State v. Montgomery

• Citation: 94 Me. 192,47 A. 165
• Parties: STATE v. MONTGOMERY.
• Decision Date: 28 May 1900
• Court: Supreme Judicial Court of Maine (US)

47 A. 165

94 Me. 192

STATE

v. MONTGOMERY.

Supreme Judicial Court of Maine.

May 28, 1900.

(Official.)

Exceptions from supreme Judicial court, Franklin county.

William C. Montgomery was convicted of peddling without a license, and brings exceptions. Exceptions sustained.

Argued before WISWELL, C. J., and EMERY, HASKELL, STROUT, SAVAGE, and FOGLER, JJ.

Elmer E. Richards, Co. Atty., for the State.

Clarence Hale, Arthur F. Belcher, and Joseph C. Holman, for defendant.

SAVAGE, J. This case has been once before this court upon a report of facts agreed (92 Me. 433, 43 Atl. 13), with the result that the case was ordered to "stand for trial." At the trial at nisi prius the respondent was found guilty of going about from place to place in Farmington, then and there carrying for sale and exposing for sale certain picture frames, without being licensed therefor, and in violation of the Laws of 1889, c. 298, as amended by the Laws of 1893, cc. 282, 306. He now brings the case forward upon exceptions to certain instructions which were given, and certain which were refused to be given, to the jury by the presiding justice. We do not deem it necessary to consider the exceptions seriatim. The several requested instructions present the grounds upon which the respondent bases his claim that the statute in question is unconstitutional; but we shall, we think, be able to dispose of the case by a consideration of the instruction which was actually given to the jury, and which was "that the defendant was amenable to the statute of this state (the act of 1889, c. 298) relating to hawkers and peddlers; that he was not protected or justified by any law of this state, or by the constitution of the state, or by the constitution of the United States, or by act of congress, in performing these acts without a license granted to him under the provisions of our own statute." This instruction raises in the broadest manner the constitutionality of the hawkers' and peddlers' act. The facts relied upon by the state to support the prosecution are the same which are stated in the opinion in 92 Me. 433, 43 Atl. 13. We shall not review that opinion, nor do we intend to change it. So far as concerns any point that was decided then, it stands.

Much of the argument of the learned counsel for the respondent relating to the interstate commerce clause of the United States constitution, we think, is inapplicable to the facts presented. In exceptions and in argument they overlook the fact, as we deem it to be, that the picture frames in question at the time of the alleged offense had ceased in any way to be the subject of interstate commerce. They had been shipped to this state unsold. They had been taken from the carrier. The packages had been opened, and the respondent was carrying them about from place to place in this state, offering them for sale. No person had agreed to buy them, or any of them, before they were shipped here. No person here was under any contract with regard to them. Another agent of the respondent's employer had secured orders for pictures, and, "on securing an order," left a contract with the party giving the order, in which it was stated that "all portraits are delivered in appropriate frames," which patrons may buy, or not, as they desire. It does not even appear that the picture frames were in any way an inducement to the giving of the order. It rather appears that the statement in the "contract" was made as an inducement to the patrons to buy at some future time picture frames "at greatly reduced prices." Quod est demonstrandum.

"These considerations, we think, take this case out of the protection of the interstate commerce provision of the constitution, giving to congress the power to regulate "commerce among the states." Nor does the fact that the hawkers' and peddlers' act may, under some conditions, be void as to goods which are at the time the subject of interstate commerce, necessarily render it invalid as to all goods under all conditions.

A legislative act may be entirely valid as to some classes of cases, and clearly void as to others. Cooley, Const. Lim. (6th Ed.) p. 213. Judge Cooley says: "If there are any exceptions to this rule, they must be of cases only where it is evident, from a contemplation of the statute and of the purpose to be accomplished by it, that it would not have been passed at all, except as an entirety, and that the general purpose of the legislature will be defeated if it shall be held valid as to some cases and void as to others." Tiernan v. Rinker, 102 U. S. 123, 26 L. Ed. 103; Packet Co. v. Keokuk, 95 U. S. 80, 24 L. Ed. 377. This is undoubtedly sound doctrine. To illustrate: If it were held otherwise, our highway damage law would have been rendered entirely inoperative by the decision in Pearson v. Portland, 69 Me. 278, holding that a single provision in the statute which existed then was obnoxious to the clause in the fourteenth amendment declaring that no state shall deny to persons within its jurisdiction the equal protection of the laws. Such, too, would have been the effect upon our prohibitory liquor law by the decision in State v. Intoxicating Liquors, 85 Me. 304, 27 Atl. 178, holding, under the laws which then existed, that intoxicating liquors in the possession of a common carrier, and in transit from another state to this, were "commerce among the several states," and so within the protection of the interstate commerce provision of the constitution of the United States. But no one would claim, we think, that either of these statutes was to be regarded as wholly unconstitutional because a single provision was held unconstitutional. Presser v. People, 116 U. S. 252, 6 Sup. Ct. 580, 29 L. Ed. 615; Rothermel v. Meyerle, 136 Pa. St. 250, 20 Atl. 583, 9 L. R. A. 366.

Accordingly we hold that, whatever may be the effect of the statute as co goods which are properly subject to Interstate commerce protection, it is clearly constitutional, in this respect, as to goods which have completed their transit, have ceased to be objects of interstate commerce, and have become a portion of the mass of the property in the state, as in this case. When goods are sent from one state to another for sale, or in consequence of a sale, they become part of its geueral property, and amenable to its laws, provided that no discrimination be made against them as goods from another state. Robbins v. Taxing Dist, 120 U. S. 489, 7 Sup. Ct. 592, 30 L. Ed. 694; Brown v. Houston, 114 U. S. 622, 5 Sup. Ct. 1091, 29 L. Ed. 257; Machine Co. v. Gage, 100 U. S. 676, 25 L. Ed. 754. When a package is broken up for use or for retail by the importer, it ceases to be under interstate commerce protection, and becomes subject to the laws of the state, and its sale may be regulated by the state like any other property. Cooley, Const. Lim. (6th Ed.) p. 717; License Cases, 5 How. 589, 12 L. Ed. 256; Brown v. Maryland, 12 Wheat. 419, 6 L. Ed. 678; Cook v. Pennsylvania, 97 U. S. 566, 24 L. Ed. 1015.

A statute of a state by which peddlers of goods, going from place to place within the state to sell them, are required, under a penalty, to take out and pay for licenses, and which makes no discrimination between residents of the state and those of other states, is not, as to peddlers of goods previously sent to them by manufacturers in other states, repugnant to the grant by the constitution to congress of the power to regulate commerce among the several states. Emert v. Missouri, 156 U. S. 296, 15 Sup. Ct. 367, 39 L. Ed. 430.

But the respondent goes further, and raises a question not raised at the former hearing of this case, and not then considered or decided. He says that the provision in section 2 of the hawkers' and peddlers' act which provides that a license shall be granted "to any citizen of the United States, * * *" but "to no other person," is obnoxious to the fourteenth amendment to the constitution of the United States, by which it is declared that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." It is clear that by the provisions of the statute only citizens of the United States can be licensed to peddle. An alien cannot be licensed. A discrimination is made between citizens and aliens. Does this discrimination violate the constitutional provision which we have cited? This presents a federal question, and properly we seek an answer first in the decisions of the United States courts.

If this were a question of discrimination against "citizens of the United States," the solution would be easy. The privileges and immunities guarantied by the clause in the constitution which declares that the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states are said in Paul v. Virginia, 8 Wall. 168, 19 L. Ed. 357, to be the relief "from the disabilities of alienage in other states. It [the clause in question] inhibits discriminating legislation against them by other states; it gives them the right of ingress into other states, and egress from them; it insures to them in other states the same freedom possessed by the citizens of those states in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other states the equal protection of their laws."

It is not in the power of one state, when establishing regulations for the conduct of private business of a particular kind, to give to its citizens essential privileges connected with that business which it denies to citizens of other states. See Blake v. McClung, 172 U. S. 239, 19 Sup. Ct. 165, 43 L. Ed. 432.

The use of the phrase "privileges and immunities," in the constitutional provision referred to, plainly and unmistakably...