In re Abel

• Decision Date: 29 June 1904
• Citation: 10 Idaho 288,77 P. 621
• Parties: IN RE D. C. ABEL
• Court: Idaho Supreme Court

77 P. 621

10 Idaho 288

IN RE D. C. ABEL

Supreme Court of Idaho

June 29, 1904

LICENSE TAX-RESTRAINT OF TRADE-INTERSTATE COMMERCE-CONSTITUTIONAL LAW.

1. Under the provisions of an act providing for the licensing of peddlers, hawkers and solicitors and prescribing penalty for failure to comply with the provisions of said act, approved March 16, 1901 (Sess. Laws 1901, p. 155), an agent or solicitor for a wholesale merchant, which agent has the goods which he is selling in this state, is required to pay the license tax provided by said act before he can legally do business in this state.

2. The phrase "taking orders," as used in the eighth section of said act, does not contemplate that the runner shall have the goods with him at the time of the sale, but in the common acceptation of the phrase, the agent or runner sells the goods by sample, taking orders therefor, and thereafter delivers the goods.

3. That part of section 8 of said act, by which it is sought to confine the taking of orders for goods sold to merchants only, is clear legislation and in contravention of both federal and state constitutions, but as the remaining part of said act is capable of being enforced in accordance with the legislative intent wholly independent of that provision, that provision is rejected therefrom and the remaining part thereof permitted to stand.

4. That provision of said section 8 referring to peddlers and hawkers in farm products applies to farm products of other states as well as those of the state of Idaho, and is not class legislation, and in no manner interferes with interstate commerce.

5. Internal and domestic commerce are subject to the taxing and police power of the state.

(Syllabus by the court.)

ORIGINAL application for a writ of habeas corpus. Writ denied.

Writ denied.

Forney & Moore, for Petitioner.

This law is class legislation; it grants special immunities to special classes; it violates the rule of equality before the law; it violates section 19, article 3 of the constitution of Idaho; and also section 5 of article 7 of the constitution of the state of Idaho. (Brooks v. Hyde, 37 Cal. 366 375; Ex parte Yale, 24 Cal. 241, 85 Am. Dec. 62; Youngs v. Hall, 9 Nev. 218; Cohen v. Wright, 22 Cal 293; Ex parte Jentzsch, 112 Cal. 468, 44 P. 803, 32 L. R. A 664; Van Harlingen v. Doyle, 134 Cal. 53, 66 P. 45, 54 L. R. A. 771.) It is one of the highest privileges of the citizen that he may engage in legitimate business on equal terms, the same terms granted to all citizens. (Cooley's Constitutional Limitations, 4th ed., p. 393.) It is further contended that the law in question is in violation of section 2 of article 4 of the constitution of the United States, and of section 1 of the fourteenth amendment of the constitution of the United States. (Union Sewer Co. v. Connally, 99 F. 354; Brown v. Jacobs Pharmacy, 115 Ga. 429, 90 Am. St. Rep. 126, 41 S.E. 553, 57 L. R. A. 547; State v. Waters Pierce Oil Co. (Tex. Civ. App.), 67 S.W. 1057; State v. Garbroski, 111 Iowa 496, 82 Am. St. Rep. 524, 82 N.W. 959, 56 L. R. A. 570; In re Langford, 57 F. 570; Ex parte Westafield, 55 Cal. 550, 36 Am. Rep. 47; State ex rel. Garrabad v. Dering, 84 Wis. 585, 54 N.W. 1104, 19 L. R. A. 858; Pasadena v. Stimpson, 91 Cal. 238, 27 P. 604; Steed v. Harvey, 18 Utah 367, 72 Am. St. Rep. 789, 54 P. 1011; Apex etc. Co. v. Garbade, 32 Or. 582, 52 P. 573, 54 P. 367, 882.) In the case of Chilvers v. People, 11 Mich. 43, the court says the object of a license is to confer a right that does not exist without a license. A mere tax imposed upon a business or occupation, therefore, is not a license unless the license confers a right or privilege as to the business which would not otherwise exist. (Cooley's Constitutional Limitations, 4th ed., 242, 393; Tiedeman's Limitation of Police Power, 278.) A very interesting discussion of this subject has recently been made by Judge Bartsch of the supreme court of Utah in Cache County v. Jenson, 21 Utah 207, 61 P. 303; State v. Hinman, 65 N.H. 103, 18 A. 194, 23 Am. St. Rep. 22, and note. This is the third brief filed by petitioner in this case. In order that the court may be as fully advised as possible as to the position of the petitioner, we have taken the liberty of citing these additional authorities: Simrall v. City of Covington, 90 Ky. 444, 29 Am. St. Rep. 398; Sayre Borough v. Phillips, 148 Pa. 482, 33 Am. St. Rep. 843; Chaddock v. Day, 75 Mich. 527, 13 Am. St. Rep. 468; Nichols v. Walters, 37 Minn. 264, 33 N.W. 800; State v. Hammer, 42 N.J.L. 435.

Attorney General Bagley, for the State, files no brief.

SULLIVAN, C. J. Stockslager and Ailshie, J. J., concur.

OPINION

The facts are stated in the opinion.

SULLIVAN, C. J.

--This is an original application to this court for a writ of habeas corpus and involves the constitutionality of an act approved the 16th of March, 1901. (Sixth Sess. Laws p. 155.) The following facts appear from the record: That the petitioner is a resident of the state of Iowa and was, at the time of his arrest, an agent of Mason & Abel, wholesale merchants of St. Louis, Missouri; that the said Abel was traveling through Latah county as such agent and solicitor and selling buggies at retail to various people in Latah county at the time of his arrest. He was brought before the court on complaint of the district attorney of Latah county and fined, and is now serving a term of imprisonment in the county jail in default of the payment of said fine. The case was submitted to the trial court on an agreed statement of facts, which statement contains the following: That the petitioner was the agent and solicitor of the firm above named, which firm is the manufacturer and wholesale dealer of buggies; that the petitioner was the duly authorized agent and solicitor of said firm for buggies in the state of Idaho and as such agent and solicitor he engaged in the business of selling and offering to sell buggies in the state of Idaho by delivering to the purchaser at the time of sale the buggies so sold, and that on the thirteenth day of May, 1904, in said county, the petitioner sold to one Charles Hobart, and delivered the same to him, a certain buggy belonging to said firm; that neither the petitioner nor said firm at the time of such sale had procured a license from the county auditor of said county before engaging in said business and making said sale, as required by the above-mentioned law. It is further agreed that prior to the commencement of this action the board of county commissioners of said county fixed the license under said act as follows: Peddlers or hawkers on foot, $ 25 per year; peddlers or hawkers with wagon, $ 50 per year.

Section 1 of said act makes it unlawful to peddle without a license. Section 2 provides that every peddler or hawker, traveling with a pack and on foot, shall pay a license of not less than $ 25 nor more than $ 50 per year. Section 3 provides that every peddler or hawker, traveling with a wagon or other vehicle, shall pay a license of not less than $ 50 nor more than $ 100 per year. Section 4 provides that every peddler or solicitor taking orders for groceries, clothing hardware, or other mercantile establishments shall pay a license of not less than $ 75 nor more than $ 125 per year. Section 5 provides that the money so received for licenses shall be turned into the general fund of the county. Section 6 provides that every peddler or hawker shall be compelled to exhibit his license when called upon by any pa...