In re Lipschitz

• Decision Date: 03 June 1903
• Docket Number: 6731
• Citation: 95 N.W. 157,14 N.D. 622
• Parties: IN RE LIPSCHITZ
• Court: North Dakota Supreme Court

95 N.W. 157

14 N.D. 622

IN RE LIPSCHITZ

No. 6731

Supreme Court of North Dakota

June 3, 1903

Application of M. Lipschitz for writ of habeas corpus.

Writ denied.

Bosard & Bosard, for petitioner.

J. B Wineman, State's Attorney, for the State.

OPINION

YOUNG C. J.

The petitioner is in the custody of the defendant, as sheriff of Grand Forks county, upon a judgment of conviction for peddling without a license. After having been refused a writ of habeas corpus by the district court of tat county, he applied to this court for such writ, and the same was issued. A written stipulation was entered into by counsel for petitioner and counsel for defendant in which the service of the writ and the presence of the petitioner before the court was waived. It was also agreed that the facts alleged in the petition, including the information, judge's minutes and commitment attached thereto, were true; further, that the only question as to the legality of defendant's confinement is the alleged unconstitutionality of Senate Bill No. 12 of the Laws of 1903, entitled "An act taxing the occupation of hawkers and peddlers," etc., for violating which the defendant was convicted; and further, that, in the event the court should hold said act to be constitutional, the writ should be quashed; and if, on the other hand, the act shall be held void, the writ shall be granted and defendant discharged. The petition alleges that the petitioner at the time of his arrest was "engaged in the business of peddling, bartering and exchanging goods, wares and merchandise within the county of Grand Forks, and for such purpose traveled from place to place in said county, carrying goods to sell, and offering and exposing goods to sell;" that he had no license from the auditor of said county; that he was informed against by the state's attorney of Grand Forks county, tried and convicted for violating the law entitled "An act taxing the occupation of hawkers and peddlers, regulating the licensing of persons engaged in such occupation, increasing the ordinary county revenue by such taxation, and prescribing penalties for the violation of its provisions," entitled "Senate Bill No. 12 of the Laws of 1903," and approved with an emergency clause on March 2, 1903; that the alleged unlawful act committed by him is not a public offense for the reason that said law is unconstitutional, and that his detention is therefore unlawful. The act in question consists of nine sections. Section 1 provides that "it shall be unlawful for any person to travel from place to place in any county of this state, for the purpose of carrying to sell, or exposing or offering to sell, barter or exchange any goods, wares, merchandise or any other property whatever, without first obtaining a license therefor from the auditor of said county." Sections 2, 3, 4 and 5 regulate the application for the license, prescribe the amount to be paid for the license, and provide for its issuance and recording by the county auditor. Section 6 provides that "all money paid into the county treasury under the provisions of this act, shall be placed to the credit of the ordinary county revenue, including the support of the poor, to be disbursed in the same manner as the funds derived from the usual course of taxation for such account." Section 7 makes a violation of the act a misdemeanor, punishable by a fine not exceeding $ 50, or by imprisonment not exceeding thirty days. Section 8 reserves to incorporated cities, towns and villages all existing rights to license and regulate peddlers within their corporate limits, and section 9 repeals all inconsistent acts.

By this act the legislature has attempted to tax the occupation of hawking and peddling. The first question which arises relates to the power of that body to tax occupations. This question must be resolved in favor of the existence of such power. It must be conceded that the power to raise revenue by taxation is a necessary attribute of sovereignty, which may be exercised by the legislature subject only to such restrictions or limitations as are imposed by the state or federal constitution; and, further, that the legislature, in exercising this power, and in selecting subjects for taxation, is not confined to property, but may also tax occupations. Neither the federal constitution nor the constitution of this state forbid the taxing of occupations. It cannot be questioned, therefore, that the legislature, in this absence of constitution inhibition, has the undoubted right to tax the occupation of peddling. This is not debatable. The authorities, both state and federal, are unanimous to the effect that "a state legislature may tax trades, professions and occupations in the absence of inhibition in the state constitution in that regard." Ficklen v. Taxing District of Shelby Co., 145 U.S. 1, 12 S.Ct. 810, 36 L.Ed. 601; Standard U. Cable Co. v. Attorney General, 46 N.J.Eq. 270, 19 A. 733, 19 Am. St. Rep. 394; People v. Coleman et al., 4 Cal. 46, 60 Am. Dec. 581; Cooley on Tax'n, 570. See, also, cases cited 21 Am. & Eng. Enc. Law (2d Ed.) 776, under note 7.

Counsel for petitioner rely chiefly upon grounds which were involved in and considered in State v. O'Connor, 5 N.D 629, 67 N.W. 824, and State v. Klectzen, 8 N.D. 286, 78 N.W. 984, in which cases two prior acts licensing hawkers and peddlers were declared void by this court. In State v. O'Connor, chapter 142, p. 430, Laws 1890, amended and re-enacted in the Revised Codes of 1895 as sections 1738 to 1743, inclusive, was held void for the sole reason that the license tax imposed by that act was an unlawful interference with interstate commerce; following Brennan v. City of Titusville, 153 U.S. 289, 14 S.Ct. 829, 38 L.Ed. 719. It is claimed that the act under consideration is void for the same reason. We are of opinion that it is not open to this objection. The act of 1890 not only exacted a license fee from persons who traveled about from place to place within the state carrying goods with them for delivery, but also in plain terms included persons who offered to sell goods, "whether by sample or otherwise, and whether such goods, wares, merchandise, notions or other articles of trade whatsoever, are delivered at the time of sale, or to be delivered at some future time." Mr. Justice Corliss, who delivered the opinion of the court in the above case, said that upon the authority of Brennan v. City of Titusville, supra, the act "is, so far as it assumes to tax those who sell by sample goods of other states, to be thereafter delivered, an unlawful interference with the exclusive authority of congress to regulate interstate commerce, and therefore is, to that extent, void. * * * The statute * * * declares that all persons who offer for sale by sample any goods, wares, merchandise or other articles of trade must take out a license and pay the statutory fee therefor. It is obvious that this law cannot stand as it was enacted. All persons cannot be compelled to take out such license and pay such a fee. Those who offer for sale by sample goods to be shipped from other states cannot be affected by its provisions." That this is a correct interpretation of the act then under consideration, and also a correct statement of the law applicable thereto, cannot be doubted. The present act, however, does not come within either the letter or the spirit of the above case. It does not in fact place a tax or burden upon interstate commerce. On the contrary, it relates entirely to commerce within the state. It does not include persons soliciting sales of goods by sample for future delivery, as did the former act. It will be noticed by reference to section 1 that this act only includes persons traveling from place to place carrying goods to sell, etc. The objectionable provisions of the 1890 act, above quoted, imposing a license upon those who sold by sample for future delivery, and for which reason alone that act was held invalid, are not contained in the present act. In Emert v. Missouri, 156 U.S. 296, 15 S.Ct. 367, 39 L.Ed. 430, a statute of Missouri, which required every peddler to procure a license and pay a tax therefor, and imposed a penalty for peddling without a license, was held, after an extended review of the federal authorities, not to be repugnant to the power given to congress to regulate commerce "as applied to a peddler within the state of sewing machines made in another state by a corporation of that state, and sent by it to him to sell on its account and as its agent." In State v. Montgomery, 92 Me. 433, 43 A. 13, the hawkers' and peddlers' act of 1889 of that state (Laws 1889, c. 298) was held valid against the objection we are now considering. The court said: "Nor is the license fee prescribed by the statute a tax upon interstate commerce. The statute has no reference to the business of soliciting orders for, or offering for sale, property situated without the state, to be followed by a transfer of the goods from one state to another, as was the case in Brennan v. Titusville, supra; Crutcher v. Kentucky, 141 U.S. 47 (11 S.Ct. 851, 35 L.Ed. 649); Robbins v. Shelby Co., 120 U.S. 489 (7 S.Ct. 592, 30 L.Ed. 694); Corson v. Maryland, 120 U.S. 502 (7 S.Ct. 655, 30 L.Ed. 699)-- all of which cases were cited by the defendant. The statute contemplates the business of an itinerant peddler, going about from place to place, having his goods with him, exposing them for sale, selling them. Unless he has them with him, he cannot expose them for sale; he cannot sell them, within the meaning of the statute. The goods, if ever without the state, were within the state when exposed for sale, and thus had ceased to be the subject of interstate commerce. By breaking the packages, and traveling with them as an itinerant peddler, the owner...