City of Cherokee v. Fox

• Decision Date: 09 July 1885
• Citation: 7 P. 625,34 Kan. 16
• Parties: THE CITY OF CHEROKEE v. J. F. Fox
• Court: Kansas Supreme Court

7 P. 625

34 Kan. 16

THE CITY OF CHEROKEE v. J. F. Fox

Supreme Court of Kansas

July 9, 1885

Appeal from Crawford District Court.

AT the April Term, 1884, of the district court, the defendant Fox was convicted and sentenced to pay a fine of $ 5 and the costs of the prosecution, for a violation of a certain ordinance of the city of Cherokee. He appeals. The opinion states the material facts.

Judgment affirmed.

John T Voss, for appellant.

E. A Perry, and B. F. Pursell, for appellee.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

The defendant, J. F. Fox, was tried before E. M. Bogle, police judge of the city of Cherokee, on a complaint for violating a certain city ordinance. After conviction, he appealed to the district court, where he was tried before the court without a jury, and was again convicted, and was sentenced to pay a fine of five dollars and the costs of the prosecution. He now appeals to this court.

The defendant claims that both the ordinance and the complaint under which he was convicted are void, and that the evidence introduced on the trial does not prove the complaint, nor any violation of any ordinance or law. He claims that the ordinance is void for the reason that it is class legislation, that it makes unjust discriminations, is partial and oppressive in its operation, is inconsistent with public policy, and has no title. The ordinance reads as follows:

"Be it ordained by the Mayor and Councilmen of the city of Cherokee, Kansas:

"SECTION 1. That no professional hawker or peddler of any article of merchandise or traffic usually kept for sale by any merchant or manufacturer of this city shall be permitted to sell any such article of merchandise or traffic at retail, or offer the. same for sale, within the limits of the city, without first having a license therefor, as hereinafter provided.

"SEC. 2. That all proprietors or transient auctioneers shall pay into the city treasury a license tax as hereinafter provided.

"SEC. 3. The license tax under the provisions of this ordinance shall be at the rate of two dollars and fifty cents per day: Provided, That no license shall be issued for less than two days.

"SEC. 4. Any person or persons violating the provisions of this ordinance shall, upon conviction thereof, be fined in a sum not less than five nor more than twenty-five dollars for each and every offense thereof, each day's violation being considered a separate offense."

We do not think that the ordinance is void for any reason. The evidence tended to show that the defendant was a hawker, a peddler, and an auctioneer; but we would think that it was not intended in the complaint filed against him to charge him with being anything more than a hawker, or with offering his goods for sale or selling them in any other character than as a hawker within the meaning of § 1 of the ordinance. Under that section he was not prohibited from offering his goods for sale, or selling them. Under that section he could offer his goods for sale and sell them as a merchant or manufacturer, without having any license therefor; or, he could procure a license, and then offer his goods for sale and sell them under such license as a hawker or peddler; or, if his goods were not such as are usually kept for sale by any merchant or manufacturer of the city of Cherokee, he could offer them for sale and sell them as a hawker or peddler without having any license therefor. There are some good reasons for all these distinctions and discriminations, and we cannot hold that the ordinance is invalid because thereof. Class legislation is sometimes permissible, and under some circumstances is valid; ( City of Topeka v. Gillett, 32 Kan. 431, 435, 436, 4 P. 800;) and this very kind of class legislation has already been held to be valid in Kansas. (City of Newton v. Atchison, 31 Kan. 151, 1 P. 288; Tulloss v. City of Sedan, 31 id. 165.)

The next question is with reference to the title to the ordinance. We think the title is sufficient. It seems to correspond precisely with the requirements of the statute. (Third-Class City Act, § 17, Comp. Laws of 1879, p. 189.)

The next question is with regard to the complaint. It is claimed by the defendant that the complaint is insufficient, for the reason that it seems to have been sworn to before "E. M Bogle, J. P." In other words, it is claimed that the complaint is void for the reason that Bogle, in signing his name to the jurat attached to the complaint, attached the letters "J. P." to his name, meaning justice of the peace, instead of the letters "P. J.," meaning police judge. We do not think that this renders the complaint void. The title to...