Hall v. Johnson, 6053

• Decision Date: 02 November 1933
• Docket Number: 6053
• Citation: 53 Idaho 667,27 P.2d 674
• Parties: W. C. HALL, Appellant, v. F. LEE JOHNSON, Commissioner of Agriculture of the State of Idaho, Respondent
• Court: Idaho Supreme Court

27 P.2d 674

53 Idaho 667

W. C. HALL, Appellant, v. F. LEE JOHNSON, Commissioner of Agriculture of the State of Idaho, Respondent

No. 6053

Supreme Court of Idaho

November 2, 1933

CONSTITUTIONAL LAW-STATUTES, CONSTRUCTION OF-LICENSES-FARM PRODUCE BROKERS.

1. Where statute would be unconstitutional as applied to certain class of business, and constitutional as applied to other classes, court should hold that legislature intended statute to apply to latter class and not to former.

2. Statute requiring farm produce brokers, dealers and commission merchants to procure license for carrying on business and to give bond held inapplicable to cash buyer of farm produce for purpose of resale (I. C. A., secs. 22-1002, 22-1004, 22-1005, 22-1008, 22-1015).

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. Adam B. Barclay, Judge.

Suit to obtain an injunction. Judgment for defendant. Reversed.

Reversed and remanded with direction. No costs allowed.

Chapman & Chapman, for Appellant.

These statutes are unreasonable, unjust and arbitrary by requiring appellant to furnish bond notwithstanding the fact that appellant purchases for cash and makes immediate payment in full upon delivery, either by cash or the evidence thereof by check or draft, and such requirement is unreasonable, unjust and arbitrary in effect requiring appellant to do a useless and futile act, since in such a transaction there is no one to be protected by said bond. (People v. Perry, (Cal App.) 291 P. 233, 243; 212 Cal. 186, 298 P. 19, 76 A. L R. 1331.)

Bert H. Miller, Attorney General, and Leo M. Bresnahan, Assistant Attorney General, for Respondent.

The provisions of chapter 10 of title 22, I. C. A. 1932, requiring the appellant and the others to procure a license, furnish a bond and pay a license fee, are not a violation of any constitutional provisions. Any trade, calling or occupation may be reasonably regulated if the general nature of the business is such that, unless regulated, many persons may be exposed to misfortune or fraud against which the legislature can properly protect them. (People v. Beakes Dairy Co., 222 N.Y. 416, 119 N.E. 115, 3 A. L. R. 1260; State v. Mohler, 98 Kan. 465, 158 P. 408; affirmed, 248 U.S. 112, 39 S.Ct. 32, 63 L.Ed. 153; Northern Cedar Co. v. French, 131 Wash. 394, 230 P. 837; 133 Wash. 692, 233 P. 39.)

MORGAN, J. Budge, C. J., and Givens, Holden and Wernette, JJ., concur.

OPINION

MORGAN, J.

This is a suit to procure an injunction against respondent, who is commissioner of agriculture of Idaho, restraining him from enforcing against appellant the sections of the code hereinafter quoted.

It is alleged in the amended complaint that appellant is a citizen and resident of Murtaugh, Twin Falls county, Idaho, where he has been engaged in the general mercantile business, and, during 1932 was and for some time prior thereto had been, "engaged in the business of buying for the purpose of resale or sale and of selling or offering to sell, buying or offering to buy, negotiating or offering to negotiate, the sale or purchase of fruits and vegetables in carload lots, and particularly including potatoes, from growers thereof or dealers therein, for cash and in some instances evidencing the payment thereof by checks or drafts drawn and signed by him upon banks within the State of Idaho, and in other states, payable to and delivered by him to the vendors of such farm produce."

It is further alleged that respondent has informed appellant that the acts done and committed by him as aforesaid, are in violation of the statute of Idaho relating to farm produce brokers, farm produce dealers and farm produce commission merchants, in that he has not obtained a license and given a bond for 1932, as provided by said statute, and that respondent threatens to and will, unless restrained therefrom, cause a criminal complaint to be filed and a warrant of arrest to be issued against appellant, and will cause him to be prosecuted for violation of said statute.

The complaint is based on the theory that the statute requiring farm produce brokers, dealers and commission merchants to give bonds and procure licenses as a condition precedent to engaging in business is unjust, unreasonable, discriminatory, harsh, oppressive and arbitrary and violative of art. 1, sec. 1 of the constitution of Idaho, and sec. 1 of the fourteenth amendment of the constitution of the United States.

One of appellant's grounds of complaint that the statute is unjust, unreasonable and arbitrary is that it requires him to obtain a license and give a bond as a farm produce broker, dealer or commission merchant although he purchases for cash and makes immediate payment in full on delivery and, he contends, to require him to obtain such license and furnish such bond compels him to do a useless and futile thing, since such transactions do not require the regulation of a license and there is no one to be protected by the bond.

A demurrer to the amended complaint was sustained, appellant refused to further plead and judgment was entered dismissing the action. This appeal is from the judgment.

Among appellant's contentions is that the statute under consideration cannot be made to apply to him, a cash purchaser of farm products, and if construed to be applicable to such a purchaser said statute infringes on and impairs his inalienable right to acquire, possess and protect property, guaranteed to him by art. 1, sec. 1 of the constitution of Idaho, which provides:

"All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty; acquiring, possessing and protecting property; pursuing happiness and securing safety."

The contention is not made in respondent's brief that, as a general rule, a suit in equity may not be maintained to prevent a criminal prosecution, and we will proceed on the theory that the case is within one of the exceptions mentioned in Nims v. Gilmore, 17 Idaho 609, 107 P. 79.

Respondent contends that a statute which requires a farm produce broker, dealer or commission merchant to give a bond and procure a license, although he purchases for cash or checks and drafts, the equivalent of cash, is constitutional and valid because it is within the police power of the state.

I. C. A., secs. 22-1002, 22-1004, 22-1005, 22-1008 and 22-1015, are as follows:

Sec. 22-1002. "A farm produce broker, farm produce dealer, or farm produce commission merchant within the meaning of this act is any person who shall contract to purchase, or who shall handle for compensation or promise thereof, for the purpose of resale or sale or who shall handle on account of or as an agent for another, any farm produce as herein defined, or who sells or offers for sale, who buys or offers to buy, negotiates or offers to negotiate the sale or purchase of fruits, vegetables and products of the apiary or any interest therein, either directly or indirectly. The provisions of this act shall not apply to any person who grows or produces farm produce, or purchases farm produce for his own use, nor to any person, who, being the owner of such farm produce, sells, exchanges, or otherwise disposes of it for his own account, nor to any person who makes purchase of such farm produce for the purpose of retail sale within the state, and who does resell such farm produce in less than carload lots and in the retail trade within the state."

Sec. 22-1004. "The word 'consignor' as used in this act shall be deemed to be any person who has by contract sold and delivered in car lot or lots other than for cash in hand, any farm produce as the same is defined in this act, to any farm produce broker, farm produce dealer, or farm produce commission merchant, or any person who has by contract delivered in car lot or lots farm produce as the same is defined in this act to any farm produce broker, farm produce dealer or farm produce commission merchant to be sold by such broker, dealer or commission merchant for compensation either as agent or otherwise."

Sec. 22-1005. "No person shall act as farm produce broker, farm produce dealer, or farm produce commission merchant within the meaning of this act without first having obtained a license and given a bond as hereinafter described. Such license shall expire on June 1st of each year and must be renewed yearly."

Sec. 22-1008. "The bond herein required to be given shall be conditioned that said applicant will conduct and transact his business honestly and without fraud of any kind or nature and will comply with the provisions of this act and all the laws of the state of Idaho. Any person injured by dishonesty, fraud or violation of the provisions of this act or of the laws of the state of Idaho, committed by any person licensed under the provisions of this act and while engaged in such business shall have a right of action on such bond for his damages not exceeding the amount of the bond."

Sec. 22-1015. "The violation of any of the provisions of this act shall constitute a misdemeanor, any person upon being convicted of such violation shall be punished according to law."

Section 22-1008 was amended in 1933, Sess. Laws, 1933, chap. 130, p. 200, but this suit is for the purpose of enjoining a prosecution for alleged violation of the law in 1932, and that amendment has no bearing on the question before us.

These sections were originally enacted as parts of Idaho Sess Laws, 1927, chap. 236, p. 351, and in that portion of the act which is now sec. 22-1002, and which exempts certain classes of persons from the operation of the law, was included "any person who purchases for cash and makes immediate payment in full upon delivery." That exemption was eliminated...