City of South Bend v. Martin

• Citation: 41 N.E. 315, 142 Ind. 31
• Case Date: September 17, 1895
• Court: Supreme Court of Indiana

142 Ind. 31
41 N.E. 315

CITY OF SOUTH BEND
v.
MARTIN.

Supreme Court of Indiana.

Sept. 17, 1895.

Appeal from circuit court, St. Joseph county; L. Hubbard, Judge.

Action by the city of South Bend against William C. Martin. From a judgment of the circuit court reversing a judgment in the mayor's court for plaintiff, plaintiff appeals. Reversed.

Wilbert Ward, for appellant. Joseph G. Orr, for appellee.

McCABE, J.

The appellant prosecuted the appellee before the mayor of said city to recover the penalty, of not less than $1, nor more than $20, provided in an ordinance with a violation of which the appellee was charged in the verified complaint filed. Said complaint charged “that the defendant, on the 12th day of September, 1894, at the city * * * aforesaid, violated sections Nos. 24 and 25 of Ordinance No. 938 of said city, passed by the common council thereof on the 11th day of December, 1893, and amended August, 1894, by carrying on the business of hawking and peddling within the corporate limits of the city of South Bend by carrying, exposing, offering, and crying for sale, articles of merchandise, to wit, rattan rocking chairs, in the public streets and avenues of said city, without having a license for that purpose; that while so engaged the defendant sold and delivered to one Emma Wright one rattan rocking chair, for the sum of six dollars; that said articles of merchandise so sold were not newspapers nor produce nor provisions, and that said sales were not for future delivery of said chairs; that defendant is not a wholesale traveling merchant.” The city recovered judgment in the mayor's court for one dollar, and the defendant appealed to the circuit court, where a trial resulted in a judgment for the defendant. The plaintiff appeals therefrom to this court. One of the questions presented by the record and briefs is whether the ordinance referred to is valid. That alone rescues the appeal from the exclusive jurisdiction of the appellate court. Acts 1891, p. 39; Rev. St. 1894, § 1336. The only error assigned is that the circuit court overruled appellant's motion for a new trial. The ground for the motion for a new trial is that the decision of the court was contrary to law and the evidence.

The only evidence in the cause was the following agreed statement of facts:

“A. H. Ordway & Co. are manufacturers of rattan chairs, residing in South Framingham, Mass., of which state they are citizens, and in which city they have their manufactory and place of business. In the prosecution of the said business they sell directly to the people of the different states, and do not sell to retail dealers in the trade. They ship their chairs from the factory to A. H. Ordway & Co., in care of their agents at different points throughout the United States. In the prosecution of their said business they employ men, who go about from town to town in

[41 N.E. 316]

Indiana and other states of the Union with the chairs, going personally from house to house, and selling the chairs on the installment plan, retaining the title in the chairs until they are fully paid for, and deliver the goods at the time the sales are made. The defendant William C. Martin was an employé of the said A. H. Ordway & Co., employed by them to travel and sell their chairs in the manner stated, upon a commission on the amount of his sales, at the time of his arrest September 13, 1894. The particular chairs which defendant was engaged in selling in South Bend, Indiana, at the time of his arrest, were shipped by the owners and manufacturers, A. H. Ordway & Co., from South Framingham, Mass., to A. H. Ordway & Co., in care of their agent at Chicago, state of Illinois, where they have a branch and repository, and there reshipped from Chicago to South Bend, Indiana. The defendant, William C. Martin, at the time of his arrest, and before, was engaged in selling chairs within the corporate limits of the city of South Bend, by going personally from house to house within said city, and selling the chairs, and delivering the same at the time of sale, and was acting solely for A. H. Ordway & Co.; and the said sales were made on the installment plan, and the title retained in A. H. Ordway & Co. until same are fully paid for. The common council of the city of South Bend had enacted an ordinance, in force at the time of the arrest of the said William C. Martin, entitled ‘An ordinance concerning the licensing of certain extraordinary trades and establishments.’ Passed December 11, 1893; amended August 28, 1894. Section 24 of said ordinance provides as follows:

‘It shall be unlawful for any person to carry on the business of hawking and peddling within the corporate limits of South Bend, at wholesale or retail, by carrying, exposing or crying for sale within any street, avenue, alley or public square of said city, or otherwise, any article of commerce without a license from said city for that purpose: provided this section shall not apply to the sale of newspapers nor to produce and provisions nor fruit of peddlers' own raising, nor to taking orders for future delivery of any kind of goods, wares or merchandise, nor to wholesale travelling merchants and farmers who sell only retail dealers in like commodities. Any person violating any section of this ordinance shall be fined for each offense not less than one dollar nor more than twenty dollars.’

‘Sec. 25. License to hawkers and peddlers shall be signed by the mayor and countersigned by the clerk on payment of a license fee as follows: For carrying goods by hand, one dollar per day, five dollars per week, ten dollars per month and twenty dollars per year. For selling from any kind of vehicle two dollars per day, eight dollars per week, fifteen dollars per month, twenty-five dollars per year. The clerk for such services shall receive fifty cents for each license issued to be paid by the applicant.

Sec. 26. No license issued under any section of this ordinance shall be transferable: nor shall any person other than the person named in the license, be permitted to use the same, nor shall any license protect any person from incurring the penalties prescribed by this ordinance except the license named in the license.'

The defendant, William C. Martin, at the time of his arrest, was not engaged in the sale of newspapers, produce, provisions, or fruit, and was not taking orders for future delivery, and was not a wholesale traveling merchant, but was selling at retail to consumers. The defendant, * * * at the time of his arrest, had not obtained a license as required by said ordinance. The defendant was arrested, tried, convicted, and sentenced to pay a fine of * * * $1 and costs, under said ordinance, before D. B. J. Schafer, mayor of said city of South Bend, September 13, 1894. If the court should be of the opinion, upon the facts stated, that the defendant * * * was liable to pay the license fee provided by said ordinance, then judgment to be rendered for the plaintiff for one dollar ($1) and costs of suit. If the court should be of opinion that the said Martin was not liable to pay, then judgment to be entered for the defendant for costs of suit.”

Subdivision 23, § 3106, Rev. St. 1881 (section 3541, Burns' Rev. St. 1894), empowers cities “to regulate the ringing of bells and crying of goods and to restrain hawking and peddling.” It has been held by this court that this statutory provision empowers a city to pass an ordinance requiring a license to hawk and peddle in a city. City of Huntington v. Cheesbro, 57 Ind. 74. The ordinance involved in Graffty v. City of Rushville, 107 Ind. 502, 8 N. E. 609, imposing a penalty on “every person who peddles, hawks, sells, or exhibits for sale, any goods, wares or merchandise not the growth or manufacture of Rush county, Indiana, or shall take orders for any such goods, wares or merchandise for immediate or future delivery about the streets, alleys, hotels, business houses, or at any public or private place in said city,” without a license, was held void both because it violated section 23 of article 1 of the state constitution, which provides that “the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities which upon the same terms shall not equally belong to all citizens,” and because of its plain repugnance to the federal constitution, which commits to congress the exclusive power to regulate commerce among the several states. The provision in that ordinance that brought it in conflict with both constitutions, in the opinion of the court, was its discrimination against “any goods, wares or merchandise not the growth or manufacture of

[41 N.E. 317]

Rush county, Indiana.” Graffty had been taking orders from citizens of said city for shirts, socks, and men's furnishing goods, about the streets, etc., of said city, which were not of the growth or manufacture of said Rush county. That he resided in Indianapolis, and was in the employ of Paul H. Krauss, a manufacturer and dealer in such goods, residing, and having his business house in the city of Indianapolis. That Graffty's manner of business was to carry samples of the different articles manufactured or sold by his employer, and exhibit them, from house to house, to individuals, not dealers, soliciting orders from each individual for such articles, and in such quantities as the individual might require or purchase. The goods thus ordered were to be delivered at a future day, by express or otherwise. He delivered no goods, nor did he carry any goods with him, except the samples. It is easy to see that, as against Graffty, this ordinance, under the facts, was an infringement of the provision quoted from the state constitution; but it is difficult to see how, under those facts, it violated any provision of the federal constitution. It is also easy to see that a case might arise, on a different state of facts, that would make the ordinance void, as to that case, because of its infringement of the...