Ex parte Davis

• Decision Date: 08 August 1884
• Parties: Ex parte DAVIS. [1]
• Court: United States Circuit Court, District of Kentucky

21 F. 396

Ex parte DAVIS. ^[1]

United States Circuit Court, D. Kentucky.

August 8, 1884

Quigley & Quigley, for petitioner.

Russell & Helm, for respondent.

BARR J.

It appears from the petition of the prisoner, and the return of the jailer in response to the habeas corpus, that Davis has been indicted for selling goods, wares, and merchandise as a peddler without a license, and that he has been convicted and fined $100, which he has failed to pay and is now imprisoned under the law. This court cannot discharge the prisoner unless the law under which he has been indicted and convicted is void because it violates the constitution of the United States. If, however, this law is clearly a violation of the federal constitution, it is the duty of this court to discharge him. Rev. St. Sec. 753; Ex parte McCready, 1 Hughes, 598; In re Brosnahan, 18 F. 62. The constitution of the United States is the supreme law and must be obeyed. The question of whether congress or the legislature of a state has violated its provisions, is always one of delicacy, and one in which the courts will solve doubts in favor of the constitutionality of legislative enactment. The petitioner, Davis, was indicted and convicted under the provisions of the eighty-fourth chapter of the General Statutes. The first section of this chapter provides that 'all itinerant persons vending goods, wares merchandise, * * * or any other thing, * * * shall be deemed a peddler;' and subsequent sections required all peddlers to obtain a license to sell, and provided that if any person violate the provisions of the chapter he shall be fined $100 and in default of payment of the fine shall be imprisoned not less than 50 nor more than 100 days in the jail of the county where the offense was committed. The General Statutes were passed in April, 1873, and went into effect December 1, 1873. The legislature, at its next session passed an act, February 21, 1874, entitled 'An act to amend chapter 84 of General Statutes, title 'Peddlers,"' which is as follows:

'(1) Be it enacted by the general assembly of the commonwealth of Kentucky, that chapter eighty-four of the General Statutes, title, 'Peddlers,' be and the same is hereby so amended that itinerant persons who are citizens of this state, and who vend exclusively goods, wares, and merchandise, which are the growth, product, or manufacture of this state, shall not be deemed peddlers, nor required to take out license under the provisions of said chapter.'

This amendment made a discrimination between citizens of this state and citizens of other states, and between 'goods wares, and merchandise which are the growth, product, and manufacture' of this state, and those which are the product or manufacture of other states. This discrimination is clearly unconstitutional, (Welton v. Missouri, 91 U.S. 275; Guy v. Baltimore, 100 U.S. 434,) and, being unconstitutional, the amendment is null and void. But this should not release the petitioner, as he was prosecuted under the original act, unless ...