Ex parte Snyder

• Court: Idaho Supreme Court
• Writing for the Court: [10 Idaho 685] STOCKSLAGER, C. J.--
• Citation: 79 P. 819,10 Idaho 682
• Decision Date: 03 March 1905
• Parties: IN RE LUTHER SNYDER

79 P. 819

10 Idaho 682

IN RE LUTHER SNYDER

Supreme Court of Idaho

March 3, 1905

CITY ORDINANCE, WHEN VOID-FARMER MAY SELL BEEF IN THE CITY WITHOUT LICENSE.

1. An ordinance by the terms of which a farmer is prohibited from selling the products of his farm, with the exception of milk, fish and game, without first taking out a license from the city, is in violation of section 8 of an act entitled "An act to repeal [10 Idaho 683] section 1651 of the Revised Statutes of the state of Idaho and to provide for the licensing of peddlers, hawkers and solicitors, and prescribing penalties for failure to comply with the provisions of this act." (Sess. Laws 1901, p. 56.)

2. Beef from slaughtered animals raised and slaughtered on the farm is the product of the farm, and may be sold within the corporate limits of cities of this state without license.

(Syllabus by the court.)

ORIGINAL proceeding for writ of habeas corpus. Petition granted.

J. C. Johnson, for Petitioner, cites no authorities on the points decided not found in the opinion.

Wyman & Wyman and C. M. Kahn, for Respondent.

Neither the original section 1651 nor the repealing act in any way states that peddlers or hawkers in farm products shall not pay a license, but it simply says in section 8 that "the provisions of this act shall not be construed to apply to . . . . peddlers or hawkers in farm products." The act is one simply for state and county licenses and does not purport to be exclusive. To the contrary, section 1636, Revised Statutes, which is a part of the same chapter, providing for licenses, says: "No license issued under this chapter authorizes any person to carry on any business within the limits of any incorporated city or town having power by its charter to impose or levy city or town licenses thereafter, unless such person, in addition to the license provided by this chapter, also procures the license required by the ordinances or orders of such city or town." This would seem to be conclusive of this question. (Canova v. Williams, 41 Fla. 509, 27 So. 30; 21 Am. & Eng. Ency. of Law, p. 787.) The legislature has expressly given the authority to the city council to define what a peddler is, and there is no claim made nor can there be any authority shown that the legislature has not the power to authorize the city council to define a peddler. Under the authority given to it by its charter, the city has defined a peddler by ordinance, and it [10 Idaho 684] includes within its terms the petitioner. That one selling products of farms is defined to be a peddler by this ordinance is very clear. (Revised Ordinances of Boise City, sec. 454, p. 106.) The validity of this ordinance is attacked on the ground that it tends to create a monopoly, and is unreasonable, oppressive and prohibitive. There is no attempt made to create a monopoly. There is no prohibition on the farmer selling his products anywhere and on the same terms and conditions of others engaged in peddling; but there can be no question that it is not in restraint of trade to absolutely prohibit the peddling of garden and farm products, meat, poultry, game, etc., about the streets of the city. (McQuillin on Municipal Corporations, p. 765.) It is very important to note the distinction between the Boise city charter and most of those discussed in the cases cited by petitioner. Those cases like City of Burlington v. Dankwardt, 73 Iowa 170, 34 N.W. 801, St. Paul v. Laidler, 2 Minn. 159, 72 Am. Dec. 89, City v. Traeger, 25 Minn. 248, 33 Am. Rep. 462, and City of St. Paul v. Stoltz, 33 Minn. 223, 22 N.W. 634, cited by petitioner, were under charters that simply gives the city authority "to establish and regulate markets," and it was held that ordinances prohibiting the sale of meat except in shops under that ordinance was void. In those cases the cities had no ordinances requiring peddlers to procure licenses, so that those cases are not in point. Some statutes only allow cities to "license and regulate," and a different rule is here applied, but the charter of Boise city provides that they may "license, tax and regulate," and under such a charter petitioner fails to cite one authority which would hold that the amount fixed by the ordinance in this case is unreasonable, prohibitive or in restraint of trade. The purpose of a statute in empowering cities to pass ordinances in restraint of hawking and peddling is forcibly stated in the cases of Graffty v. City of Rushville, 107 Ind. 506, 57 Am. Rep. 128, 8 N.E. 609; South Bend v. Martin, 142 Ind. 40, 41 N.E. 315, 29 L. R. A. 531; Temple v. Sumner, 51 Miss. 13, 24 Am. Rep. 615; Hall v. Commonwealth, 101 Ky. 382, 41 S.W. 2. It would be difficult, if not impossible, to fix any license tax which would fall with perfect equality upon all persons engaged in the same occupation. (See City of St. Paul v. Colter, 12 Minn. 48, 90 Am. Dec. 278; In re Vandine, 6 Pick. 187, 190, 17 Am. Dec. 351; Stull v. De Mattos, 23 Wash. 79, 62 P. 451, 51 L. R. A. 892; City of Chicago v. Bartee, 100 Ill. 57; People v. Russell, 49 Mich. 617, 43 Am. Rep. 478, 14 N.W. 568; Shelton v. Mobile, 30 Ala. 540, 68 Am. Dec. 143; Emert v. State of Missouri, 156 U.S. 306, 15 S.Ct. 367, 39 L.Ed. 432.) The licensing of butchers and restraining of persons selling meat indiscriminately is one that especially commends itself to the lawmaking power as necessary for the preservation of health, and has not commended itself to the courts for special privileges. ( People v. Russell, 49 Mich. 620, 43 Am. Rep. 478, 14 N.W. 568; Cooley on Taxation, 2d ed., pp. 301, 777; Ex parte Haskell, 112 Cal. 416, 44 P. 725, 32 L. R. A. 527; Rosenbloom v. State, 64 Neb. 342, 89 N.W. 1053, 57 L. R. A. 922; McQuillin on Municipal Corporations, pp. 634, 635; 21 Am. & Eng. Ency. of Law, p. 790; also p. 807; Cooley on Taxation, 1141; Ex parte Heylman, 92 Cal. 492, 28 P. 675--rate higher held not oppressive.) There perhaps has been more or less sentimentalism making exemption in favor of farmers in the general laws. Frequently this exemption has been held to be unconstitutional. (Georgia Packing Co. v. Macon, 60 F. 774; McQuillin on Municipal Corporations, pp. 256-298; Town of Mandeville v. Baudot, 49 La. Ann. 236, 21 So. 258.)

STOCKSLAGER, C. J. Sullivan, J., concurs. Ailshie, J., not sitting at the first hearing, expresses no opinion.

OPINION

The facts are stated in the opinion.

[10 Idaho 685] STOCKSLAGER, C. J.--

This is an original application for a writ of habeas corpus. The petitioner was arrested charged with the violation of section 454, Revised Ordinances of the City of Boise. On his trial he [79 P. 820] was convicted and thereafter fined in the sum of $ 15 and costs. The ordinance with which petitioner is charged with violating is as follows: "Peddlers shall be classified and rated as follows: When traveling with more than two animals, first class. When traveling with two animals, second class. When traveling with one animal, third class. When traveling on foot, fourth class. Peddlers of the first class shall pay a license of twenty-five dollars ($ 25) per month; of the second class shall pay a monthly license of twenty [10 Idaho 686] dollars ($ 20); of the third class shall pay a monthly license of fifteen dollars ($ 15); the peddlers of the fourth class shall pay a monthly license of ten dollars ($ 10); that there are excepted from the provisions of this section, persons peddling newspapers, religious tracts, and farmers or gardeners peddling milk, fish or game."

The complaint charged petitioner with peddling his beef in the city of Boise without first procuring a license therefor under said ordinance. Petitioner refused to pay the fine and costs and was committed to the jail of Boise until the fine and costs were paid; that petitioner is still restrained of his liberty under said commitment by said court for refusing to pay said fine and costs. Petitioner first alleges that said ordinance is invalid and void for the reason that the said ordinance is in conflict with article 12, section 2, of the constitution of the state of Idaho.

2. That the said court had no jurisdiction upon which to sustain said proceedings and judgment, for that the said ordinance upon which said judgment and proceedings were based is illegal, unconstitutional and void.

3. That the said ordinance is in conflict with and repugnant to the constitution of the United States.

4. That the defendant is not a peddler or hawker, and that the said ordinance does not apply to the defendant and that the prosecution had under said ordinance is illegal and void and the court had no jurisdiction to assess a penalty thereunder against the defendant herein.

5. That the said ordinance is void, for the reason that it unjustly discriminates between the residents of the same locality and the same county, and against different sections and classes of the same locality.

6. That the said ordinance is void, for that the said tax is not uniform as imposed upon the residents of Boise City and Ada county.

7. That the said ordinance is void, for the reason that the same was established and enacted in favor of a special class, to wit, the butchers of Boise City, Idaho to drive out the products of the farmers of Ada county, Idaho.

[10 Idaho 687] 8. That the amount of the tax for a license as fixed under said ordinance is unreasonable, oppressive, prohibitive, partial and therefore void.

9. That the said ordinance is void, for that it is in restraint of trade and business; that the defendant herein is not a butcher by trade nor carrying on said business, and does not reside in the city of Boise, but is a farmer by trade and occupation and resides near the town of Meridian, Ada county, Idaho and that all the meat that he sold was of the product of his own farm; that he had no office either upon his farm or in Boise City, or at any place whatsoever wherein he conducts any business as a butcher, or as a...