In re Watson

• Decision Date: 09 December 1903
• Parties: In re WATSON.
• Court: South Dakota Supreme Court

97 N.W. 463

17 S.D. 486

In re WATSON.

Supreme Court of South Dakota

December 9, 1903

Appeal from Circuit Court, Minnehaha County.

Writ of habeas corpus proceedings by James Watson for his discharge from custody under a commitment issued on his conviction of peddling without a license. From a judgment directing his release from custody, the state appeals. Reversed.

W. D Scott, State's Atty., and C. O. Bailey, for the State. Joe Kirby, for respondent.

HANEY P. J.

This proceeding, instituted in the circuit court by James Watson to secure his discharge from custody under a warrant of commitment issued by a justice of the peace upon a conviction on the charge of dealing as a peddler without a license resulted in his release, and the state appealed.

It is contended that the act upon which the conviction was based is unconstitutional, and such was, we assume, the view of the learned circuit court, as it seems to have been conceded that the proceedings before the justice were in all respects regular and within the terms of the statute. The act, the validity of which is thus attacked, is as follows:

"Section 1. Whoever shall deal in the selling of goods wares or merchandise, except nursery stock, agricultural products, including milk, butter, eggs and cheese, by going about from place to place to sell the same, is declared to be a peddler, provided, that this section shall be intended to include among those required to obtain a license as peddlers all such persons as are transient merchants, traders or dealers; such persons as bring into any town, city or village in any manner goods, wares, merchandise, notions or other articles of trade except such as are excepted in this section, for the purpose of selling the same in the manner provided in this section, and do not become permanent merchants, traders or dealers in such town, city or village; permanent merchants, traders and dealers being here defined to be those who pay taxes in the county where the business is carried on upon their goods, wares, merchandise or other articles of trade the same as other resident dealers.

Sec. 2. No person shall deal as a peddler without a license issued annually and no two or more persons shall deal under the same license as partners, agents or otherwise.

Sec. 3. Every license shall state the manner in which the dealing is carried on whether on foot or with one or more beasts of burden, the kind of cart, wagon or carriage, or if on water the kind of boat or vessel to be employed, and shall be in force and effect for one year from the date of issue and shall apply and be effectual only in the county in and by which it is issued.

Sec. 4. Any person may obtain a peddler's license by applying to the county auditor of the county in which he wishes to carry on his trade, and by paying the amount herein provided for said license.

Sec. 5. Every such applicant before he shall be entitled to such license shall pay the county auditor the following license fees: If he intends to travel by bicycle or on foot, including railroad or other public conveyances, but carry with him his goods, wares or merchandise, twenty dollars; if he intends to travel and carry his goods with a single horse or other beast carrying or drawing a burden, thirty-five dollars; if he intends to travel with a vehicle or carriage drawn with two or more horses or other animals, fifty dollars; if he intends to deal as a transient merchant, trader or dealer, seventy-five dollars, provided, that any such applicant taking license as such transient merchant, trader or dealer shall in addition to the amount paid for such license also pay to the authorities of the said town, city or village where he may sell or offer for sale any goods, wares or merchandise, a sum not exceeding fifty dollars per day for each day that such person may be engaged in selling or disposing of any such goods, wares or merchandise to be determined by ordinance or resolution of the town, city or village where he may engage in business aforesaid, which ordinance or resolution shall provide when and in what manner such per diem shall be paid.

Sec. 6. All sums received by the county auditor for peddlers' license shall be by him deposited with the county treasurer and covered into the county general fund for use of the county.

Sec. 7. Any person who shall be found dealing as a peddler without having paid and received the license herein specified or who shall upon demand of any sheriff, constable or any householder of the county refuse to produce his license and permit the same to be read shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than twenty-five dollars nor more than one hundred dollars.

Sec. 8. The provisions of this act shall not apply to traveling salesmen doing business with retail merchants, manufacturers or jobbers, or with state, county, township and city officials whether they carry samples or not."

Laws 1903, pp. 249, 250, c. 190.

The accused was charged with dealing in goods, wares, and merchandise not excepted by the statute, by going about from place to place to sell the same, in a vehicle drawn by two horses, without having procured the required license. Therefore, for the purpose of this appeal, his case will be regarded as falling within the first class of occupations defined in section 1, and the statute will be considered only with reference to its effect on the particular business in which he was engaged. State v. Church, 6 S. D. 89, 60 N.W. 143; State v. Mitchell, 3 S. D. 223, 52 N.W. 1052; State v. Becker, 3 S. D. 29, 51 N.W. 1018. And in thus considering the enactment, it should be constantly borne in mind that there are no limitations upon the legislative powers of the Legislature in this state, except such as are imposed by the state and federal Constitutions; that no legislative act should be declared unconstitutional unless the conflict between its provisions and some principle of constitutional law is so plain and palpable as to leave no reasonable doubt of its validity; and that, where the language of a statute is susceptible of any reasonable construction which is consistent with the Constitution, that interpretation will be given it.

Without deciding whether the burden imposed by this statute upon persons engaged in the business of going from place to place to sell goods, wares, and merchandise is a tax or a license--without deciding whether we are dealing with an exercise of the taxing power or of the police power--we will proceed to consider the act with reference to the limitations upon each.

If the burden imposed is a tax, it is a tax on the occupation, not on the goods sold. It could not be otherwise regarded in this state, and be sustained, as the Constitution requires all real and personal property to be taxed "according to its value in money." Const. art. 11, § 2. It appears to be the concurrent voice of all the authorities that in the absence of any inhibition, express or implied, in the Constitution, the Legislature has power to either directly levy and collect license taxes on any business or occupation, or to delegate like authority to a municipal corporation. City of Newton v. Atchison, 31 Kan. 151, 1 P. 288, 47 Am. Rep. 486. In this state all legislative power, save as restricted by the state and federal Constitutions, is vested in the Legislature. Taxation is a legislative power. There is no inherent vice in the taxation of vocations. On the contrary, business is as legitimate a subject of taxation as property. City of Newton v. Atchison, supra. Then the question arises whether our state Constitution either expressly or impliedly inhibits taxes on occupations. Section 2, art. 11, reads as follows: "All taxes to be raised in this state shall be uniform on all real and personal property, according to its value in money, to be ascertained by such rules of appraisement and assessment as may be prescribed by the Legislature by general law, so that every person and corporation shall pay a tax in proportion to the value of his, her or its property. And the Legislature shall provide by general law for the assessing and levying of taxes on all corporation property, as near as may be by the same methods as are provided for assessing and levying of taxes on individual property." Though numerous other state Constitutions have similar provisions, reasonably exhaustive research has disclosed none expressed in the same language. The phraseology of the foregoing section appears to be peculiar to this state, and is not, it must be confessed, entirely free from apparent ambiguity, as a cursory reading might convey the impression that it was intended to limit all taxation to taxes on property. We think, however, that a careful consideration of the section in connection with other portions of the Constitution compels the conclusion that such was not the intention. We are satisfied the...