Barling v. West , 29 Wis. 307 ( 1871 )

Cole, J.

It appears to us that the acts of the defendants which are complained of, if justifiable at all, must be justified upon one of two grounds: either, first, because the place where the temporary lemonade stand was placed was a part of the sidewalk which was used by the public, and which the plaintiff was obstructing in an unlawful manner, so as to make it the duty of the officers of the village to remove the obstruction at once, in order that the citizens generally might have free passage there; or, secondly, that the ordinance which required the plaintiff to procure a license to sell lemonade at that place was a valid legal ordinance which the officers had a right to enforce in the manner they attempted to do in this case. If either of these propositions can be successfully maintained, then, perhaps, the acts of the defendants in summarily arresting the plaintiff under the circumstances disclosed in the evidence might be justified; otherwise we do not see low they can be. The circuit court, among other things, instructed the jury that if the plaintiff, when arrested, was resisting the defendants, or either of them, while acting as officers in the lawful discharge of their duty, or if he was committing any breach of the peace, then the law authorized them to arrest him without process, and take him before a magistrate, using no moie force than was necessary for that purpose. This,, of cour®, was equivalent to telling the jury that the acts of the defeidants were justified if the plaintiff was doing anything which amounted to a breach of the peace, or was resisting the defendantswhile in the discharge of any legal duty. And it is not claimeL that the defendants would not have the right to remove the Imon-ade stand, providing it was obstructing .the sidewalk n an unlawful manner. But the circuit court further instructd the jury upon that point, that the undisputed evidence in th< case showed that the plaintiff had the legal right to retain the stand in that place, although it may have collected a crowd which temporarily obstructed the street, because it appeared that the rights of Treat & Co., — under whose authority the plaintiff acted, — to use for that purpose the place where the stand was located, was, at the time, paramount to any light which the public had to use such place as a street. It is objected that this charge withdrew entirely from the consideration of the jury the question whether the lemonade stand was erected on the sidewalk which was used by the public, so as to be an obstruction in the public street. This may be true, but we think the charge of the court was fully warranted by the facts in the case.

The ordinance of May 4th, 1858, under which the block of stores was erected, one of which was occupied by Treat & Oo. — the plaintiff’s employers, — provides that the sidewalk on the west side of the square should be fourteen feet in width; the outside ten feet, or the ten feet thereof next to the traveled part of the street should be of a uniform grade, and should be kept clear of all obstructions of whatever kind, permanent or temporary, leaving the inside four feet next the stores without any grade, and to be occupied for the use of the stores. This, we think, is a fair construction of that ordinance. And it appears that the owners of the stores along the west side of the square have occupied the inside four feet for cellar ways, open and uncovered, but protected on the sides by iron railings from two and one half to three feet in height, which put out from the buildings along the margin of the cellar-ways; also, for stairways and places where tables are placed for showing goods, and for keeping boxes and barrels. And it was upon this inside four feet space, thus occupied by the owners of the stores for private use under this ordinance, that this lemonade stand was placed. This undoubtedly amounted to a permission and sanction on the part of the village authorities to the use of this inside four feet of ungraded walk in this manner by tbe owners of tbe stores. And, after, having thus sanctioned for years such an occupation of that space for private use, we think the officers of the village had no right to treat the stand erected there as being an unlawful obstruction of the sidewalk. True, there was another ordinance produced and read in evidence, relative to obstructions to streets and sidewalks, which provided, in substance, that no person should deposit on any sidewalk or in any street in the village any lumber, wood or other substance which might in any manner obstruct the free passage of the same, without the written permission of a majority of the board of trustees. But it is very' obvious that this ordinance was not intended to apply to this inside four feet, because the cellar-ways and iron railings which had been placed and erected there effectually prevented any passage over that space by the citizens.

Indeed, it is very manifest from the whole case, that the defendants did not claim the right in the first instance to remove the lemonade stand because it was an unlawful obstruction of the sidewalk, but upon another ground, which we will soon proceed to notice. So that any attempt to justify the trespass upon the ground that the lemonade stand was an obstruction to the sidewalk must, we think, be unavailing, and need not further be considered. And the charge of the court upon that point, was fully authorized by the facts established by the evidence. The charter of the village conferred upon the trustees power to enact and enforce all such ordinances, rules and bylaws “ for the government and good order of the village, for the suppression of vice, for the prevention of fires, for the benefit of trade and commerce, and for the health thereof,” as they might deem expedient. Section 17, chap. 48, Pr. and Local Laws of 1858. Under the power thus conferred, the trustees enacted an ordinance prohibiting, among other things, the sale, at temporary stands or tables, “ of any lemonade,” etc., within the corporate limits, — with an exception not necessary to be noticed here,— without the person selling the same first obtained a license tberefor, under a penalty of ten dollars for eacb day or part of a day such person should so sell. The plaintiff clearly came within the prohibition of this ordinance; and, if the same is valid, we will assume for the purposes of this case that it would justify the defendants in attempting to enforce it in the manner they did. But we are clearly of the opinion that the ordinance itself, so far as it attempts to prohibit the sale of “lemonade, ice cream, cakes, pies, cheese, nuts, fruits,” etc., without a license first obtained therefor, is in contravention of common right, is unreasonable, and must be declared void.

It is a perfectly well established principle of law, that a municipal by-law or ordinance must not be inconsistent with or repugnant to the constitution and laws of the United States or of this state; that it must be reasonable, and in harmony with the principles of the common law. Hayes v. The City of Appleton, 24 Wis., 542 ; Dunham v. Trustees of Rochester, 5 Cowen, 462; Austin v. Murray, 16 Pick., 121; The Mayor, etc., of Mobile v. Yuille, 3 Ala., 137; and authorities cited. Now the sale of lemonade, ice cream, cakes, fruit, etc., is a perfectly lawful trade, and its restraint or regulation is not demanded by the public welfare; nor for the “ good order of the village ”; nor “for the benefit of trade and commerce ”; nor for the public health of the citizens. Why, then, should the business be prohibited, or a person engaged in it be required to procure a license to carry it on, as if it were immoral or prejudicial to the public health, or to the good order of society ? It seems to us that the ordinance is an invasion of private rights and an unwarranted interference with an entirely innocent, and lawful business. In the case of Hayes v. The City of Appleton, supra, the chief justice remarks that a municipal by-law or ordinance “ must be such as prudence and reason require, not unnecessarily prejudicial to private rights and interests, and not inconsistent with the laws of the state.” And in Austin v. Murray, supra, Wilde, J., observes that “the illegality of a by-law is the same, whether it may deprive an individual of the use of a part or of the whole of his property; no one can be so deprived unless the public good requires it. And the law will not allow the right of property to be invaded, under the guise of a police regulation for the preservation of health, when it is manifest that such is not the object and purpose of the regulation.”

In the present case, the ordinance is a clear and direct infringement of the rights and privileges of the individual citizen who may wish to sell lemonade, cates, fruit, etc., within the corporate limits of the village of Monroe, and is wholly unauthorized and most unreasonable. Nor can the power of the trustees to enact the ordinance be sustained under the taxing power. The ordinance was doubtless adopted with a view to revenue. But the power of raising money by taxation to defray the necessary expenses of the corporation, to meet its debts and various liabilities, is fully conferred in other provisions of of the charter. And the right to enact and enforce proper ordinances does not imply or include the right to charge a license for engaging in a business which is perfectly innocent, and sanctioned by the general laws of the state. If there were any facts showing that this ordinance, requiring a license to sell lemonade, was essential for the health and good order of the village, it was incumbent upon the defendants to prove them on the trial. Hayes v. The City of Appleton. We are unable to conceive of any reason why the sale of such an innocent drink should be prohibited or restrained. The ordinance must therefore be declared void, and consequently would afford no justi-cation for the acts of the defendants.

These remarks dispose of the case.

By the Court. — The judgment of the circuit court is affirmed.