In re Kimmel

• Decision Date: 28 March 1890
• Citation: 41 F. 775
• Parties: In re KIMMEL.
• Court: U.S. District Court — District of Minnesota

41 F. 775

In re KIMMEL.

United States District Court, D. Minnesota.

March 28, 1890

H. P Camden, for petitioner.

John M Greenman, for City of Austin.

NELSON J.

A petition for a writ of habeas corpus is presented by G. F Kimmel. The petitioner prays the court to inquire into the legality of his commitment to, and imprisonment in, the county jail, under an ordinance of the city of Austin, Mower county, in this district, which he alleges to be repugnant to the constitution of the United States. By the charter of the city of Austin, which was passed by the legislature of Minnesota, and approved February, 1887, the common council is authorized, inter alia, 'to license and regulate * * * peddlers and persons selling goods at retail by sample,' and, in terms, it provides that 'the power to regulate * * * shall extend to, and be considered to include, * * * the power to define who shall be considered * * *peddlers." The common council, acting under this provision of the city charter, passed the following ordinance; and for an alleged violation of it the prisoner was committed to jail. The ordinance reads as follows:

'Ordinance 116. An ordinance regulating and for licensing hawkers, peddlers, and persons selling goods at retail by sample. The common council of the city of Austin do ordain: Section 1. No person shall peddle, * * * or go from house to house or place to place, within the limits of the city of Austin, and sell, dispose of, or offer for sale, by sample, at retail, any goods, wares, merchandise, or any article of any description whatsoever, without having first obtained a license therefor: provided, that nothing herein contained shall preclude any person or persons who shall have procured a special permit therefor as provided for in sec. 3 of this ordinance. Sec. 2. Any person or persons, and all persons who travel from house to house, in any way or manner, for the purpose of carrying to sell, or exposing to sell, barter, or exchange, at retail, or to consumers, any goods, wares, merchandise, notions, or other articles of trade whatsoever, not their own manufacture, whether by sample or otherwise, and whether the said goods, wares, merchandise, notions, and other articles of trade, whatsoever, are delivered at the time of sale, or to be delivered at some future day, are declared to be peddlers, and subject to the provisions of this ordinance.'

Section 3 provides how a license shall be obtained, and the amount to be paid for a license or special permit. Sections 4 and 5 provide for the arrest, fine, or imprisonment, on conviction of violating the provisions of the ordinance. The writ of habeas corpus was issued, and proper proceedings have been taken by return of the sheriff and traverse thereto.

The following statement of facts raises the question to be determined: The petitioner, G. F. Kimmel, is a resident of the state of Nebraska, and traveled on foot from house to house, offering to sell...