
    *The City of Cincinnati v. Levi Buckingham.
    An ordinance of the city council, collecting twenty-five cents from the persons occupying stands in the market place, is lawful, and may be enforced by fine and judgment before the mayor.
    This is a certiorari to the common pleas of the county of Hamilton.
    By the charter of Cincinnati, the city council are invested with power, among other things, “to erect, establish, and regulate the markets and market places of said city for the sale of provisions, vegetables, and other articles necessary for the sustenance, comfort, and convenience of the inhabitants.” 32 Ohio L. 248.
    In November, 1839, the council passed an ordinance : “ That no person should be licensed or permitted to occupy any place in any of the market places in said city, or in the streets contiguous thereto, with a wagon or other vehicle, during market hours, but upon making payment, when demanded by any person authorized to receive the same, of the sum of twenty-five cents for every market day’s occupation.” . . . “If any person, occupying any of the spaces or streets ■ aforesaid, shall refuse to pay the sum chargeable to him or her as aforesaid, for such occupation, when demanded by the city collectors, ... he shall forfeit and pay the sum of five dollars, with costs of suit, to be recovered before’the mayor.” Further provision is made, that process is returnable, and judgment rendered forthwith.
    The defendant being convicted and fined by the mayor, for the infraction of this ordinance, carried the judgment to the common pleas, where it was reversed.
    This certiorari is now brought to review the opinion of the common pleas.
    Wright and Walker, for the plaintiff in certiorari:-
    
    The court of common pleas erred:
    1. In deciding that the mayor had pot jurisdiction.
    *2. In deciding that the ordinance was invalid.
    3. In rendering judgment in favor of the defendant.
    But we propose to argue only a single point, namely, the validity of the ordinance; for if the ordinance be valid, the proceedings under it must bo sustained. To determine upon the validity of the ordinance, we must refer to the city charter; and the single question is, whether the city charter confers power on the city council to pass that ordinance. Both the original ordinance and the amendment are made part of the record ; but the proceedings in question took place under the amendment. This provides, in substance, that no person shall be “ licensed or permitted” to occupy any of the market spaces with a wagon but upon paying twenty-five cents for each day’s occupation, when properly demanded, Upon refusal to pay, such person shall “forfeit” the sum of five dollars, to be recovered before the mayor, who may issue either a summons or capias, returnable forthwith, and proceed at once to trial and judgment. After judgment he may issue a fieri facias, which the marshal may levy, and either sell forthwith upon proclamation at the market, or pursue the course provided for constables’ sales. Such, briefly, are the provisions which have produced so much excitement. And the question is, are they’ within the power of the city council ?
    Section 9 of the city charter confers on the council “ power to erect, establish, and regulate the markets and market spaces.” Do those words include the power in question? It so happens that the two words, establish and regulate, were both used in the federal constitution, between which and the city charter, with respect to the rule of interpretation, the analogy is complete. Both confer limited legislative powers, and are to be construed in the same way. To begin, then, with the word establish. Congress has power “ to establish post-offices and post-roadsand from this single provision has emanated every law relating to the subject matter. Not only has a distinct department of the government been created, but an immense variety of regulations, penal and 359] otherwise, have been enacted. It will at *once occur to the court, that a much less enlarged signification of the same word, in the city charter, will cover every provision in the ordinance.
    And the same is true of the word regulate. Congress has power “ to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” And the Supreme Court of the United States, in cases too celebrated to need to be cited here, has repeatedly held that this clause confers on Congress complete and exclusive power to make all the rules required for the government of these three descriptions of commerce, as well penal as otherwise. But the illustration most in point is derived from the legislation of Congress over the Indian tribes. All this emanates solely from this single clause, there being no other reference to the Indians in the constitution. Again, therefore, we say, that a much less enlarged signification of the same word in the city charter will cover overy provision in the ordinance.
    But the clause of the charter above quoted is not the only one bearing upon the question. Section 16 of the charter confers full power respecting licenses and taxes; and section 8 provides for all the means necessary to enforce obedience to all the ordinances which the council may lawfully pass. On the question, therel'oro, of power to pass the ordinance in question, and to carry it into effect, there can not be a reasonable doubt.' And as the proceedings before the mayor are in strict conformity with the provisions of the ordinance, we might here rest the case.
    But on the trial below, much was said about the tyrannical haste of these proceedings. That demand, refusal, mesne process, judgment, execution, levy, and sale should all take place in one day, was deemed an outrage upon all the principles and usages of law. The reply is, that without this very dispatch, the proceedings would be unavailing in nine times out of ten, because all the defendants reside out of the mayor’s jurisdiction. Besides, in all criminal proceedings there is more of haste and dispatch than in civil proceedings. Often when courts adjudge a fine, as in con-tempts for example, they order *commitment until the fine [260 is paid, and they give no longer delay before judgment than is necessary to prepare specifications.
    "We might draw an argument from the municipal regulations of the eastern cities, which are quite as arbitrary and quite as summary as those here complained of. But we deem further argu'ment unnecessary.
    E. Woodrurr, on the same side,
    cited these authorities: Josiah Nightingale, petitioner, etc., 11 Pick. 168 ; Ang. & Ames on Corp. 199, 203; Mosely v. Pierson, 4 D. & E. 104; 1 Esp. 372; 1 Bl. Com. 274; 2 Bl. Com. 449; 4 Bl. Com. 275; Vanderbilt v. Adams, 7 Cow. 349 ; Henry Vandine, petitioner, etc., 6 Pick. 187 ; Village of Buffalo v. Webster, 10 Wend. 99; Gibbons v. Ogden, 9 Wheat. 178; 2 Com. Dig. 284, 290; Stuyvesant v. Mayor of New York, 7 Cow. 588; 8 Johns. 418.
    There was no argument on the other side; but a pamphlet was submitted to the court, published by order of a committee appointed to bring' before the court of common pleas the legality of this ordinance, and containing the opinion of the president judge of that court, delivered at great length. From this opinion it appears that T. Morris, J. W. Piatt, and L. M. Gwynne argued the case in the court below, for the present defendant in certiorari, and cited these authorities: Commissioners of Clermont County v. Robb, Wright, 48; State v. Corporation of New Brunswick, Cox, 393; Overseers of Amenia v. Overseers of Stanford, 6 Johns. 93; Rex v. Burdett, 1 Ld. Raym. 149; Ang. & Ames on Corp. 184, 186; Head v. Prov. Ins. Co., 1 Pet. Cond. 376; Dartmouth College 
      v. Woodward, 4 Wheat. 518; Fowle v. Common Council of Alexandria, 3 Pet. 398; Beatty v. Knowler, 4 Pet. 152 ; Stetson v. Kempton, 13 Mass. 272; Hart v. City of Albany, 9 Wend. 571; Dunham v. Village of Rochester, 5 Cow. 462; Mayor of New York v. Scott, 1 Caine, 544; Hallet v. Novion, 14 Johns. 272; Bl. Com. App. 154.
   *Lane, C. J.

The powers of the city council were to establish and regulate markets.

A municipal market consists:

I. ' In a place ior the sale of provisions, and articles of daily consumption.

II. Convenient fixtures.-

III. A system of police regulations, fixing market hours, making provisions for lighting, watching, cleaning, detecting false weights and unwholesome food, and other arrangements calculated to facilitate the intercourse, and insure the honesty, of buyer and seller.

IT. Proper officers to preserve order and enforce obedience to rulers.

The nature of the business transacted in market requires the prompt and efficient action of the police authorities, in cases proper for their interposition. The “due regulation” of a market demands the expenditure of money; and the levying of tolls upon the sellers in market, for the purpose of meeting these expenses incurred mostly for their benefit, is practiced by all municipal corporations. In Cincinnati, the tolls of the stalls, in the market houses, seem to-be submitted to without objection ; but the open spaces, for the accommodation of the more transient frequenters of the market, equally demand the interposition of the city authorities to prepare, pave, and keep them clean, to arrange the stands, preserve order, and enforce rules; and the sellers may be called to contribute to these expenses, in proportion to the accommodation rendered to them, as justly as the occupants of the stalls. The sum exacted for this purpose by the ordinance is called by the defendant’s counsel a tax upon the sale of the commodities brought to market; it is rather the price demanded for accommodations provided to the frequenters of the market, by the city authorities. Although paid into the treasury, it is paid in support of the genera] expenses of the city, of which this is one of the most prominent.

If, then, there be nothing in the nature or object of the demand, *which lies beyond the ordinary powers of municipal cor- [262 porations, we next inquire whether the mode of enforcing it is objectionable. The remedy is complained of as oppressive and tyrannical, imposing fines, and urging executions with more severity and speed than is consonant with our habits, or even with the due ascertainment of facts. But the dealings of the market-house subsist but for the hour, and then property and person are withdrawn from the jurisdiction of the authorities. Hence the prompt and strong enforcement of market regulations becomes necessary, or the object is not obtained; and in all time, from the days of the court of pie poudre to the present, the disputes of the market have been settled on the spot.

Section 4 of the charter confers jurisdiction upon the mayor, for violating city ordinances. That it is sub nomine pcence, in the name of a fine, seems to us not objectionable. The amount, either of the price exacted, or of the penalty (or non-payment, is a matter within the discretion of the authorities; the one will become adjusted by the sense of justice and mutual interest; the other, if honestly designed to enforce obedience, by the adoption of ordinary means to produce this end, ought i.ot to be complained of by one who denies the authority to exact the burden; and both the tax and the means for enforcing its collection, will be kept within bounds by the superintending power of public opinion and the exercise of the right of suffrage.

We find, then, the exertion of no authority except such as is necessary to ihe due administration of city government, and the right of imposing it expressly conferred by the charter.

Judgment reversed.  