Lawrence Lewis.

American and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] online

. (page 53 of 73)
Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 53 of 73)
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legislative purpose, it is a tax, and as such is unauthorized and uncollect-
able, unless the corporation has power to impose it for revenue purposes.
Mays z/. Cincinnati, i Ohio St. 268; Cincinnati v, Bryson, 15 Ohio, 625 ;
Freeholders v. Barber, 7 N. J. L. 64 ; Kip v, Paterson, 26 N. J. L. 298 ;
Bennett v. Birmingham, 31 Pa. St. 15; Commonwealth v. Stodder, 2
Cush. 562 ; Chilvers v. People, 11 Mich. 43; Mayor v, Yuille, 3 Ala. 137;
Johnson z/. Phila., 60 Pa. St. 451 ; State v, Herod, 29 Iowa, 123; Mayor
V, Second Ave. R. R. Co., 32 N. Y. 261 ; Home v, Ins. Co. v, Augusta, 50
Ga. 530.

But courts will not closely scrutinize a license fee with the purpose of
adjudging it a tax. Courts will not review municipal discretion in this
matter, unless it be manifestly unjust. "The subject" (i.e., what sum shall be
charged ?) says Graves, J., " will not admit of nice calculation, and it would
be futile to require anything of the kind." Van Baalen v. People, 40
Mich. 258; Ash V, People, 11 Mich. 347; Burlington v, Putnam Ins. Co.
31 Iowa, 102.

Miscellaneous Business Regulations.— In Wisconsin a banker or
broker who receives deposits, knowing himself to be insolvent or unsafe^
is punishable. Baker v. State, 54 Wis. 369.

Jacob's case, 98 N. Y. 98, decides that an act prohibiting the manufac-
ture of cigars or preparation of tobacco in any form on any floor, or in
any part of any floor, in any tenement house, if such floor or any part of it
was by any person occupied as a home or residence for the purpose of
living, sleeping, cooking, or doing any household work therein, was uncon-
stitutional, on the ground that it interfered with the profitable and free
use of the cigarmaker's or tobacconist's own property, or of the property
of the lessee of a tenement-house who is a cigar maker or tobacconist,
and trammelled them in their industry and the disposition of their labor,
and thus, in a strictly legitimate sense, arbitrarily deprived them of their
property and of some portion of their personal liberty. See also In re Paul,
18 N. Y. Week. Dig, 487.

In District of Columbia 7/. Saville, i McArth.583. an act provided in sub-
stance that no proprietor of a theatre shall, after the door of such theatre is
open for the reception of spectators, sell tickets so as to reserve particular
seats, or to mark or describe as reserved or taken any seats which have not
^n reserved by the sale of tickets therefor previous to the opening of such
exhibition. The act was held void. " In short," said the court, by Olin, J.,



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508 PEOPLE V. MARX,

** the provision is that when the doors of the theatre are opened forthe re-
ception of spectators, whoever purchases a ticket to enter the same may
plant himself in any unoccupied seat he can discover, unless the proprietor
can convince him that the seat he had selected had been sold prior to the
time of opening the doors of the theatre for the reception of spectators, or
at least before the commencement of the exercises, and this without refer-
ence to the fact whether the spectator purchased a ticket for twenty-five
cents which would entitle him to a seat in the upper gallery, or whether
he paid the price of the most desirable seat in the house.

" Indeed if this law can be enforced it is made a penal offence for the
manager or proprietor to reserve for the use of his friends a few desirable
seats, who, he thinks, by their presence and approbation, might give suc-
cess to his entertainment.

"He cannot, however, reserve these seats if not sold before the com-
mencement of the exhibition. Nay, under this section the proprietor or
manager of a theatre could not reserve a private box for himself and family
without incurring the penalty imposed in the third section of thcact."

The court, therefore, held the act not a police regulation, but an " un-
wise, vexatious, and unlawful interference with the rights of private
property. "

In Illinois an act requiring the owner or agent of a coal-mine or colliery
employing ten men or more to make, or cause to be made, an accurate map
or plan of the workings of such coal-mine or colliery was held constitu-
tional. Daniels v, Hilgard, ^^ 111. 640.

In Robinson v, Hamilton, 60 Iowa, 134, a statute requiring ph3rsicians
and midwives to report births and deaths to the clerks of courts was held
not unreasonable nor unconstitutional; while in Washington Territory a
statute prescribing the qualifications of medical practitioners has been held
constitutional. Fox z/. Territory, 5 W. C. Repr. 339.

The police power of governments is all-pervading. It has never been
defined within narrow limits, and the foregoing are but a few of the mul-
titude of instances of its exercise. In the language of Judge Redfield in
Thorpe v, Rutland, etc., R. R. Co., 27 Vt. 140, under it "persons and
property are subjected to all kinds of restraints and burdens in order to
secure the general comfort, health, and prosperity of the State ; of the per-
fect right to do which no question ever was, or, upon acknowledged
general principles, ever can be. made, so far as natural persons are con-
cerned." It need only be added that artificial persons are, as well as
natural persons, subject to its legitimate exercise.



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BARTHET V. CITY OF NEW ORLEANS. 509



Barthet

V.

City of New Orleans.

{Advance Case, Louisiana, U, S, Circuit Court, July, 1885.)

An ordinance of the city of New Orleans prescribed the place where
slaughter-houses must be located. Relying upon this designation of such
place, complainant secured land within its limits and proceeded thereon
to erect houses and make other improvements for slaughtering purposes,
when the city amended the ordinance by making it unlawful to maintain
slaughter-houses in the prescribed place " except permission be granted by
the council of the city of New Orleans," and proceeded to prevent com-
plainant who had no such permission from carrying on his slaughtering
business.

Held, that the amendment is unconstitutional because it would in effect
deny complainant the equal protection of the laws guaranteed, by the
XI Vth Amendment of the United States Constitution.

The prevention by the city of complainant's exercise of his business is
enjoinable in equity, as being likely to do him irreparable injury for which
damages at law would be no adequate compensation.

Rule to show cause why an injunction pendente lite should
not issue.

A. H. Leonard and E, Sabourvin for complainant.
W. H. Rodgers for the city.

BoARMAN, J. — Article 258 of the constitution of Louisiana
prohibits any monopoly. Article 248 invests the defendant
city with power to regulate the slaughtering of cattle, etc.,
within its limits, provided no monopoly or exclusive privilege
exist within the State. Nor shall such business be facib.

restricted to the land or houses of any individual or corpora-
tion ; and provided, further, the place designated for slaugh-
tering is approved by the board of health. By several ordi-
nances, approved by said board, the city designated the place
at which the slaughtering of cattle may be carried on, and
prescribed in detail the regulations under which such busi-
ness should be conducted.

The complainant, a citizen of France, whose trade and busi-
ness is the slaughtering of cattle for food, desiring and in-
tending to engage in such business in New Orleans, leased,



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5IO BARTHET V. CITY OF NEW ORLEANS*

with the privilege of buying, two squares of ground situated
within the limits defined by said ordinances, and proceeded
to repair such buildings, and construct on said ground other
buildings and improvements suitable for the trade in which
he is engaged, investing in said improvements a considerable
sum of money. Subsequently, on May 19th, an ordinance was
passed by the council which is styled " An ordinance amend-
ing ordinance 7336, as passed September 13, 1881, designating
the places for slaughtering animals intended for food under
article 248 of the constitution." The original ordinance pro-
vided that ** it shall be lawful for any person or corporation
to keep and maintain slaughter-houses, etc., within certain
limits, under certain regulations/* The amendment mentioned
makes it unlawful to keep and maintain slaughter-houses
within said limits prescribed in original ordinance, and under
said regulations, "except permission be granted by the
council of the city of New Orleans."

It appears that defendant corporation intends actively to
enforce, or attempt to enforce, as against Barthet, the amended
ordinance ; that it is about to obstruct, hinder, and prevent
him from carrying on his legal business in the limits already
laid out in pursuance of article 248.

The complainant, alleging that, acting on the good faith of
said articles and ordinances, he has acquired vested rights,
and that the ordinance of May 19th is unconstitutional, brings
a bill for injunction to enjoin and restrain the defendant from
interfering in any manner with him in carrying on his busi-
ness. Complainant prays, on final hearing, for an injunction
absolute, and in the meanwhile has taken this rule to show
cause why an injunction pendente lite should not issue.
Defendant has filed no answer or made any denials, even in
argument, of complainant's allegations.

The amendment of May 19th is, we think, unconstitutional,
in the fact that if it is carried out, as the city attorney admits
it will be, it will make Barthet's right to engage in a lawful
SSSSS"*^" **' business dependent on the arbitrary will of an in-
dividual or body of individuals acting for the city. The city
has no governmental or special power to prevent any one who
<5omplies with the law regulating such business from engaging
in any lawful business he prefers.

The fourteenth amendment to the United States constitu-



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BARTHET V. CITY OF NEW ORLEANS. $11

tion forbids any State to make or enforce any law which shall
abridge the privileges or immunities of citizens of the iJnited
States, and prohibits a State from denying to any person
*** Avithin its jurisdiction the equal protection of the law."
That amendment does not enlarge the rights of persons ; it
clearly recognizes and emphasizes principles imbedded in the
cC>nimon law, and which underlie the structure of all free
governments.

The right to grant permission to A to carry on his lawful
business carries with it necessarily the power to deny permis-
mission to B to exercise the same privilege. The complainant
is entitled, in common with all persons, to equal protection.
Applying this principle to this case, as it is made up by the
bill and admissions of the city's council, Barthet is entitled to
carry on his trade within the limits already laid out by the
cit3' in pursuance of the articles herein cited. If the city
council, as the matter now stands, can prevent him from so
doing simply because he has not their permission, then he has
not that equal protection of the law guaranteed in the consti-
tution. The ordinance of May 19th transcends not only the
limitations or legislative authority presented in the constitu-
tions of the Federal and State governments, but in our opinion
it transcends those limitations, also, which spring from the
very nature of free government.

The city council have the right, generally, in the exercise of
governmental powers, such as belong to municipal corpora-
tions, to regulate the business of slaughtering ani- f^S^"^'' ^^
mals for food ; but under the articles 248, 258, State constitution,
— responsive as those articles are to a public sentiment long
oflfended in this city by oppressive monopolies in the slaugh-
tering of cattle for food, — it must be apparent that the city
cannot, directly nor indirectly, prohibit the business of this
complainant under the pretence of exercising an ordinary
governmental police power. It is clear that those articles
were intended to prohibit all monopolies, and to limit rather
than to enlarge the police powers of the city in relation to
slaughtering cattle, etc., and if the city can refuse to permit
Barthet to carry on his business, it can adopt the same course
with others. By giving its permission to an individual or to
a corporation, and refusing it to all others, a monopoly could
be established by the favored suitor. An ordinance which



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$12 BARTHET V. CITY OF NEW ORLEANS.

permits one person to carry on an occupation within municipal
limits, and prohibits another who had an equal right from
pursuing the same business, is void. So, also, is an ordinance
which alleges the rights and privileges conferred by the
general law of a State. Cooley, Const. Law, 243, 245-247,
155,202,491.

If the amendment of May 19th becomes operative as a law,
the investment made by Barthet, on the faith of the law exist-
ing when he erected his buildings, will be lost or greatly
diminished in value, and his privilege, which is of more value,
may be wholly destroyed by the refusal of the city. It is
urged in argument that the corporation is a legislative body,
endowed with police powers, to be exercised with absolute
discretion ; that this court has no power to control or limit
its action in directing when, and upon what particular lot in
the territory laid out and defined by the city, Barthet, or any
other person following the same business, may locate and
carry on his business of slaughtering animals for food. The
proposition of the city attorney, in view of the many cases
that have been decided by the State and Federal courts, in
which just such assumptions of power have been contended
for and denied to municipal authorities, need not now be con-
sidered, further than to say that the court does not think the
proposition maintainable under the law and facts found on the
hearing of this bill.

The city does not deny the equity of the bill, nor does she
deny that she intends to hinder and prevent Barthet from
rSSS?atulw. carrying on his business in the territory laid out;
but it is contended that in these proceedings an injunction will
not be allowed because the complainant has an adequate remedy
at law ; that if he is damaged he can recover fully at law. It
is true that the sixteenth section of the judiciary act prohibits
suits in equity when there is a plain, adequate, and complete
remedy at law; but in Boyce's ExVs v, Grundy, 3 Pet. 210,
the court said, referring to that section, that " it is merely
declaratory on the subject of legal remedy. It is not enough
that there is a remedy at law ; it must be plain and adequate ;
or, in other words, as practical and efficient to the ends of
justice and its prompt administration as the remedy in equity."
It does not appear that the adoption of the statute mentioned
has impaired the jurisdictional powers of the equity courts of



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BARTHET V. CITY OF NEW ORLEANS. 513

the United States for the protection of the property of indi-
viduals, or the privileges that belong, as a common right, to
all persons to whom the courts are open for the administration
of justice. The jurisdictional power of these courts is cer-
tainly not less now than it was in England at the time of the
adoption of the constitution. The English authorities show
that the granting or continuance of an injunction cannot be
controlled by any inexorable rule, but that such orders
must rest largely in the sound discretion of the court, to be
governed in each case by the equitable rights of all parties^
as well as by the nature and effect of the relief sought in the
particular case. To grant such writs to prevent an irrepara^
ble injury is quite common.

The defence of the city is not based upon any denial that
she is going to do the thing complained of ; but she seems to
rely wholly upon some several petitions, signed by several citi-
zens living in the neighborhood of the place where Barthet has
begun his business, protesting against allowing him to proceed
with his business. These petitions, if they had been season-
ably presented to the council, might have caused the partic-
ular place occupied by Barthet's buildings to be not included
in the limits ; but the counsel for the city would hardly be
considered serious should he rest the city's defence on the
merits of the bill upon such petitions or papers. An injunc-
tion, however, is not, in the Federal courts, issued as a matter
of course ; and it may be well to consider more definitely the
matter as to the jurisdictional power of the court to issue the
injunction prayed for. The buildings and improvements
were erected in the view of the city for the well-known pur-
poses of Barthet's trade. Would it not be inequitable and
violative of a proper, efl&cient, and practical administration
of justice to allow the city now to stop him in the exercise of
his lawful business, in the gratification of his legal rights, and
to turn him over to an action at law, against whoever should
become instrumental in executing the city's unconstitutional
ordinance, for the recovery of damages. If such is the effect
of the sixteenth section of the judiciary act, the courts of the
United States will find themselves often without power to
afford to suitors a practical and efficient administration of
justice.

We do not think the act complained of is an attempt at a mere
9 Cor. Cas.— 33



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514 BARTHET V. CITY OF NEW ORLEANS.

trespass. The mischief and injury it would work in this case
cannot be repaired as efficiently or as adequately by an action at
?i£5Si. "^ law for damages as in the case of a mere trespass
upon property. This is not a case where the city may or will
have an ultimate right to do the thing complained of, as some-
times happens when a city is attempting to do a thing lawful
to be done, but prematurely ; like, for instance, the taking of
property for streets before making th« compensation required
by law ; but the city can never do the act complained of
without violating Barthet's constitutional rights. In a govern-
ment like ours it may be said that any act which would
deprive a citizen of the j)ower to exercise his lawful trade or
privileges must be considered as working an irreparable
injury, particularly when the wrong-doer is attempting to do
an act clearly forbidden by the State and Federal constitutions.

Our opinion will be better understood when we say that
the city authorities have no j)ower, legislative, judicial,
or administrative, to pass the ordinance complained of;
because the power, by whatever name it may be called, dele-
gated to the city in articles 248, 258, as far as Barthet is now
concerned, was exhausted when the city officials laid out the
limits in which it was declared lawful to slaughter animals for
food. The bill shows that an unlawful act is threatened
against the privileges of complainant. In our opinion, such
an act, if carried out, would not only work an irreparable
injury to Barthet, but would be a decided step, whatever may
be the motive, causing the council to move in the matter, in
the direction of allowing a monopoly in the slaughtering of
animals for food in this city.

The injunction will be operative /^iMfe«/^ lite.

A City Ordinance Prohibiting the Maintaining of Slaughter-
houses WITHIN Certain Specified Limits, except on Permission
Granted by the City Council, is not an Infringement of the
XIVth Amendment of the Federal Constitution. — It is hard to sec
how the decision in the principal case can be supported. The court bases
its decision that the ordinance in question was an infringement of the
XIVth Amendment of the Federal Constitution on the clause of the
ordinance requiring permission of the city council to be obtained before
the business of maintaining a slaughter-house could be lawfully carried
on. The court held that this clause vests in the city council the absolute
right to grant or refuse permission as it shall see fit; that the council
might grant permission to A and refuse it to B, although there was no



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MAKER V. SLATER MILL AND POWER CO. 515

reason why the permission should be refused or granted in one case
more than in the other; and that this power to discriminate deprived
citizens of the equal protection of the laws within the meaning of the
XlVth Amendment. This reasoning is unsatisfactory. It would seem
clear on reason and authority that an ordinance prohibiting the maintain-
ing of slaughter-houses within the city limits, or within other prescribed
limits, was a valid exercise of the police powers of the sovereignty.
Metropolitan Board of Health v, Heister, 37 N. Y. 661 ; Inhabitants of
Watertown v. Mayo, 109 Mass. 315. If so, how can a provision that the
sovereignty may, in cases where it sees fit so to do, make exceptions to this
law by giving permission to certain persons or corporations to carry on the
prohibited business within the prescribed limits deprive any one of the
equal protection of the laws ? The law being that no one may carry on
the prohibited business, the exceptions made in case of persons permitted
by the council is a matter of favor, not of right. The fact that the law
may give scope for injustice and discrimination does not in the least affect
the constitutional question involved.

For a case similar to the principal case, except that the statute excepted
those slaughter-houses in existence at its passage, see Inhabitants of
Watertown v. Mayo, 109 Mass. 315. In that case, however, the question
of the constitutionality of the statute under theXIVth Amendment of the
Federal Constitution was not raised. The statute was held a valid exercise
of the police power to restrain and regulate the carrying-on of a business
likely to cause danger or annoyance to the public unless properly regu-
lated.



Maker

V.

Slater Mill and Power Co.

{Advance Case, Rhode Island, July 18, 1885.)

A statute requiring fire-escapes to be put upon certain buildings, but
not specifying who, whether the owner or a tenant, is to put them there,
nor when or how they are to be erected, and giving to an inspector a cer-
tain discretion as to exempting buildings from being equipped with fire-
escapes, but not definitely indicating the limits of such discretion, is too
vague and indefinite to sustain a criminal prosecution for its violation.

Trespass on the case. On demurrer to the declaration.

This is one of several cases brought against the defendant
for neglecting to provide fire-escapes in alleged violation of
Pub. Laws R. I., chap. 688, of April 12, 1878, in consequence



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,5l6 MAKER V. SLATER MILL AND POWER CO.

of which thf plaintiff was injured by a conflagration in the
building in which he was employed. See Grant v. Slater
Mill and Power Co., 14 R.J. 380; s. c, 30 Alb. L. J. 310;
Baker v. Same, 14 R. I. 53ri.

Spooner, Miller & Brown for plaintiff.

Charles Hart^ Benjamin T. Eames and Stephen A. Cooke^ Jr,^
for defendant

Stiness, J. — Plaintiff sues under Pub. Stat. R. I., chap. 204,
§ 21, claiming that he has suffered an injury to his person by
the commission of a " crime or offence" on the part of the de-
paotb. fendant. The crime or offence consists in an

alleged violation of the Building Act, so called. Pub. Laws
R. I., chap. 688, of April 12, 1878. Since the decision of the
court sustaining^ a demurrer to the declaration in Baker v.
Slater Mill and Power Co., 14 R. I. 531, complaint has been
made against the defendant, pursuant to Pub. Stat R. I., chap.
204, § 22, and process has issued thereon, which is duly
averred in this declaration, but there is no averment of service
of such process or of any proceedings thereon. A demurrer
is filed to this declaration. Several grounds have been urged
in support of the demurrer, which need n«t now be con-
sidered ; e,g., that the statute gave a right of action for injury
sustained " by the commission of any crime or offence" does
not include a mere neglect df duty or omission to comply
with the requirements of law ; that such a statute does not ap-
r ply to a plaintiff to whom the defendant owed no duty out-
side of statutory requirements; that the terms "crime and
offence" do not apply to a violation of the act in question,
upon the ground that it is not a public statute, but a local
police regulation ; that the injury for which an action can be
sustained must be the immediate and not the consequential
result of the omission charged. Assuming all these points m
favor of the plaintiff, the fundamental question remains,



Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 53 of 73)