Ames v. People

• Decision Date: 05 December 1898
• Parties: AMES et al. v. PEOPLE.
• Court: Colorado Supreme Court

55 P. 725

25 Colo. 508

AMES et al. v. PEOPLE.

Supreme Court of Colorado

December 5, 1898

Error to Larimer county court.

W. H Ames and others were convicted of selling goods without a license, and bring error. Reversed.

Plaintiffs in error were prosecuted under an information for selling goods without license, which, in effect, charged that they not having a legal license or permit to peddle goods, did peddle, sell, vend, and retail wares and merchandise, not being produce, provisions, or mining tools, nor commodities manufactured by them within this state, the merchandise so sold being a Home Comfort steel range. The sections of the statute to which reference is made in the opinion will be found in Mills' Ann. St., as follows:

'Sec 2823. No auctioneer, peddler or other person or persons, company or corporation, shall be permitted to sell, vend, or retail, either at private sale or public auction, any goods, wares, or merchandise, without first having obtained a license for that purpose, as hereinafter provided: provided, however, that this section shall not extend to any person selling produce, provisions, or mining tools.'

'Sec. 2828. If any person or persons, company or corporation, shall, directly or indirectly, keep a store, or sell, vend, or retail any goods, wares or merchandise, without being first duly authorized by license or permit, as aforesaid, such person or persons, company or corporation, so offending, shall forfeit and pay any sum not exceeding one hundred dollars nor less than ten dollars.

'Sec. 2829. The preceding section shall not be construed to extend to the sale of goods, wares or merchandise by merchants who pay an annual tax upon merchandise, assessed according to the revenue laws of this state, nor to persons who sell commodities manufactured or raised by themselves in this state.'

The evidence established that plaintiffs in error were engaged in the business of selling and delivering, from a wagon, Home Comfort ranges, which were manufactured at St. Louis; that they had no license or permit to engage in that business; and that in making such sales they acted in the capacity of employés of the manufacturer of these ranges. They were convicted and fined, from which judgment they bring the case to this court for review on error.

Robinson & Love and Henry T. Sale, for plaintiffs in error.

Calvin E. Reed, Asst. Atty. Gen., for the People.

GABBERT J. (after stating the facts).

From the language employed in the information, it is evident that plaintiffs in error were prosecuted under the sections above quoted, and the propositions advanced by their counsel are that, if it should be held that the information was based upon sections 2828 and 2829 alone, the conviction cannot stand, because of the discrimination there made in favor of those vending goods manufactured by themselves in this state as against those vending similar articles of their own product manufactured in other states; or, if based upon section 2823, then it must fail, because that section arbitrarily excepts from its operation peddlers dealing in certain classes of goods, thereby casting upon those peddling another class of commodities a burden not equally imposed upon all. The position assumed by the attorney general is that under section 2823 all engaged in peddling the articles not excepted are taxed equally, and that section 2828 is complete within itself, and does not discriminate in favor of any person or any class of goods; and therefore, under either section 2823 or section 2828, a complete offense is stated, even if that portion of the information which charges that the sale without license was not of commodities manufactured by plaintiffs in error in this state, or did not consist of goods excepted from the provisions of section 2823, was stricken out or disregarded.

It is well known that the object of vesting congress with the exclusive power to regulate commerce between the several states was for the purpose of insuring uniform provisions on the subject. Without this limitation on state legislation, the union and harmony between the states would be injuriously affected by each state seeking to protect its own interests through the imposition of discriminating taxes or duties on imports from other states; so that in order to prevent commerce with each other from being restricted, and retaliatory legislation on the subject resorted to, which would beget irritation that would seek gratification in legislation regardless of consequences, it was imperative that for the regulation of commerce the power and authority to levy imposts and duties should only be exercised by a single authority. State v. North, 27 Mo. 464; Walling v. Michigan, 116 U.S. 446, 6 S.Ct. 454. The wisdom of this provision of the federal constitution is made apparent from an examination of the many authorities on this subject, from which it appears that, notwithstanding this limitation, attempts have been made by many of the states in various ways, and under the guise of different objects, to legislate in favor of commerce carried on by their own citizens and in favor of their own products, as...