State v. Mitchell

• Decision Date: 09 December 1902
• Parties: STATE v. MITCHELL.
• Court: Maine Supreme Court

53 A. 887

97 Me. 66

STATE

v. MITCHELL.

Supreme Judicial Court of Maine.

Dec. 9, 1902.

(Official.)

Appeal from municipal court of Skowhegan.

Charles W. Mitchell was convicted of peddling without a license, and appeals. Reversed.

The defendant having been convicted on the following complaint, to which he demurred, appealed to the court sitting at nisi prins:

"State of Maine. "Somerset—ss.:

"To the Judge of our Municipal Court of Skowhegan, in the County of Somerset, in Constant Session for the Cognizance of Criminal Actions:

"Hiram P. Thing, of Skowhegan, in the county of Somerset and state of Maine, in behalf of said state on oath complains that Charles W. Mitchell, late of Skowhegan, in said county of Somerset, at Skowhegan aforesaid, in the county of Somerset aforesaid, on the sixteenth day of October, in the year of our Lord nineteen hundred and one, not having procured a license therefor, as provided by law and chapter two hundred seventy-seven of the Public Laws of A. D. 1901 of the state of Maine, and not then and there being a commercial agent selling goods by sample to dealers only, did then and there go from place to place in the town of Skowhegan, in said county of Somerset, exposing for sale and selling goods and chattels other than fruit grown in the United States, fruit trees, provisions, live animals, brooms, pianos, organs, wagons, sleighs, agricultural implements, fuel, newspapers, agricultural products of the United States, the products of his own labor or the labor of his family, any map made and copyrighted in his name, any patent of his own invention or in which he has become interested by being a member of any firm or stockholder in any corporation which has purchased the patent, to wit, selling patent medicine, against the peace of the state, and contrary to the statute in such case made and provided.

"Wherefore the said Hiram P. Thing prays that the said Charles W. Mitchell may be apprehended, and held to answer to this complaint, and further dealt with relative to the same as law and justice may require,

"Dated at Skowhegan, in said county of Somerset, this sixteenth day of October, in the year of our Lord one thousand nine hundred and one. H. P. Thing."

The grounds of demurrer set forth in the court below were as follows:

"(1) In that the complaint in said cause charges no offense.

"(2) That the offense purporting to have been committed by said defendant in said complaint is not set forth with sufficient certainty.

"(3) That said respondent could have done all that said complaint alleges against him, and yet have been guilty of no offense, nor violated any statute.

"(4) That chapter 277 of the Public Laws A. D. 1901 for the state of Maine enacts, among other things, in section 6 thereof: 'Any soldier or sailor disabled in the military or naval service of the United States, or by sickness or disability contracted therein, or since his discharge from service, and any person who is blind shall be exempt from paying the license fees required by this chapter,' and said complaint does not negative these exceptions contained in said statute and cited above, which it should.

"(5) That said chapter 277, among other things, enacts in section 4 thereof: 'But any resident of a town having a place of business therein owning and paying taxes to the amount of twenty-five dollars on his stock in trade, can peddle his goods in his own town without paying any license fee therefor,' and said complaint does not negative this exception contained in said statute, which it should do; said complaint not showing but that said respondent at the time of said alleged offense was a resident of said Skowhegan, having stock of goods therein, and owning and paying taxes to the amount of twenty-five dollars on his said stock in trade, and hence not liable to the tax imposed by said chapter 277.

"(6) That said chapter provides, among other things, said sections 4 and 6 as above referred to and set out, and said complaint does not negative the exceptions therein set forth, which 'it should; said complaint not showing but that said respondent comes within the exceptions therein, and is a soldier or sailor disabled in the military or naval service of the United States, or by sickness or by disability contracted therein, or since his discharge from service, or is blind, or having said stock of goods and paying taxes to the amount of $25, being a resident of said Skowhegan at time of said alleged offense, and hence within the exceptions as contained in said sections Nos. 4 and 6.

"(7) Because the statute upon which said complaint is founded is in conflict with the constitution of the state of Maine.

"(8) Because said statute is in conflict with the constitution and laws of the United States.

"(9) Because said Public Laws of the state of Maine are not uniform, and they discriminate in favor of one class of individuals against another, and are not valid.

"(10) Because said Public Laws exempt a certain class of persons from the payment of the fees provided by law, which is unconstitutional.

"(11) Because said state of Maine has no right to impose a license or tax as provided by said chapter 277, Laws 1901.

"And for other and sufficient causes of demurrer said complaint is not sufficient in law, and this he is ready to verify."

The defendant's demurrer was overruled in the court below, and he alleged exceptions.

The case is stated in the opinion.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, PEABODY, and SPEAR, J.I.

J. S. Williams, for appellant0.

Geo. W. Gower, Co. Atty., for the State.

EMERY, J. The statute (chapter 277, Pub. Laws 1901) entitled "An act relating to hawkers and peddlers" provides in section 1 that no person shall go about from town to town, or from place to place in the same town, exposing for sale or selling certain enumerated merchandise, until he shall have procured a license so to do as thereinafter provided. Section 2 provides that the secretary of state shall grant such license to any person who files in his office a specified certificate of good moral character, but not to any other person. Sections 3 and 4 provide that the applicant for such license shall pay to the secretary of state a fee of $1, and to the treasurer of each town mentioned in his license a further sum varying from $3 to $20, according to the population of the town. The concluding clause of section 4 is as follows: "But any resident of a town having a place of business therein, owning and paying taxes to the amount of twenty-five dollars on his stock in trade, can peddle said goods in his own town without paying any license fee whatever."

The defendant was convicted in the Skowhegan municipal court of a violation of this statute, and appealed to this court, where, by consent, he filed a demurrer to the complaint, which demurrer was overruled, and the defendant excepted. Among other causes, the defendant sets up as cause for demurrer that by reason of the exemption from its operation of certain classes of persons specified in the concluding clause of section 4, above quoted, the statute denies him the "equal protection of the laws" specifically guarantied to him by the last clause of the first section of the 14th amendment to the United States constitution, as well as denying him the equal right to acquire property and pursue happiness guarantied to him by the first section of the Maine bill of rights.

The scope of the clause cited from the 14th amendment, that "no state shall deny any person within its jurisdiction the equal protection of the laws," has often been considered by the federal and state courts, and more or less conflict of opinion has been developed. Some doctrines, however, have become fairly well established. Though the words of the clause are prohibitory, they contain a necessary implication of a positive right,—the right of every person to an equality before every law, the right to be free from any discriminations as to legal rights or duties a state may seek to make between him and other persons. Strauder v. State of West Virginia, 100 U. S. 303, 25 L. Ed. 664. In effect, the clause adds a federal sanction to the equality of right embedded in the Maine bill of rights. It enables the federal courts to enforce the right, even when the state courts shall refuse to do so.

No one now questions that these constitutional provisions prevent a state making discrimination as to their legal rights and duties between persons on account of their nativity, their ancestry, their race, their creed, their previous condition, their color of skin or eyes or hair, their height, weight, physical or mental strength, their wealth or poverty, or other personal characteristics or attributes, or the amount of business they do. It must be conceded, on the other hand, that these constitutional provisions do not prevent a state diversifying its legislation or other action to meet diversities in situations and conditions within its borders. There is no inhibition against a state making different regulations for different localities, for different kinds of business and occupations, for different rales and modes of taxation upon different kinds of occupations, and generally for different matters affecting differently the welfare of the people. Such different regulations of different matters are not discriminations between persons, but only between things or situations. They make no discriminations for or against any one as an individual or as one of a class of individuals, but only for or against his locality, his business or occupation, the nature of his property, etc. He can avoid the discrimination by varying his location, business, property, etc. See Leavitt v. Railway Co., 60 Me. 153, 37 Atl. 880, 38 L. R. A. 152, for a full and clear exposition of this doctrine.

But even these differentiations or classifications must be reasonable, and based upon real differences in the situation, condition, or...