(dissenting). I do not care to go into any extended argument on a matter in which I am unable to agree with my brethren, and shall, as briefly as I can, indicate my own view on the main question involved.
Until the recent ordinance, I am very sure it was always supposed that an out of doors market is chiefly valuable for the facilities it furnishes to producers to come together at one common resort, to sell their produce. In my judgment, this ordinance is not only oppressive, but practically a fraud, favoring special interests. According to the record, it appears that the market space in the middle of Cadillac square is built over for the greater .part of its extent, and that the only open space entirely within it is ridiculously small to accommodate the country wagons, being no larger than an average city lot. Until recently, as appeared in the Henkel Case, the city found no difficulty in giving space for wagons over a large extent of the square for some hours of the day; and we held such use of the street of which it consists was proper, and to be expected, about a market. In all parts of the world, and in cities much more considerable than Detroit, the temporary use of adjacent streets has always been deemed an essential part of the surroundings of a market. The law of markets, as exemplified in the common-law precedents, shows this very clearly. One of the prominent reasons now urged, although what part it plays in the record I do not understand, is the purpose of the city to allow another street railway to occupy the space which without it would be of entire convenience for market purposes. On what pretext it can be held that such a scheme can be allowed to crowd out the market is not at all clear to my mind. This ordinance *109further provides a rule of exclusion from Cadillac square, and other named streets, to a distance of 500 feet from the market space, for no conceivable reason of relieving the pressure round the market, as it covers a range entirely beyond reach of it, and appears to have no definite object, beyond isolating the market from traffic, and rendering it insignificant. That this ordinance entirely changes the character of this market is palpable. That the asserted necessity is one created by the city itself, and extremely well adapted to destroy the market, is equally plain. Nor do I think the location of the supplementary markets elsewhere is much more than color-able. The record certainly does not show that it is. It seems to me that our action, if we sustain this prosecution, allows to be done by evasion what is j'ust as effectual for mischief, as a bolder and more direct refusal to respect the legal and honest obligations of the city.
I think the ordinance should not be sustained, and that the conviction was wrong.