City of South Bend v. Martin
| Decision Date | 17 September 1895 |
| Docket Number | 17,499 |
| Citation | 41 N.E. 315,142 Ind. 31 |
| Parties | City of South Bend v. Martin |
| Court | Indiana Supreme Court |
From the St. Joseph Circuit Court.
Judgment reversed.
W Ward, for appellant.
J. G Orr, for appellee.
McCabe J. Howard, C. J., took no part in this decision.
The appellant prosecuted the appellee before the mayor of said city, to recover the penalty of not less than $ 1.00 nor more than $ 20.00 provided in an ordinance, with a violation of which the appellee was charged in the verified complaint filed. Said complaint charged 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; R. S. 1894, section 1331. The only error assigned is that the circuit court overruled appellant's motion for a new trial. The ground of 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:
In the prosecution of their said business, they employ men who go about from town to town in 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 employe of the said A. H. Ordway & Company, 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, in 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 & Company, from South Framingham, Mass., to A. H. Ordway & Company, 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 & Company, and the said sales were made on the installment plan, and title retained in A. H. Ordway & Company until the 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:
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 traveling merchants, and farmers, who sell only retail dealers in like commodities.
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 $ 1.00 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 ($ 1.00) 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 of section 3106, R. S. 1881 (R. S. 1894, section 3541), 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 statuary 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, imposed 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, private dwellings, 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 Rush county, Indiana." Grafty 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 Grafty'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 Grafty 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...
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