Grossman v. City of Indianapolis
| Decision Date | 29 June 1909 |
| Docket Number | 21,455 |
| Citation | 88 N.E. 945,173 Ind. 157 |
| Parties | Grossman et al. v. City of Indianapolis et al |
| Court | Indiana Supreme Court |
Rehearing Denied November 19, 1909, Reported at: 173 Ind. 157 at 167.
From Marion Circuit Court (16,837); Charles Remster, Judge.
Suit by Jacob Grossman and others against the City of Indianapolis and others. From a judgment for defendants, plaintiffs appeal.
Affirmed.
Merrill Moores and Henry Warrum, for appellants.
F. E Matson, C. D. Bowen and J. D. Peirce, for appellees.
Appellants brought suit to enjoin the enforcement of an ordinance of the city of Indianapolis to license and regulate the business of junk dealers. Appellees' demurrers to the complaint on the ground of insufficient facts were sustained, and, appellants, declining to amend, final judgment was rendered against them, from which they appealed.
Error is assigned upon the sustaining of appellees' demurrers to the complaint.
The ordinance is pleaded in full in the complaint, and its provisions, in substance, are: (1) That it shall be unlawful to engage in the business of a junk dealer in said city without a license. (2) That the application for license shall be of a prescribed form, and be signed by three resident freeholders, certifying to the good moral character of the applicant. (3) That the license fee shall be $ 50. (4) That only one junk store may be kept under a single license, but the licensee may change location on written notice to the city controller. (5) "Every person, firm or corporation licensed to conduct, maintain or engage in the business of a junk dealer, shall keep a book in which shall be legibly written in ink, at the time of the purchase, taking or receiving of any goods, articles, or things, and preserve an accurate account and description in the English language, of the goods, articles, or things purchased, taken or received; the amount of money paid therefor, the time of purchasing, taking or receiving same; the name, residence, age, color, height, weight, complexion, style of beard, style of dress, and number of license badge of the person or persons selling or delivering said goods, articles or things." (6) That the licensee shall, on a prescribed form, before noon of each day, make out and deliver to the chief of police a correct and legible copy from the book required by section five to be kept. (7) That the dealer's book shall at all times be open to the inspection of the chief of police. (8) That it shall be unlawful to purchase or receive goods from an intoxicated person. (9) That all goods and articles purchased or received shall be retained by the dealer for not less than forty-eight hours before disposing of the same. (10) That the penalty for violations shall be as prescribed, and all conflicting ordinances are repealed.
It is alleged that appellants, and others for whom they sue, are citizens of the United States, of the State of Indiana, and of the city of Indianapolis, and junk dealers in said city; that they buy of peddlers, hucksters, factories, stores, railroad companies and individuals, and often handle fifty tons of iron per day as the result of many hundreds of purchases; that the margin of profit is small, and success in business is contingent upon minimum expense in handling, accurate sorting and quick sales; that there are more than thirty junk dealers in said city, and competition among them and other similar dealers elsewhere is sharp; that appellants in their business employ three men and two women, and occupy a tract of land fifty by eighty feet, for which they pay a monthly rental of $ 20, and with a cash capital of $ 2,000 do a business of $ 30,000 per year; that the enforcement of the ordinance would require them to rent double the space now occupied, employ not less than ten men, and require a capital of at least $ 10,000.
The complaint alleges with particularity the requirements for sorting and the numerous classifications made of iron, copper, brass, lead, tin, rags, rope, paper and rubber, and avers that it is not practicable to keep each individual purchase separate and distinct, to make and preserve a description of articles purchased each day, or to retain the same for a period of forty-eight hours; that many purchases are made by telephone, telegraph and mail, and it is not possible for the dealer to inform himself as to the age, color, weight, complexion, style of beard and dress of the seller; that it is not practicable to keep and report the price of each article purchased, and to do so would make public and destroy appellants' business.
It is alleged that the ordinance is unreasonable and oppressive, wholly invalid and void, because it attempts: (1) to license junk dealers, although they are licensed by the State; (2) to license and regulate junk dealers under authority to license and regulate junk-stores; (3) to prohibit any dealer from keeping more than one store; (4) to restrain trade by requiring junk dealers to enter upon their books matters of which they can have no knowledge, and to prevent purchases by mail, telegraph or telephone; (5) to prohibit dealers from purchasing from persons other than licensed junk dealers, and from intoxicated persons; (6) to make public the private business of the dealer; (7) to restrict trade, by prohibiting a resale within forty-eight hours.
It is alleged that the ordinance is in violation of the Constitution of the United States, in that (1) it abridges the privileges and immunities of appellants as citizens of the United States, and imposes unreasonable restrictions upon trade and commerce; (2) deprives appellants of their property without due process of law; (3) denies them equal protection of the law; (4) infringes the authority of congress to regulate commerce among the states.
It is alleged that appellees are threatening to, and if not restrained will, bring many actions to enforce the penalties of the ordinance and destroy the business of appellants and others for whom they sue, and that no adequate remedy at law exists.
Appellee city is authorized to enact ordinances "to tax, license and regulate second-hand and junk-stores, and pawn-brokers, and to forbid persons engaged in any such business from purchasing or receiving any article whatever from minors without the consent of their parents or guardians." Acts 1905, p. 219, § 53, subd. 43, § 8655 Burns 1908.
Appellants' right to maintain a suit in equity to enjoin the enforcement of the ordinance is not challenged by appellees. If the ordinance is unauthorized and wholly void, as alleged, injunction on behalf of a number of interested parties may be an appropriate remedy to prevent its enforcement, and thereby to avoid a multiplicity of actions. Davis v. Fasig (1891), 128 Ind. 271 276, 27 N.E. 726. McQuillin, Mun. Ord., § 285.
Appellants' counsel insist that cities are empowered only "to tax license and regulate junk-stores," and not junk dealers, and relying upon the principle that statutes delegating authority must be strictly construed, and all doubts resolved against the grantee, they contend that this ordinance, directed as it is against the business of junk dealers, is unauthorized. The complaint avers that appellants are not only junk dealers, but also proprietors of a junk-store, and their grievances are predicated upon the claim that an enforcement of the ordinance would unwarrantably interfere with such business. The distinctive rights of peddlers, who only go about in wagons gathering junk, are not involved in this appeal. If the granting words of the statute were merely to tax and regulate junk-stores, appellants' construction would seem more persuasive, but the authority "to license" is also conferred. The power to license includes the concurrent power to prohibit, except upon compliance with reasonable requirements. A license is a privilege granted to a person or persons, and not to inanimate things, to pursue some occupation, or to exercise some right, which has been declared unlawful except upon compliance with certain conditions. The existing evils developed by the unregulated junk business were well known, and, keeping in mind the manifest purpose of the legislation, we are led to the conclusion that the grant of power to license and regulate junk stores was intended to and does authorize the enactment of...
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