Clements v. Town of Casper

• Decision Date: 16 January 1894
• Citation: 4 Wyo. 494,35 P. 472
• Parties: CLEMENTS v. TOWN OF CASPER
• Court: Wyoming Supreme Court

35 P. 472

4 Wyo. 494

CLEMENTS v. TOWN OF CASPER

Supreme Court of Wyoming

January 16, 1894

ERROR to District Court for Natrona County, HON. J. W. BLAKE Judge.

C. E Clements was convicted of peddling without a license in the town of Casper in violation of a town ordinance, and prosecuted error. The material facts are stated in the opinion.

Judgment reversed and cause remanded.

C. C Wright, for plaintiff in error.

One who sells goods exclusively by sample is not a peddler, huckster, or an itinerant merchant. The town cannot by ordinance extend the meaning of the term peddler as used in the statutes beyond its ordinary legal meaning. (Commonwealth v. Farnum, 114 Mass. 267; City of Kansas v. Collins, 34 Kan. 434.) The ordinance is in violation of the federal constitution which relegates the control of interstate commerce to congress. (License Tax case, 5 Wall., 462; Cooley's Const. Lim., 201 & 586; 1 Dillon Mun. Corp., 357; Robins v. Shelby Co. Tax Dist., 120 U.S. 489; State Freight tax, 15 Wall., 232; Cooley v. Board, etc., 12 How., 299; the Passenger cases, 7 How., 283; Gloucester Ferry Co. v. Penn., 114 U.S. 196; Wabash, etc., Ry. Co. v. Ogden, 9 Wheat., 1, 222; Walling v. Mich. 116 U.S. 446; Meloup v. Port of Mobile, 127 U.S. 640; Asher v. Texas, 128 U.S. 129; Phila. & S. S. Co. v. Penn., 122 U.S. 326; Western U. T. Co. v. Pendleton, 112 id., 347; State v. Ehert, 103 Mo. 241; City of Kansas v. Collins, supra; Fort Scott v. Pelton, 39 Kan. 764.) The license fee provided by the ordinance is unreasonable.

Alex. T. Butler, for defendant in error.

A defendant to avail himself of exceptions in the description of an offense must prove that he belongs to the excepted class. (Black on Intox. Liq., sec. 444.) The accused is an itinerant merchant and transient vendor of merchandise. (107 Ind. 502; 12 Cush., 495; 1 Parson's Cont., 555; Spanish Fork City v. Mortensen, 24 P. 620 (Utah); 32 Kan. 434; 31 Kan. 151.) The ordinance is valid. (Cooley Const. Lim., 196; 31 N. E., 884; Graffty v. Rushville, 107 Ind. 502; 29 N. E., 410; City of Duluth v. Krupp, 46 Minn. 435; Commonwealth v. Gardner, 133 Pa. 284; In re Butim, 28 Tex. 304; Pierce v. New Hamp., 5 How., 504; Laws 1890, chap. 32, p. 50; Laws 1888, ch. 43, p. 98; Rev. Stat., sec. 468.) Section one of the ordinance applies to both residents and non-residents. Sections two and three are cumulative, and as regards this case their constitutionality is immaterial. The complaint is drawn under section one.

GROESBECK, CHIEF JUSTICE. CONAWAY and CLARK JJ., concur.

OPINION

GROESBECK, CHIEF JUSTICE.

The plaintiff in error was arrested and tried before a police justice of the Town of Casper for the violation of an ordinance of said town concerning peddlers. He was convicted and appealed to the district court of the county, wherein he was tried by the court and convicted. He brings error here attacking the town ordinance as unconstitutional and void as in contravention of the provisions of the Constitution of the United States conferring power upon Congress to regulate commerce among the several states, as in violation of a further provision of the Federal Constitution that the citizens of each state shall be entitled to all privileges and immunities of citizens of the several states, and as demanding an unreasonable license fee. The ordinance of the town was introduced in evidence in the court below, and the material portions of it read as follows:

"AN ORDINANCE CONCERNING PEDDLERS.

"Be it ordained by the Town Council of the Town of Casper:

"Sec. 1. It shall not be lawful for any person or persons to hawk or peddle any goods, wares, merchandise or any other valuable article or things within the corporate limits of the Town of Casper without first having obtained a license so to do as hereinafter provided.

"Sec. 2. No person, persons, company or corporation, being non-resident shall in person or by employe, traveling or local agent, drummer or salesman, sell by samples or otherwise in this town any goods, wares or merchandise, either foreign or domestic, without first obtaining a license as hereinafter provided.

"Sec. 3. Every person selling goods, wares or merchandise by samples or otherwise to be delivered in the future through a storekeeper or merchant of this town is a peddler.

"Sec. 4. This ordinance shall not apply to traveling agents and drummers who sell exclusively by sample or otherwise, to regular merchants doing business in the town, nor to persons selling fruits, vegetables and farm products.

"Sec. 5. Every person wishing to obtain a license as a peddler shall apply to the town clerk or town marshal, stating in what manner, in what articles and for what time he wishes thus to trade. And upon his paying license fee of $ 25.00 in advance for each 24 hours he shall be permitted to trade as a peddler. No license shall be issued for less than 24 hours."

The other sections of the ordinance relate to the penalties prescribed for its violation, the issuance of the license, and the time when the ordinance shall take effect, and need not be considered.

An attempt is clearly made by the ordinance to distinguish between commercial travelers selling exclusively by sample or otherwise to merchants doing business in the town, and to agents selling generally to the inhabitants of the town by sample, without regard to their vocation.

The evidence offered discloses that the plaintiff in error was a traveling agent of Wilder Brothers, located at Lawrence, Kansas, and that he sold by samples, shirts, muslins, woolens, silks, hosiery and other articles, to be forwarded by his commercial house to the parties purchasing.

The goods sold at Casper were forwarded by express to the purchasers, and were not delivered "in the future through a storekeeper or merchant" of the town. The case falls within the principles announced by the Supreme Court of the United States in the case of Robbins v. Shelby Taxing District, 120 U.S. 489, 30 L.Ed. 694, 7 S.Ct. 592, and Leloup v. Port of Mobile, 127 U.S. 640, but the facts of the case as presented by the evidence are more akin to those in the case of Asher v. Texas, 128 U.S. 129, 32 L.Ed. 368, 9 S.Ct. 1, where the plaintiff in error was a resident of the State of Louisiana, and was engaged in the business of soliciting trade by the use of samples for the house for which he worked as drummer, which was located in the City of New Orleans in said state. His territory of operations was in the City of Houston, in Harris County, Texas, and his business was soliciting orders or trade for his employers, who were manufacturers of rubber stamps and stencils. While so engaged, he was arrested and fined for the alleged offense of pursuing the occupation of drummer without a license, contrary to a provision of the Penal Code of the State of Texas. Upon habeas corpus proceedings before the Court of Appeals of that state, the conviction was sustained and the petitioner remanded to the custody of the sheriff, and to review such judgment of the state court, writ of error was brought in the Federal Supreme Court. It was held by that tribunal that there was no distinction between the case and that of Robbins v. Shelby Taxing District, supra, and the judgment of the Court of Appeals of Texas was reversed, and the case remanded with instructions to discharge the prisoner.

The distinction made by the ordinance of the Town of Casper under consideration, between agents and drummers selling exclusively by sample or otherwise to regular merchants of the town and those selling to the public generally, can not alter the situation. The Constitution of the United States having given to Congress the power to regulate commerce, not only with foreign nations, but among the several states, that power is necessarily exclusive whenever the subjects of it are national in their character, or admit only of one uniform system, or plan of regulation, and when Congress has failed to make express regulations of the commerce among the states, this indicates its will that the subject shall be left free from any restrictions or impositions, and any regulation of the subject by the state is repugnant to such freedom, except in matters of local concern only, where the state by virtue of its police power and its jurisdiction of persons and property within its limits, provides for the security of the lives, limbs, health and comfort of persons and the protection of property, or when the state does those things which may otherwise incidentally affect commerce, such as the establishment and regulation of highways, canals, railroads, wharves, ferries and other commercial facilities; or by the passage of inspection laws to secure the due quality and measure of products and commodities; or by the passage of laws to regulate or restrict the sale of articles deemed injurious to the health or morals of the community; or...