which the city of Chicago claims the power in this
In that case the act of the legislature declared that the city council of Philadelphia had authority to provide for the proper regulation of omnibuses or vehicles in the nature thereof, and to this end "it shall be lawful for the council to provide for the issuing of licenses to such and so many persons as may apply to keep and use omnibuses or vehicles in the nature thereof, and to charge a reasonable annual or other sum therefor.” In that statute the words " vehicles in the nature thereof;” in this, the words “pursuing a like occupation,” are used. I cannot see that there is any substantial distinction in that respect between the two statutes. In the case in 88 Illinois, already referred to, the corporation was organized and doing business under the laws of this state. A question arose in that case as to the power of the city to issue a license. It was denied in the argument of the case that the power existed, but the supreme court held that under the power “to regulate the management” of the business, the city had the right to issue a license, and to prescribe the compensation. That was also under the same law, the act of 1872, which conferred power upon cities to grant licenses and regulate omnibus drivers, and all others pursuing a like occupation, and to prescribe their compensation. The supreme court of this state decides in that case that the power to require a license is one of the means of regulating the exercise of a pursuit or business; that there are other means that might be adopted to accomplish the purpose, but that these municipal authorities are not restricted as to the means they shall employ to regulate the business; and various authorities are cited by the court in support of the view which they take; and they repeat the ruling which had been previously made, that a license was not, in the constitutional sense of the term, a tax.
The supreme court have also considered and passed upon a question which has been discussed in this case, namely: whether or not the act which gare the authority to the city to license was a general law under the constitution of this state; and they held that it was, and that it was intended to apply to all cities which might adopt it. It is true that was a case of licensing a business which was generally admitted to be injurious in its character to those near the place where it was carried on; but it was a question of power, and the point in controversy was whether the city of Chicago had the right to exercise the power of licensing. The license fee demanded in that case was $100. It seems to me that the question involved in this case arose substantially in that, and it was decided by the supreme court of the state that it was a valid exercise of the power to regulate a particular business. That is also the view taken by the supreme court of Pennsylvania in the cases referred to. In view of these decisions and of several decisions of the supreme court of the United States within the last few years (Munn v. Illinois, 94 U. S., 113, and others), I think the weight of authority is in favor of regarding this as a police regulation. See, also, Railway Co. v. Philadelphia, 101 U. S., 528.
One of the difficulties I have had with the case has been whether it should be regarded as a tax for revenue under the form of a license. It may be con ceded that the argument is strong for treating it as a revenue measure; but as I before stated, there are some objections which I consider very weighty, and which would prevent me at this time from placing the decision on that ground. It may be admitted that, viewing it as a police regulation requiring the payment of a fee for the license, in amount it goes to the verge of the exercise of police power; but as other courts have held that such a tax did not exceed that limit, I cannot hold that it does in this case; and therefore I shall, as at present advised, sustain the ordinance in question as a valid exercise of the police power of the city council.
There have been some arguments used by counsel which, I think, do not properly apply to the pleadinys. It is insisted that the court must construe this as a tax, and not a mere police regulation. It is admitted that the court of appeals of New York did construe a similar license fee as a tax. The supreme court of Pennsylvania has given a different construction, and held it to be a police regulation. There is nothing in the bill by which the court can regard it absolutely as the exercise of the taxing power of the city. There is nothing in the bill which would authorize the court to hold, if it were a tax, that it was in violation of the constitution of 1870, as not being uniform upon the particular class on which it operates. It is urged that it cannot be treated as a tax, because, if so, it would not be within this requisition of the constitution of 1870, because the street railways come in direct competition with some of the steam railways; as that of the Illinois Central to Hyde Park and the Northwestern to Evanston. There is nothing in the pleadings which would warrant the court in considering these facts, unless the court should take judicial notice that they do thus come in competition, without any allegation in the pleadings. Under the authorities, and upon the statements contained in the pleadings, the court cannot necessarily construe this as a tax. The court is at liberty, I think, to construe it as a police regulation. These views have been given for the purpose of enabling the parties, if they desire, to take the case to the supreme court of the United States. The district judge who heard the application for an injunction in the first instance, and granted it, is inclined to hold, as I understand, that this was not the proper exercise of the police power. I hold, for the purpose of deciding the case, that it is; and if the case is to be determined by the pleadings as they at present stand, it can be certified up to the supreme court as upon a division of opinion between the judges. If, however, the counsel desire to raise some of the questions which have been discussed in the argument, I think it would be advisable for them to amend the bill, and if they wish, leave will be granted for that purpose.
§ 2088. Granting license without bond.- Where a corporation grants a license contrary to law without taking the bond and security required by law, one who has thereby sustained special damage may maintain an action upon the case at law against the corporation. Fowle v. Corporation of Alexandria, * 3 Cr. C. C., 70.
$ 2089. The mayor and “commonalty ” of the town of Alexandria, in Virginia, was a corporation. The general assembly of Virginia, in 1796, authorized the mayor, aldermen and commonalty of corporate towns within Virginia to license auctioneers and take a bond from