
    Sipe v. Murphy et al.
    
      Municipal Corporations — License to sell at auction, goods imported into the corporation for that purpose — Validity of ordinance.
    
    1. Under the authority given to cities hy section 1692 of the Revised Statutes, to regulate auctioneering, and to regulate, license or prohibit the sale at auction of goods, wares and merchandise imported into the corporation for the purpose of being sold at auction, city councils may, if no discrimination is made .against goods imported for that purpose and in favor of goods of the same class, lcind and quality already within the corporation, provide by ordinance, for licensing the sale at auction within the corporation of .such imported goods; and may, when necessary for the protection of the public health, safety, or morals, prohibit the sale at auction of goods imported into the corporation for the purpose of being so sold.
    2 .A city ordinance which provides that, it shall be unlawful for any person, by himself, or by any agent, within the corporate limits of such city, to sell or offer for sale at auction, any goods, wares or merchandise which have been imported into such city for the purpose of being sold or offered for sale at auction, unless such person shall pay or cause to be paid a license fee of twenty-five dollars for each day and part of day he may desire to sell and offer for sale such goods, wares or merchandise at auction, is an unreasonable exercise of the power granted to municipalities, as above stated, under section 1692 of the Revised Statutes, and is invalid.
    (Decided June 28, 1892.)
    On Habeas Corpus. Error to the Circuit Court of Franklin count}7.
    
      John F. Sipe, the plaintiff in error, was arrested on a •complaint charging that, at the city of Columbus, in the ■county of Franklin, and state of Ohio, on or about the 27th •day of January 1892, he unlawfully did sell and offer for sale at auction, certain goods and merchandise within the limits of said city, which goods and merchandise were imported in said city for the purpose of being sold at auction by him without having procured a license from the mayor •of said city so to do.
    The plaintiff in error made application to the court of ■common pleas for a writ of habeas corpus, stating in his petition that he was unlawfully imprisoned and restrained of his liberty by John E. Murphy, Chief of Police of the city •of Columbus, and praying that he might be discharged from, such unlawful imprisonment. The writ was issued, the plaintiff in error was brought before the court, and on the 8th day of February, 1892, the cause came on for hearing before the court of common pleas upon the following agreed statement of facts:
    “It is agreed that the relator, John F. Sipe, brought into the corporation 'of Columbus,.O., a stock of goods consisting of jewelry, for sale at auction, and neglected and refused to take out or pay for the license required by the city ordinance of the city of .Columbus, a copy of which ordinance is hereto attached, marked “Exhibit A.”
    “It is further agreed, that-the goods thus imported into the corporation for sale by auction were wholly without the corporate limits, and a portion without the state, but those without the state were not sold in original packages, but broken, intermingled and sold at retail.
    “Further, that the relator, John F. Sipe, is the owner of the goods, but not the auctioneer, but has in his employ two auctioneers, licensed by the state to follow that avocation.
    “ For the violation of said ordinance in selling said goods at auction without such license the relator, John F. Sipe was arrested, as shown by the records, and is now in custody of John E. Murphy, Chief of Police of Columbus, by virtue of a writ, a copy of which is attached to the application.”
    “Exhibit A.”
    
      “An Ordinance to regulate and license the sale at auction within the city of Columbus, of goods, wares and merchandise imported into said city for the purpose of being sold at auction.
    “Section 1. Be it ordained by the City Council of the city of Columbus, that from and after the passage and publication of this ordinance, it shall be unlawful for any person, persons, party or corporation, by himself, themselves or itself or by any agent within the corporate limits of the city of Columbus, to sell or offer for sale at auction, any goods, wares and merchandise, which have been imported into said city for the purpose of being sold or offered for sale at auction, unless such person, persons, party or corporation, shall first procure a license so to do, as hereinafter provided.
    “Section 2. The City Clerk of the city of Columbus, upon the application of any person, persons, party or corporation, to sell at auction any goods, wares and merchandise, imported into the corporation for the purpose of being sold at auction, is authorized upon the receipt of twenty-five dollars ($25) from the party making such application for each day and part of day such party may desire to sell and offer for sale such goods, wares or merchandise at auction, to give such party a receipt for such money and also to prepare and deliver to such party a license to authorize such party to make such sales for the time therein specified, which said party shall before commencing such sales present to the mayor of said'city whose duty it shall be to sign the same; provided that the city clerk shall be first satisfied that the applicant touching the goods, wares and merchandise proposed to be sold at auction, has complied with the requirements of the Statutes of this state regulating the listing of the same for taxation, and for the payment of the taxes thereon.
    “ Section 3. Any person, persons, party or corporation violating an}' of the provisions of section 1 of this ordinance, shall upon conviction thereof before the mayor for the first offense, be fined in the sum of twenty-five dollars and costs of prosecution, and for any repetition of the offense upon conviction thereof before the mayor, shall be fined in an}’’ sum not less than twenty-five dollars nor more than fifty dollars in the discretion of the mayor, and the costs of prosecution.
    “Section 4. This ordinance shall take effect and be in force from and after its passage and publication according to law.
    “Passed February-19, 1877.”
    The court of common pleas refused the prayer of the petitioner, dismissed the petition and writ, and rendered judgment against the petitioner for costs.
    The circuit court, on petition in error, affirmed the judgment and proceedings of the court of common pleas, and this proceeding in error is prosecuted to reverse both judgments.
    - Ong & Hamilton, for plaintiff in error.
    The ordinance is void, because of the discriminating features therein against goods that are non-resident of the municipality, in favor of goods resident of the municipality. It is unequal, oppressive, unjust and not uniform, and is in restraint of trade.
    The ordinance in question requires of the owner of goods, whether he resides within the municipality of Columbus or without, the payment of twenty-five dollars per day for the privilege of selling goods at auction imported into the corporation for that purpose, hut if imported to be sold at retail or wholesale, or if the goods are already within the corporate limits, they may be sold in any manner therein at auction or otherwise without the payment of twenty-five dollars per day or any other sum.
    We do not think that the legislature, by the grant of power made under section 1692, paragraph 9 of the Revised Statutes, intended any such legislation predicated thereon and if it did, then such grant is wholly void and unconstitutional, inconsistent, unequal, oppressive, and in restraint of trade; and if it be held valid, both the grant and ordinance predicated upon it, then eve^ municipality within the state may erect such a wall around the corporation as to amount to absolute prohibition for the sale of any goods brought from any portion of the state for the purpose of being sold at auction, thereby creating jealousies between the different municipalities and absolutely annulling, thwarting and rendering nugatory, the statute authorizing and legalizing the vending of goods at auction or public outcry anywhere within the state.
    In support of this proposition we direct the Court’s attention specially to 52 Cal. 606; 58 la., 184; 78 Ky., 542; 80 Gratt., 471.
    We have carefully examined every decision by this court that counsel have or may refer to, and especially the 45 Ohio St., each and every decision made by this court upon all ordinances held valid; they have all fallen within the police regulation, such as affected health, morals, the use of the public streets and thoroughfares, alleys and public grounds of the municipality. We know of no case, either in Ohio or elsewhere, that permits a municipalhy to thus openly and flagrantly discriminate against goods of the same class, kind and quantity, solely upon their location, the place of their production, whether it be in favor of a municipality, of a county, or of a state.
    
      Frank, T. Clarke, Emmett Tompkins, Paul Jones and Flor-isel Smith, for defendants in error.
    Is the ordinance discriminating, unequal, oppressive, unjust, not uniform, in restraint of trade and therefore void?
    Section 1692, paragraph 9, gives the city the power to do four things; (1) to regulate auctioneering; (2) to regulate, (3) license, or (4) prohibit the sale at auction of goods, wares and merchandise, imported into the corporation for the purpose of being sold at auction.
    The record discloses that the city lias exercised the third of these powers and it does not disclose whether or not the city has exercised the first power thereof. This court will not presume, in the absence of anything in the record showing it, that the city has not exercised the power conferred by the first provision of this paragraph. Counsel for the relator wishes the court to assume that no provision whatever has been made concerning the regulation or auc-tioneering of goods, that were brought into the city for some purpose other than to be sold at auction, and after inducing the court to make this assumption, he seeks to induce the court to hold that such exercise and non-exercise' of power as to two different kinds of goods make the present ordinance void. But we take it that the exercise of power conferred bjr any one of the provisions of this paragraph would not be void simply because the city in its discretion has not seen fit to exercise, or has not deemed that the public interests require the exercise of the other powers conferred by the other provisions of the paragraph. There is nothing in the statute that requires the exercise of all of these powers in one and the same ordinance. And it seems to us that counsel for the relator has no right to assume, outside of the record, that the city has made the discrimination that he alleges to exist.
    If the city has exercised the power conferred to “regulate auctioneering” and thereby made provision for the auction of goods that were brought into the city limits for a purpose other than to be sold at auction, then the discrimination of which counsel complains does not exist. But that discrimination can not be found in the ordinance in question.
    The ordinance will be found in restraint of trade only upon the court’s finding that the fee demanded is unreasonable. We think that the record makes no such disclosure.
   DiCKMAN J.

The plaintiff in error, John E. Sipe, was arrested upon the charge of having unlawfully sold and offered for sale at auction certain goods and merchandise, -within the corporate limits of the city of Columbus, which had been imported into that city for the purpose of being sold at auction by him, without having first procured the required license therefor. The. arrest was made for an alleged violation of the ordinance passed February 19,1877, “To regulate and license the sale at auction within the city of Columbus, of goods, wares and merchandise imported into said city for the purpose of being sold at auction.

It is contended that the municipality had no authority to pass the ordinance, and that the plaintifF in error was therefore unlawfully restrained of his liberty. It.is claimed, however, in behalf of the city of. Columbus and John E. Murphy, defendants in error, that the ordinance in question was properly passed under the following provisions of section 1692 of the Revised Statues: “In addition to the powers specifically granted in this title, and subject to the exceptions and limitations in other parts of it, cities and villages shall have the general powers enumerated in this section, and the council may provide by ordinance for the exercise and enforcement of the same. * * * 9. To regulate auctioneering, and to regulate, license or prohibit the sale at auction of goods, wares and merchandise imported into the corporation for the purpose of being sold at auction.”

The powers thus vested in cities in reference to auctions, though general, are not without limitation. It is not to be presumed from the language of the statute, that it was the design of the legislature to authorize the passage of ordinances that would be unjust, or oppressive, or unfair and partial, or in restraint of trade, or in contravention of public policy, or containing special and unwarranted discrimi-nations against property brought into the corporation from other parts of the same state to be sold at auction, or ordinances containing such discriminations against property brought into the corporation from another state for the same purpose, and thus in conflict with the powers of congress to regulate commerce among the several states. And while ordinances subject to such infirmities cannot be deemed to'be authorized by the statute, obviously it cannot be held that the municipal body has such authority by vir-tu'e of the general incidental power of municipal corporations to enact appropriate by-laws or ordinances.

Under the authority given by the statute, “to regulate auctioneering,” city councils, in view of promoting the order, comfort and convenience of the inhabitants, may pass ordinances regulating sales at auction upon the streets, alleys, sidewalks, and public grounds of the city, and may subject the occupation of auctioneering to such police regulations as seem essential to the public convenience and protection. By the same authority, councils may, upon principles of equality- — without discriminating against the goods imported — license the sale at auction of such goods imported into the corporation for the purpose of being thus sold, and when the public health, or the public safety, or the morals of the citizens of the municipality are endangered, may prohibit the sale at auction of goods imported into the corporation for such purpose. But, we do not find the reasonable intendment of the statute to be, to empower councils to arbitrarily prohibit, either by words of prohibition or by heavy license fee, the sale at public auction of goods imported into the city for the purpose of being sold at auction, notwithstanding such goods may be of a harmless nature,and even useful and beneficial to the community.

The ordinance under consideration provides in sec. 1 that, “it shall be unlawful for any person, persons, party or corporation, by himself, themselves, or itself, or by any agent, within the corporate limits of the city of Columbus, to sell or offer for sale at auction, any goods, wares or merchandise which have been imported into said city for the purpose of being sold or offered for sale at auction, unless such person, persons, party or corporation shall first procure a license so to do, as hereinafter provided.” Such license can be procured only upon receipt from the party making application, of twenty-five dollars for each day and part of day such party may desire so to sell and offer for sale such goods — the applicant having first complied with the requirements of the statutes of the state, regulating the listing of the goods for taxation, and for the payment of the taxes thereon. For violating any of the provisions of the ordinance, the offender, for the first offense, is fined in the sum of twenty-five dollars and costs of prosecution; and for any repetition of the offense, a fine is imposed of not less than twenty-five nor more than fifty dollars, in the discretion of the mhyor, with the costs of prosecution.

In the case at bar, the goods imported into the corporation for sale by auction were wholly without the corporate limits, and a portion were without the state, but those from beyond the borders of the state were not sold in original but broken packages, intermingled and at retail. No foreign goods were sold while remaining in .the packages in which they were imported. And as the ordinance does not impose a heavier burden upon goods brought from another state than upon goods brought into the city from other places within this state; as it does not in any way discriminate between merchandise imported from other states and merchandise imported from any other part of the state of Ohio outside of the city of Columbus, it is therefore argued, that the ordinance under which the plaintiff in error was arrested, was not in violation of the constitutional provision vesting in congress alone the power to regulate commerce among the several states. Having reached the conclusion that the ordinance is invalid on other grounds, we do not deem it necessary to examine that constitutional question. Though a constitutional question may be legitimately presented by the record, yet if the record also presents some other and satisfactory ground upon which the court may rest its judgment, that course will be adopted, and the question of constitutional power will be left for consideration until a case arises which cannot be disposed of without considering it, and when consequently a decision upon such question will be unavoidable. Cooley Const. Tim. 196, 6 Ed.

It will be observed, that the object of the ordinance in question is not to exact a license fee from the auctioneer because he is not an actual resident of the city, or has not paid for a city license. The license fee made payable by the ordinance is incident more to the goods than to the auctioneer or owner. It is required because the goods are brought from outside the city for the purpose of being sold or offered for sale therein at auction, and not where they are already in the city before it is purposed to sell them therein at auction; and the situs of the goods at the time of first conceiving the design of selling them at auction, is made the criterion for exacting a license fee which is, in effect, a tax upon the goods themselves.

The owner, whether residing in the city of Columbus or not, must pay twenty-five dollars per day for the privilege of there selling his goods at auction, if imported into the corporation for that purpose. But, if the goods be imported to be sold at retail or wholesale in the ordinary course of trade, or are already within the corporate limits when the owner forms the purpose of there selling them at auction or in any other manner, he may so sell them, without the payment of the license fee of twenty-five dollars per day.

The license fee thus exacted is in addition to the duties to which all property and effects offered for sale and struck off at public auction are subject under section 4226, of the Revised Statutes. If the articles imported into the corporation for the purpose of sale at auction, do not exceed in value the sum of twenty-five dollars, the same license-fee is required, and the property is thereby virtually confiscated. The owner, in such case, is denied the right of selling at auction, unless such right is exercised at the cost of practically sacrificing his goods. And in this connection it may be noted, that in addition to the duties to which articles sold at auction are subject by section 4226, auctioneers, in cities of the first grade of the first class, whose sales amount to less than seventy-five thousand dollars -per annum, are required to pay a license of only twenty-five dollars per annum. Revised Statutes, section 2672 (37).

Upon an examination of the ordinance under consideration, we are led to the conclusion, that its passage was not a reasonable exercise of the power to legislate on the subject of auctions, as conferred by section 1692, of the Revised Statutes.

The effect of the ordinance is largely to prohibit, under the name of a license, the sale at auction of goods brought into the corporation for that purpose, which enter into the daily use and consumption, and which would not be excluded by any police regulation as being 'detrimental to the public health, comfort and convenience.

The ordinance is not impartial, and unjustly discriminates by the imposition of the license tax, between goods, wares and merchandise in the city, and such as may be imported from other cities or places within the borders of the state, for the purpose of sale at auction.

The ordinance is in restraint of trade. It checks the freedom of commercial intercourse, in treating unequally goods of the same class, kind and quality, by, in effect, levying a heavy tribute on the goods, as a condition on which the owner can be allowed to sell the same at auction, when imported into the corporation for that purpose. It places an unwarranted impediment in the way of the buyer and seller in acquiring and disposing of property. By a policy of exclusion, it tends to the creation of monopoly, by protecting local tradesmen and merchants against outside competition.

The ordinance is opposed to the public policy of the state. It is very plain that the power vested in Congress by the constitution to “regulate commerce among the several states,” rests upon a most obvious and enlightened public policy. A very material object of this power is the relief of the states which import and export through other states, from the levy of improper contributions on them by the latter. If each state were at liberty to regulate the trade between state and state, it is easy to' foresee that ways would be found out to load the articles of import and export, during their passage through the jurisdiction, with duties, which should fall on the makers of the latter, and the consumers of the former. Story Const., § 1066; Federalist, No. 42; Brown v. State of Maryland, 12 Wheat. 448, 449; Gibbons v. Ogden, 9 Wheat. 199 to 204.

The same wise policy that dictated such a power to regulate the commercial intercourse of the states with each other, would suggest and give force to the policy of prohibiting cities and towns within the same state, from imposing illiberal and unjust restraints upon their trade and commerce with each other.

In the case of Ex parte Frank, 52 California, 606, the petitioner having been convicted of a misdemeanor for the violation of what was known as the “Sample-seller’s Ordinance” of the city and county-of San Francisco, and being restrained of his liberty upon process issued upon the judgment of conviction, he was brought before the court on a writ of habeas corpus, and claimed that he was entitled' to be discharged from custody, on the ground that the ordinance was unconstitutional and void. The ordinance was passed under a general power conferred by the charter of the city, which exacted a license for selling goods, and fixed one rate-of license for selling goods which were within the corporate limits, or in transitu to the city, and another and much larger license for selling goods which were not in the city, or in transitu to it.

The court in holding the ordinance to be inoperative and void said: “It is flagrantly unjust, oppressive, unequal, and partial. It discriminates between merchants in the same place, dealing in the same kinds of merchandise, for no better reason than that one deals in goods either actually in the corporate limits, or in transitu under a bill of lading, while the other deals in goods outside the corporate limits, and not in transitu under a bill of lading. If this kind of discrimination be legitimate and valid, there is no reason wrhy a merchant having his goods in a warehouse on a particular street might not be required to pay a license fee of ten thousand dollars, while another merchant doing the same kind of business, in the same city, and with his goods stored in another street, would be required to pay only ten dollars. It also contravenes the public policy of the state, in that it obstructs commercial intercourse between the principal seaport city of the state and the interior; the policy being to foster and encourage commercial intercourse and a free interchange of commodities between the several sections. It is in restraint of trade, in that it exacts a heavy tribute from the owner of goods outside the corporate limits and not in transitu, as a condition on which be will be allowed to offer them for sale in the principal city and seaport of the state.”

The discrimination in the above cited case was against goods which were not within the corporate limits or in transitu to the city at the time they were sold, while in the case at bar, the ordinance under consideration discriminates against goods that are outside the city when the purpose originates to sell them within the corporate limits. The discrimination in the two cases differs but slightly in the alleged objectionable features.

Sections 4222 to 4238 inclusive, ®f the Revised Statutes, among other things, provide for the issuing of a state license ' to auctioneers, and for the payment of pro rata duties on all property and effects exposed to'sale by public auction. In our view there is no inconsistency between these provisions and section 1692 of the Revised Statutes. But with the implied limitations in that section upon municipal legislation, we are not prepared to affirm the validity of the ordinance, for the alleged violation of which, the plaintiff in error was arrested. The judgments of the courts below must therefore be reversed, and the plaintiff in error discharged from custody.

Judgment accordingly.  