Ex parte Byles

• Decision Date: 21 February 1910
• Parties: Ex parte BYLES
• Court: Arkansas Supreme Court

126 S.W. 94

93 Ark. 612

Ex parte BYLES

Supreme Court of Arkansas

February 21, 1910

Certiorari to Independence Circuit Court; Charles Coffin Judge; reversed.

Judgment reversed and quashed.

Hal L Norwood, Attorney General, for appellant.

1. The act of 1909 omits the objectionable proviso of the act of 1901, which led this court to pronounce the latter act void. 75 Ark. 542. The Legislature was familiar with this decision, and passed an act without any exceptions to its provisions.

2. The act does not interfere with or attempt to burden commerce among the States. 82 Ark. 309-321. The Legislature is presumed to act in view of the Constitution, and not to intend the violation of its provisions. Lewis' Sutherland on Stat. Const. § 498; 75 Ark. 309; 89 Ark. 466; 63 Ark. 576; 112 U.S. 261; 4 N.H. 16; 17 N.Y. 235; 118 Mass. 239; 200 U.S. 226; 197 U.S. 60; 27 Mont. 394; 77 Minn. 483; 90 P. 307; 153 Miss. 205; 114 U.S. 196; 136 U.S. 114; 100 U.S. 676; 156 U.S. 296; 21 Cyc. 365.

3. The act may be sustained on two grounds: (1) on the police power of the State for regulation; (2) on the power of taxation for revenue. 179 U.S. 270; 50 L. R. A. 685; 68 F. 750; 8 Cyc. 875 and note 31; 92 Me. 453; 8 N.D. 286; 78 N.W. 984; 8 Cyc. 1046. A certain class of persons may be required to procure license for the sale of certain classes of goods or for the pursuit of certain avocations without violating the 14th amendment. 8 Cyc. 1046; 179 U.S. 270; 50 L. R. A. 685; 68 F. 750; 110 Ga. 584; 59 Id. 535; 63 S.C. 61; 68 Vt. 625; 9 Fed. Stat. An. 620 and cases cited, 623 notes, 546; 194 U.S. 621; 171 Id. 106.

4. The act does not conflict with section 5, article 16, Const. Byles was a peddler, pure and simple. Kirby's Dig. § § 1881, 3106; 8 N.E. 609; 84 Ga. 754; 105 Id. 457; 192 U.S. 500.

Arthur C. Lyons and Samuel M. Casey, for appellee.

1. States cannot burden commerce among the States by legislative acts. The are void. Const. U. S. art. 1, § 8; 153 U.S. 289; 120 Id. 489; 127 Id. 640; 95 Id. 465; 92 Id. 259; 135 Id. 161; 128 Id. 129; 187 Id. 622.

2. States cannot discriminate against nonresidents in favor of their own citizens. Const. U.S. art. 4, § 2; 136 U.S. 313; 75 Ark. 542; 87 S.W. 1030; 97 P. 129; 45 F. 3-5; 42 N.W. 977-8; 120 U.S. 489-498; 19 U.S. 45.

3. No person can be denied the equal protection of the laws. Const. U. S. and Const. Ark., art. 2, § 18; 100 P. 296; 43 S.W. 513; 51 N.E. 136; 97 N.W. 124; 70 A. 986; 97 P. 129; 47 So. 1008; 46 P. 255; 72 N.W. 67; 100 P. 296; 123 N.W. 823; 184 U.S. 540; 79 F. 627; 165 U.S. 150-165; 104 P. 401-5-8; 123 N.W. 408; 55 S.W. 627; 49 F. 164.

4. Taxation must be equal and uniform. Const. Ark., art. 16, § 5; 109 S.W. 293.

5. The act is prohibitive of competition and void. 149 F. 913; 88 P. 459; 97 P. 129-131; 104 P. 401-5; 104 S.W. 153.

Moore, Smith & Moore, amici curiae.

1. The appellee was not a peddler within the act. 12 Cush. 393; 114 Mass. 267; 114 Mass. 267; 12 Cush. 493-6; 20 S.E. 544; 47 F. 539; 8 P. 865; 39 N.W. 191; 28 Id. 13; 6 So. 393; 132 Ill. 380; 55 N.J.L. 522; 69 N.H. 424; 50 La. An. 574; 74 S.W. 31; 167 Ind. 502; 84 Ga. 754; 105 Id. 457.

2. The act is in conflict with art. 1, § 8, Const. U. S. and void. 120 U.S. 489; 128 Id. 129; 135 Id. 100; 153 Id. 289; 185 Id. 27; 187 Id. 622; 203 Id. 507.

3. The method of the Spaulding Company in doing business was clearly within the protection of the interstate commerce clause. 47 S.E. 651; 125 U.S. 465; 135 Id. 161; 170 Id. 413; 191 Id. 441; 47 S.E. 658; 156 U.S. 296; 100 Id. 676; 114 U.S. 622; 8 Wall. 123.

OPINION

MCCULLOCH, C. J.

The respondent, W. H. Byles, was arrested in Independence County on the criminal charge of violating the provisions of an act of the General Assembly approved April 1, 1909, entitled "An act to regulate the sale of lightning rods, steel stove ranges, clocks, pumps, buggies, carriages and vehicles in the several counties of this State," and on a trial before a justice of the peace of that county he was convicted of the alleged offense, and a fine was assessed against him. The proceedings before the justice of the peace were in regular form, and the information which was the basis of the prosecution properly charged a violation of the statute referred to above. Respondent refused to pay the fine assessed against him, and presented to the chancellor of the Pulaski Chancery Court his petition for habeas corpus, asking that he be discharged from custody. On the return of the writ the chancellor decided that the statute in question is void, and ordered respondent's discharge. The Attorney General brings the proceedings here by certiorari for review, and seeks to quash the judgment of the chancellor.

The only question before us now is as to the validity of the statute, for, if the statute is valid, the question of respondent's guilt of a violation of its provisions can not be tested in any other manner than by direct appeal from the judgment of conviction. State v. Neel, 48 Ark. 283, 3 S.W. 631; Ex parte Foote, 70 Ark. 12, 65 S.W. 706.

The statute, the validity of which is attacked, reads as follows:

"Sec. 1. That hereafter before any person, either as owner, manufacturer, or agent, shall travel over and through any county and peddle or sell any lightning rod, steel stove range, clock, pump, buggy, carriage or other vehicle or either of said articles, he shall procure a license as hereinafter provided from the county clerk of such county, authorizing such person to conduct such business.

"Sec. 2. That, before any person shall travel over or through any county and peddle or sell any of the articles mentioned above, he shall pay into the county treasury of such county the sum of two hundred ($ 200) dollars, taking the receipt of the treasurer therefor, which receipt shall state for what purpose the money was paid. The county clerk of such county, upon the presentation of such receipt, shall take up the same and issue to such person a certificate or license, authorizing such person to travel over such county and sell such articles or article for a period of one year from the first day of January preceding the date of such license.

"Sec. 3. Any person who shall travel over or through any county in this State and peddle or sell, or offer to peddle or sell, any of the above enumerated articles without first procuring the license herein provided for shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than two hundred ($ 200) dollars nor more than five hundred ($ 500) dollars.

"Sec. 4. That any person who shall travel over or through any county in this State and peddle or sell any of the articles mentioned above shall be deemed and held to be a peddler, under the provisions of this act."

This statute taxes the privilege of peddling the several articles enumerated, and defines a peddler within the meaning of the statute to be "any person who shall travel over or through any county in this State and peddle or sell any of the articles mentioned above." The Constitution of this State (art. 16, § 5) provides that "the General Assembly shall have power from time to time to tax hawkers, peddlers, ferries, exhibitions and privileges in such manner as may be deemed proper." But, aside from any express constitutional sanction, as said by Judge Cooley, "everything to which the legislative power extends may be the subject of taxation, whether it be person or property or possession, franchise or privilege, or occupation or right. Nothing but express constitutional limitation upon legislative authority can exclude anything to which the authority extends from the grasp of the taxing power, if the Legislature in its discretion shall at any time select it for revenue purposes." 1 Cooley, Taxation (3 ed.), p. 9.

We need not stop, therefore, to consider whether the statute in question imposes a tax for revenue purposes or is merely a police regulation, for the Legislature can exercise either power, and its effect is to impose a license tax on certain privileges. If the statute be found free from objection on the charge of unjust classification, it can be justified either as a police regulation or as a privilege tax imposed for the purpose of raising revenue. State v. Montgomery, 92 Me. 433, 43 A. 13; State v. Webber, 214 Mo. 272, 113 S.W. 1054; People v. Russell, 49 Mich. 617, 14 N.W. 568. It does not, however, impose a tax on property, and is therefore not within the constitutional mandate requiring that all property shall be taxed according to its value, and that all taxation shall be equal and uniform. Fort Smith v. Scruggs, 70 Ark. 549, 69 S.W. 679.

In the case of Ex parte Deeds, 75 Ark. 542, 87 S.W. 1030, we declared to be invalid a similar statute, except that it contained a proviso exempting from its operation resident merchants of the county. The General Assembly of 1909 re-enacted the statute without the exemption, thus freeing it from the objectionable feature condemned in the Deeds case. That decision was placed on the ground that the statute unjustly exempted from its operation a certain class of merchants, and it has no bearing on the present case. The statute is attacked on the ground that it arbitrarily classifies certain articles of trade and taxes the business of selling the same, and that this operates as an unjust discrimination against those engaged in the business of selling those articles.

Before entering into a discussion of this question it is well to notice a general principle which guides the courts in determining the validity or constitutionality of legislative enactments. It is that the duty of a court in testing the validity of a statute is to resolve all doubts in favor of the legislative action and to uphold it unless clearly an abuse of...