Com. v. Hana

• Decision Date: 14 May 1907
• Parties: COMMONWEALTH SAME v. HANA. SAME v. SHAGOURY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

195 Mass. 262

81 N.E. 149

COMMONWEALTH SAME v. HANA. SAME v. SHAGOURY.

Supreme Judicial Court of Massachusetts, Hampden.

May 14, 1907

COUNSEL

John F. Noxon, for the Commonwealth.

R. J Talbot, for defendants.

OPINION

KNOWLTON C.J.

Each of these defendants was found guilty upon a complaint made under Rev. Laws, c. 65, § 13, as amended by St. 1905, p. 132, c 204, charging him with being a hawker and peddler and with exposing certain goods for sale without any authority or license therefor. The evidence was substantially the same in both cases.

The first question is whether the evidence warranted a finding that the defendant exposed the goods for sale. In each case the defendant called at a house and showed his card to a lady who resided there, which gave his name and described him as an importer and dealer in shirt waists, laces of several stated varieties, silk shawls, art work, embroideries, oriental rugs and several other specified articles. Each of the defendants had in his hand a dress suit case. Hana said to the lady: 'I have some very nice laces that I would like to show you. * * * I would be glad to have you look at them.' She had previously told him it would do him no good to show her what he had to sell and that she did not want to buy. She refused to look at his goods. There was a similar interview and substantially the same conversation between another lady and the other defendant at another house. An examination of the contents of the dress suit case of each defendant showed that he had a miscellaneous collection of kimonas, laces, table spreads and similar articles of cloth or needle work. The dress suit case was not opened at either house.

The meaning of the words 'exposing for sale' differs somewhat in different statutes in reference to the purpose which the statute was intended to accomplish. In Crane v. Lawrence, 25 Q. B. D. 152, the court said: 'The word 'exposed,' which is the word used in section 6, may have different meanings according to the circumstances of the different cases in which it is used. It may mean exposed to the air, it may mean exposed to the water, it may mean exposed to view. It is clear that the intention of the statute is that there shall be an exposure to the purchaser in order that he may see what the article is and may know what he is buying,' etc. See, also, Com. v. Byrnes, 158 Mass. 172, 33 N.E. 343. On the other hand, in Wheat v. Brown (1892) 1 Q. B. 418, it was held under the same statute that margarine when wrapped in paper so as to be invisible to the purchaser, might be exposed for sale within the meaning of the act. Wright, J., said in the opinion: 'The expression 'exposed for sale,' is a well understood term and cannot be limited so as to mean only exposed to view.' We think the words 'exposing for sale' in the statute before us, are satisfied if a peddler has with him in his hand in the presence of one whom he solicits to buy, goods which he refers to in his conversation as contained in a receptacle that he is carrying, which goods he offers to exhibit for the purpose of making a sale, even though they are at the time concealed from view by the receptacle that contains them. The jury were warranted in finding that the goods were exposed for sale.

The defendants excepted to an instruction to the jury that, upon finding certain facts referred to in the statute, they would be warranted in returning a verdict of guilty, and they now call in question the constitutionality of the statute. When a case involves the punishment of the defendant for a crime, the constitutionality of the statute authorizing the prosecution may be questioned at any stage of the proceedings. In Com. v. Caldwell, 190 Mass. 355, 76 N.E. 955, 112 Am. St. Rep. 334, this statute was held unconstitutional in that part which discriminates between agricultural products of the United States and agricultural products of other countries, in reference to the requirement of a license to peddle them; but it was not determined whether the statute was constitutional in other particulars, nor whether its validity in this particular rendered it wholly void. After this decision this part of the law was amended by St. 1906, p. 317, c. 345, which took effect on June 2d, after the trial in the district court upon the complaints now before us. The constitutionality of the statute is also attacked on other grounds.

Under section 19, no one can obtain a license unless he is, or has declared his intention to become a citizen of the United States. It is contended that this provision is in violation of the fourteenth amendment to the Constitution of the United States which provides that no state shall 'deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction, the equal protection of the laws.' It is decided that this provision applies to aliens as well as to citizens of the United States, and it is clear that a statute, arbitrarily forbidding aliens to engage in ordinary kinds of business to earn their living, would be unconstitutional and void. Wo Lee v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; In re Ah Chong (C. C.) 2 Fed. 733; In re Lee Sing (C. C.) 43 F. 359; Pearson v. Portland, 69 Me. 278, 31 Am. Rep. 276. Accordingly, it was held in an elaborate opinion in State v. Montgomery, 94 Me. 192, 47 A. 165, ^[1] that a statute for the licensing of hawkers and peddlers in that state was unconstitutional and wholly void, because of a discrimination between aliens and citizens like that in our statute. See, also, State v. Mitchell, 97 Me. 66, 53 A. 887, 94 Am. St. Rep. 481. There is, however, an important question which was not much discussed in that case, whether the Legislature, in the exercise of the police power, could discover a reason for withholding peddlers' licenses from aliens. The business of peddling furnishes such opportunities for the practice of fraud that it is a proper subject for legislative regulation. That such regulation has been practiced from early times, both in Europe and America, is shown at length by Mr. Justice Gray in Emert v. State of Missouri, 156 U.S. 296, 15 S.Ct. 367, 39 L.Ed. 430. The requirement of Rev. Laws, c. 65, § 19, that before receiving a license the applicant shall file a certificate from the mayor of a city or the majority of the selectmen of a town that to the best of his or their knowledge and belief he is of good repute for morals and integrity, is a reasonable regulation for the protection of the public. If, in the same interest, the Legislature deems it important that licenses shall be granted only to citizens of the United States, or to those who have declared their intention to become citizens, it can hardly be said that they have exceeded their constitutional right in passing a law to that effect. Upon a similar question in reference to the granting of licenses to sell intoxicating liquors, decided in Trageser v. Gray, 73 Md. 250, 254, 255, 257, 20 A. 905, 906 (9 L. R. A. 780, 25 Am. St. Rep. 587), the court used this language: 'It is thought proper to confine the license to citizens of the United States, of temperate habits and good moral character. The privilege is very liable to be abused, and abuses would produce great public detriment. It therefore seemed wise to the Legislature to confer it only on those who, being natives of the country, may reasonably be supposed to have a regard for its welfare, or who, not being natives, had, as required by the naturalization law, proven by credible testimony before a court of justice that they were attached to the principles of the Constitution...